In this case the Massachusetts Supreme Judicial Court faced the question whether a local zoning board of appeals, when granting a comprehensive permit for a mixed residential and commercial development containing the requisite below-market-rate units under G. L. c. 40B, §§ 20 - 23, (“Chapter 40B”), may override commercial dimensional zoning requirements otherwise applicable to commercial components of the project. In a unanimous decision rendered on November 20, 2007, the Court concluded that, when commercial use is permitted on the property to be developed, the local board has this override authority.
As NELF argued in its amicus brief, a decision to the contrary would have effectively precluded commercial components in a Chapter 40B project even when necessary to render the project economical. The Court held that allowing “an incidental commercial component under the umbrella of the comprehensive permit provides additional incentives, including economic, to developers to establish affordable housing, and serves to further the development of needed affordable housing.” The Court observed that if the proposed housing development were “a pretext for commercial development,” that would be basis to challenge the comprehensive permit. In its brief NELF had emphasized the urgent need of the Massachusetts business community for more affordable housing for its work force, noting that Chapter 40B is the multi-family housing option of choice for many local developers.