In a rare limitation on the broad scope of Massachusetts’ affordable housing law, the state’s top court ruled that amendments by a local board to municipally owned deed restrictions are not covered by the law.
In the case of 135 Wells Avenue, LLC v. Housing Appeals Committee et al, the Massachusetts Supreme Judicial Court considered in November whether the statute governing affordable housing, Mass. General Laws chapter 40B, § 21 (known as Chapter 40B), which allows local zoning boards to issue “permits or approvals” and dispense with local "requirements or regulations" encompasses the local board’s amendments of municipally owned deed restrictions. 478 Mass. 346 (Nov. 13, 2017). The developer, Cabot, Cabot & Forbes, was blocked from developing a 334-unit affordable housing apartment complex because the City of Newton’s aldermen decided against amending a municipally owned negative easement that prohibited residential development on that parcel. Cabot then attempted to seek the needed amendment from Newton’s Zoning Board of Appeals (ZBA). Abiding by precedent, the Court held that Chapter 40B does not grant the ZBA authority to amend a municipally owned deed restriction, which is a property right; the power to do so rests solely with the City’s aldermen.
The Newton parcel in question is subject to a 99-year deed restriction originally recorded by the City in 1968. The deed restriction contains limits for building size, location, and use. It requires that any buildings on the parcel be for “certain, but not all, of the uses permitted in a limited manufacturing district.” Since 1971, the aldermen had granted 20 amendments to the parcel’s deed...
