Zoning Bd. of Appeals of Wellesley v. Ardemore Apartments Limited Partnership, 436 Mass. 811, 767 N.E.2d 584 (2002). 

This case involves the duration of affordable housing restrictions on property developed under the comprehensive permit provisions of Massachusetts General Laws Chapter 40B, also known as the Anti-Snob Zoning Act. Chapter 40B permits a developer who sets aside a certain number of subsidized housing units in a new development pursuant to a government affordable housing program to override local zoning requirements. The developer of Ardemore Apartments agreed to set aside nine subsidized units for a fifteen- year period and received, in return, a comprehensive permit overriding local Wellesley zoning to build a 36-unit multi-family development. The subsidizing agency explicitly provided that the units could be rented at market rate after the fifteen-year subsidy period. When the subsidy period was set to expire, Wellesley sued for declaratory judgment to require Ardemore to continue to rent the nine set-aside units as “affordable” housing in perpetuity or to tear down the entire development as nonconforming with Wellesley zoning. The trial court decided in favor of Wellesley, and Ardemore appealed. The Massachusetts Supreme Judicial Court granted direct appellate review. NELF’s brief in support of Ardemore argued (1) that the parties’ expectation at the time of construction was that developer’s subsidy obligation would end when the subsidy expired, and (2) that the developer should not be expected to subsidize the nine units in perpetuity itself or find alternate government subsidies after the original program expired. The SJC held that the Legislature granted towns the ability to override local zoning to remedy a lack of affordable housing. Unless the state Housing Appeals Committee decision authorizing a project explicitly limits the period of affordability, the owner must continue to provide affordable units. While the SJC voiced NELF’s concern that permanent affordability restrictions may operate “as an economic disincentive to developers to build affordable housing, “ the SJC nevertheless concluded that “[t]he solution to that problem . . . lies with the Legislature.”