SALISBURY — A provision of the state’s “Housing Choice” law that allows developers of affordable housing to ask that bonds of up to $50,000 be posted by opponents of a project in order to appeal a permit in court will come under scrutiny by the state’s highest court Monday.
The issue before the Supreme Judicial Court: Does the provision apply to “comprehensive permits” granted for an affordable housing project by a city or town, and if it does, shouldn’t a judge first have to make findings that an appeal is being made in bad faith?
The issue came up during a legal challenge by neighbors of a planned 56-unit condominium development on Forest Road in Salisbury, after developer Steven Paquette asked a judge to require that the opponents post a bond to cover the cost of delays in the project due to the appeal.
Last fall, a Salem Superior Court judge ordered that the abutters post a $35,000 bond in order for their appeal to go forward.
Lawyers for the group of eight abutters and nearby residents, who are appealing that order, argue that the language of the law doesn’t specifically include appeals of “comprehensive permits,” only to appeals of a “special permit, variance or site plan” and that even if lawmakers intended to include comprehensive permits, a judge should have to first find that the appeal is being made in bad faith, as well as limit the amount to a specific set of costs.
But the developer and others argue that’s a “nonsensical” misinterpretation of the statute because Chapter 40B specifically allows communities to create in effect a “one stop shop” for developers by issuing a comprehensive permit for a project.
It’s a case that is being watched closely by an unlikely coalition of housing advocates, public agencies, the real estate industry and a group that promotes economic development — all of whom, in friend of the court briefs, argue that the bond requirement is necessary in order to deter “meritless” appeals that are solely intended to hinder the construction of affordable housing.
“The developer may, and indeed frequently does, run out of resources before the case is decided on the merits, resulting in another lost opportunity to build more affordable housing across the Commonwealth,” wrote attorneys for a coalition of organizations and government entities, including the Citizens’ Housing and Planning Association and the Massachusetts Department of Housing and Community Development.
The group includes developers, housing providers and advocates, local officials, banks and mortgage lenders, as well as others, who support the creation of new housing. Among the members is Harborlight Community Partners.
In an affidavit filed with the SJC, Harborlight Executive Director Andrew DeFranza pointed to the nonprofit’s experience after it proposed a Chapter 40B development in Hamilton.
“After three years of working with the community and political leaders, and attending approximately 275 local meetings regarding the project, Harborlight abandoned its efforts because of the serious threat of an abutter appeal,” the brief says.
Department of Housing and Community Development officials signed onto the brief, telling the court that its mission is being “frustrated by frivolous appeals that unduly delay and interfere with affordable housing development.”
The New England Legal Foundation’s Dan Winslow and John Pagliaro also submitted a brief in the case, citing the impact the state’s housing crisis has had on economic development, and why they supported the measure.
Lawyers for the abutters argue, however, that the provision letting judges require a bond (which also sometimes happens in medical malpractice cases) deprives people who will be negatively affected by a project of their right to appeal.
“Compelling plaintiffs to remortgage their homes in order to bring a non-frivolous claim where the law presumes them to have legal standing would be too steep a price to exercise a statutory right to judicial review,” the neighbors’ lawyers Dennis Murphy and Daniel Hill, say in their brief.
Abutters who have legitimate concerns about traffic, drainage or noise would effectively have no recourse, they argue.
They also say that the town has already met its 10% threshold of affordable housing, which allows officials to have more control over future development.
The lawyers for the developer disagree.
“This is a classic NIMBY appeal, in which the plaintiffs have successfully delayed a critical affordable housing project without producing any evidence that they will be negatively impacted in any cognizable way (apart from their clear distaste for affordable housing being developed in their neighborhood),” lawyer Jonathan Silverstein wrote on behalf of the developer.
The 56 duplex-style units would be built on a 27-acre parcel. Fourteen of the units would carry a perpetual restriction as affordable, with 10 of those units being sold only to buyers with household incomes below 80% of the area median income and four available to buyers earning 60% of area median income.
The abutters appeal is still pending in Superior Court. After they appealed the order to post a bond in the case, the Supreme Judicial Court decided to take up the issue.
Courts reporter Julie Manganis can be reached at 978-338-2521, by email at email@example.com or on Twitter at @SNJulieManganis
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