The state's highest court ruled in favor of developers in a pair of decisions released yesterday involving the controversial Chapter 40B statute, which was designed to promote the construction of affordable housing throughout the state.
The law allows affordable-housing developers to bypass most local zoning rules and pursue a streamlined approval process in communities where less than 10 percent of the housing is deemed affordable.
The Supreme Judicial Court ruled on two cases in which proposed 40B developments had been either rejected outright or approved with substantial conditions. While the developers were appealing those decisions to the state, the zoning boards in the two communities, Lexington and Canton, approved other projects that they said pushed them past the 10 percent mark - and thus put local zoning rules back in effect.
The developers argued that this was unfair and a rejection of a Department of Housing and Community Development regulation.
Each case reached Superior Court, where two judges rendered opposite decisions within six months of each other, in late 2006 and last spring.
The Supreme Judicial Court yesterday upheld one of the rulings and rejected the other.
"It's certainly considered good news by my client," said Brian M. Hurley, the Boston lawyer who represents developer Canton Property Holding LLC, which six years ago submitted plans to build more than 200 apartments and single-family homes.
The Canton Zoning Board rejected that application, but the state's Housing Appeals Committee overruled the town. A Superior Court judge tossed out that ruling, however, after the town hit 10 percent by approving other applications. The high court's decision means the case goes back to Superior Court for a new ruling.
In Lexington, a developer proposed 48 units near the Woburn line in 2002, then revised it to 36 units, but the Zoning Board approved it at 28 units.
The Housing Appeals Committee restored the total to 36, and abutters appealed the decision to Superior Court, arguing in part that Lexington had achieved 10 percent through another project, but a judge upheld the committee ruling.
Although the 40B law is unclear about when to calculate a community's affordable-housing percentage in connection with a new application, the state Department of Housing and Community Development had called for the calculation to coincide with the zoning board's decision on that application. The high court said that was a reasonable regulation.
The rulings should ease the anxiety of developers who were wary about investing in the application process in communities that are near the 10 percent threshold, said Paul D. Wilson, a Boston lawyer who has represented 40B developers since the 1980s.
"There was fear in the industry that towns that were particularly unhappy with a particular project would actually go and help another developer get to the finish line sooner so they could safely deny the one they didn't like," he said.
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