You asked us to prepare a brief, lay language explanation of the Affordable Housing Land Use Appeals Procedure for distribution to people who are unfamiliar with procedure. Given this purpose, we chose to summarize it in a conversational question and answer format.

What is the Affordable Housing Land Use Appeals Procedure?

The procedure is actually a set of rules developers and courts must follow when a developer sues a town for rejecting a proposed housing project.

What’s special about this procedure? I thought a developer could always sue a town when it rejects his project.

Yes, developers always have the right to go to court when a town, usually through its zoning commission, rejects their project. But the procedure’s rules are different than those that normally apply to zoning suits. In most cases, a developer must convince the court that the town broke a law when it rejected his project. But this is hard to prove since these cases often involve choices towns can legally make, and most judges believe that town officials, not the courts, should decide how a town should be developed.

The procedure, which the legislature created in 1989, turns the table and instead requires towns to convince the court that they had to reject the project because:

1. it could seriously harm public health and safety (e. g. , create a traffic hazard),

2. that the potential harm was greater than the need for affordable housing, and

3. the town could not minimize or prevent the harm by making reasonable changes to the proposed project.

Can any developer use the procedure to sue any town that rejects his project?

No, for three reasons. First, a developer can’t use the procedure in the larger cities and towns that already have many affordable housing units. The state annually tallies the number of these units for each town and exempts those where the total exceeds 10% of a town’s housing stock. The law describes what kinds of units count as affordable.

Second, a developer has to prove that his project is affordable. He easily meets this test if the government is funding the project since government housing programs fund only affordable housing projects. If the developer’s funding is coming from banks or other private sources, then he must price some of the units so that low- and moderate-income people can afford them.

Third, the law prevents developers from using the procedure in a town where there is a moratorium on affordable housing appeals. The law sets conditions under which a town can get a four-year moratorium on these appeals even though less than 10% of its housing is affordable.

What is an affordable unit?

The law recognizes two types of affordable units: those built, acquired, rented with government funds specifically for low- and moderate-income people and those where deeds require the owners to sell or rent the units at prices these people can afford. The latter include some of the units a developer builds after successfully using the procedure.

What does all this mean for me?

Well, that’s for you to decide, but it might depend on where you currently live. If you live in a city and can’t afford to live anywhere else, the procedure could give you more housing choices. The same is true if you grew up or work in a suburb, but can’t afford to live there.

If you live in a suburb with little affordable housing, you might view the procedure as a way to physically and socially diversify the town or expand its tax base. Or you might view it as having a potentially opposite effect, such as congested streets, less open space, crowded classrooms, and increased spending and taxes needed to serve the new development. (But developers and others argue that new developments generate enough new taxes to pay for the services they require. )

Regardless of where you live, you might regard the procedure as a way to encourage all towns to address the state’s affordable housing needs. Or, you might regard it as the state infringing on the rights of a town and its citizens to decide how the town should be developed.

JR: ts