Court rules Newton can prioritize bouncy houses over moderate-income apartments on one large parcel

The Supreme Judicial Court today quashed plans for a 334-unit apartment complex in an office park off Nahanton Road in Newton, saying the state's anti-snob-zoning law doesn't apply to the parcel and so the city was within its rights to deny approval for the project - in which 85 apartments would have been rented to people making less than the typical Newton resident.

The state's highest court said this is because the state law only applies to "permits and approvals" - for such things as building height and density, while the issue with the land on Wells Avenue had to do with deed restrictions.

In the 1960s, Sylvania Electric Products bought a 180-acre parcel off Wells Avenue for a manufacturing plant. The city changed the zoning to allow the plant after Sylvania agreed to deed 30 acres to the city for a park and to accept certain restrictions on the land it kept, including limiting the land to "light manufacturing" and to keeping some of the land as open space.

Over the years, the city board of aldermen, acting as the zoning board, approved a variety of non-manufacturing uses for the Sylvania building - which the company never actually used for manufacturing - including a bouncy house.

A developer bought 6.4 acres of the old Sylvania land and in 2014, asked aldermen to change the zoning to allow construction of the apartments and to let it build in part of the open-space land. The developers filed under the anti-snob-zoning law, known as Chapter 40B, which applies to communities with less than 10% of their housing stock being considered low or moderate income.

In its ruling today, the Supreme Judicial Court agreed with both the city and the state Housing Appeals Committee that the law didn't apply in this case because the law doesn't supersede property rights, in the form of deed restrictions. Referring to an earlier case involving a town, the court wrote:

Allowing the board to require the town to grant an easement over municipally-owned property to a private developer would be to take away a real property right from the town, an action fundamentally different action from the types of "permits or approvals" that G. L. c. 40B authorizes a local zoning board to undertake.

But what about decisions to allow non-manufacturing uses, such as a bouncy house, on the land?

It is clear, however, that the aldermen's allowance of prior amendments to the restrictive covenants were not the functional equivalent of permits or approvals; the aldermen were not sitting as a local permitting authority when allowing the amendments pursuant to G. L. c. 40, ยง 3, and the amendments, which affected a real property interest held by the city, were not the same types of permissions as regulations concerning "building construction and design, siting, zoning, health, safety, [or] environment."



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    By on

    if you think subsidized housing helps only black people then you're the racist

    Institutionalized bigotry be

    By on

    Institutionalized bigotry be it racial or economic is equivalent to Jim Crow or MA's old practice of Irish & Italians need not apply.

    That's like saying

    By on

    That's like saying politicians who oppose Powerball are opposed to upward mobility.

    Income restricted, lottery awarded "Affordable" 40B set aside units are not the answer to the "affordable" housing problem in eastern MA.

    On the one hand, more housing

    By on

    On the one hand, more housing is a good thing, especially in expensive Newton, etc. but on the other hand, this is a terrible place for more housing, being as it's in the middle of nowhere surrounded by nothing but offices and with no public transportation access at all. This is one of those times when the City was entirely right to impose the restrictions that it did on that land. The developer really should have known better when they bought the land.


    The state has made a decision on behalf of the individual once again! Bless them!

    uh no. the corp bought the

    By on

    uh no. the corp bought the land knowing full well what the zoning was and that there was an existing deed restriction for open space. if they didn't want to abide by these requirements then they shouldn't have bought the land.

    New development doesn't HAVE to be on the T

    By on

    Yes, it's optimal for tenants and for society if new housing developments have public transportation nearby. However, if the transportation isn't already there, that shouldn't mean that you can't build new housing. Most people in that area drive everywhere. You can't walk to a store or a bus from that location, so isn't it OK to still build the needed housing, even though it means people will need a car?

    Yet another

    By on

    yes, "more housing is good" but this is a terrible spot. Sigh.

    Having access to public transportation is nice but not a deal breaker against building much need housing. If no spot is ideal, you know what happens? Nothing ever gets built.

    Also good for...

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    People who work in the nearby office parks. Tripadvisor could run one of their ubiquitous shuttle buses over to pick their employees up and take them to work.

    40B is the enemy of the middle class

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    don't be fooled by "85 apartments" subsidized because the majority of the apartments are jacked-up corp rental pricing. yes, 40B creates a lottery that selects people to get low rent indefinitely. but otherwise what we have here is a corporation acquiring under priced land then trying to rework the deed to build a luxury high-rise.

    they pretend like they do all this for the poor and needy but look at the sister complex built in Needham. 1 BR's start at $2200/mo and 2 BR's start at $3600/mo. more for those with cats, dogs, parking.

    If you were lucky enough to be chosen in the lottery and had finances just right that day you get 1/2 price rent for life--none available today though:


    Ok, so in your world view girlfriends are rented with 'personality' but the dog (singular?) that's being rented at this Needham building doesn't have enough to cover the cost of girlfriend rental.


    Free tip

    Don't write like a dumbass if you don't want to be perceived as one.

    Thumbs up to your comment!

    By on

    Let the those with lower income tie their hopes to a lottery (good luck, bud, with that) and the majority are out of luck (as always). And, yes, there is a cognitive disconnect between what our city/town leaders think is "affordable" and what the majority of folks can afford.

    And here is another thing. Those of us that make too much to even get in the Needham lottery but not enough to afford any of the new apartment rents.

    No, it isn't

    The entire system of using 40B to pit the interests of the lower class against the middle class, to the benefit of the wealthy, is the enemy of the middle class.

    Please properly identify your enemy.

    Well, I mean really,

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    there's always Brockton, Lynn, Taunton, Worcester for those kinds of people. It's one thing being progressive in the abstract or academic, but in one's own backyard is another matter entirely!

    Hate the game not the player

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    The court is right. How can the developer force the city to change the restrictions that came when Sylvania wanted to use it for manufacturing? Legally, they never had a leg to stand on.

    Sure, it would be nice if the city allowed the change and the housing was built, but that's not what this decision is about. The city had the right to do what they did, even though from a public policy perspective it was wrong.

    Yes, but the deed restrictions have

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    been loose-goosy, per the example:

    "Over the years, the city board of aldermen, acting as the zoning board, approved a variety of non-manufacturing uses for the Sylvania building - which the company never actually used for manufacturing - including a bouncy house."

    So the reasoning is, if the land is/was good for "a variety of non-manufacturing uses", such as a bouncy house, than why not the apartments, which are also non-manufacturing and better than a bouncy houses? Which is a very good argument. The court, however, had to go by the letter of the law.

    And, yes, the city should examine what they are using the land for and if they gave two sh*ts, perhaps find a way to build the apartments. I'm not holding my breath.

    I would imagine

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    In my experiences with bouncy castles, they are temporary structures. Their mention in the story is a red herring.

    In the end, if municipalities cannot control zoning codes, why even have them?

    And again, not that I think Newton is right, only that their argument has legal merit.

    affordable loophole

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    What this ruling essentially means, is that municipalities can now insert deed restrictions into land acquisitions that effectively bar affordable housing. I believe "light industrial" was the covenanted use in question here--a use that both tennis courts and bouncy houses are well-deserving of a waiver amendment (of which there were a recorded 19 over the course of time) in the eyes of the Board of Alderman. While I do agree that upholding property rights for all individuals is a valid mission, I don't believe our local municipalities should be able to skirt chapter 40B in this fashion--at least in cases like this where it's clearly egregious and arbitrary. It's one thing for a deed restriction to apply to a citizen's property interest, but when you start allowing local governments the same latitude, they can usurp any zoning use mandated by the state using this waiver technique. Not a very productive way to achieve legislative land use goals in the Commonwealth.