The Supreme Judicial Court has thrown out an abutters’ lawsuit to block an affordable housing development in Lexington.
The court ruled Thursday that the abutters’ appeal is “moot” because the original permit for the 28-unit project being disputed by the neighbors was “inoperative.”
While siding with the developer in this case, the court also said the abutters could have appealed an amended permit issued two years later, but have now run out of time.
The case involves a development proposed under the state’s Chapter 40B law. The law enables developers building projects with affordable units to go through a streamlined permitting process in communities with less than 10 percent affordable housing.
Some legal experts say the decision failed to clear up a lot of the confusion that arises with projects proposed under Chapter 40B, because multiple avenues of appeals are allowed.
“From a developer’s perspective, the decision of the SJC is disappointing, as it will likely lead to increased permitting time for comprehensive permit applications and will undoubtedly spawn more litigation,” said Theodore Regnante, a Wakefield attorney who represents developers.
Rising Tide Development originally applied for a permit to build 48 units off Lowell Street, but the Lexington Board of Appeals issued a permit for 28. The developer appealed to the Housing Appeals Committee, a state administrative agency, arguing that the reduced number of units made the project infeasible.
At about the same time, a group of 13 neighbors appealed to Suffolk Superior Court, arguing the 28-unit project would negatively affect their properties.
The HAC ordered the town to issue a permit for 36 homes in 2005. The Superior Court dismissed the abutters’ appeal, saying it was moot because the originally contested permit issued by the town, for 28 units, was no longer operative.
The Supreme Judicial Court agreed with the lower court’s decision.
“Although we conclude that the instant action is moot, the abutters could have brought a timely appeal to challenge the operative comprehensive permit, that is, the one whose issuance was ordered by the HAC in 2005,” according to the SJC’s ruling.
Russell Tanner, of Rising Tide Development, said he was thrilled that the decision “has put some finality to this particular dispute.”
“It’s been a very long unfortunate set of disputes with the abutters on this project, going back almost five years,” said Tanner. “It’s been a huge delay and obviously it meant for our project missing the strong [housing] market of the earlier part of the decade. This kind of delay is extremely hard on projects, particularly those of this scale.”
