* Editor in Chief, Boston College Environmental Affairs Law Review, 2000–01. The author wishes to thank his wife, Jessica, who shares his passion for justice in housing. He also wishes to thank Jane Jacobs for her inspiration.
1 See Harvard Joint Center for Housing Studies, The State of the Nation’s Housing: 2000, at 3 (2000) [hereinafter State of the Nation’s Housing]; Timothy J. Choppin, Note, Breaking the Exclusionary Land Use Regulation Barrier: Policies to Promote Affordable Housing in the Suburbs, 82 Geo. L.J. 2039, 204243, 2044 (1994); Paul K. Stockman, Note, Anti–Snob Zoning in Massachusetts: Assessing One Attempt at Opening the Suburbs to Affordable Housing, 78 Va. L. Rev. 535, 535 (1992).
2 See State of the Nation’s Housing, supra note 1, at 3. Very low income households earn less than 50% of area median income. See id. at 36.
3 See id.; Cushing N. Dolbeare, The low income housing crisis, in America’s Housing Crisis: What is to be Done? 29, 3136 (Chester Hartman ed., 1983). As early as 1920, critics noted the disparity between rents and the ability to pay rent. See Charles Harris Whittaker, The Joke About Housing 37 (1920).
4 See State of the Nation’s Housing, supra note 1, at 23, 36. Of very low income working households who rent, 71% pay more than 30% of their incomes toward housing. See id. at 36. Thirtytwo percent of working poor owners pay more than 50% of their incomes toward housing. See id.
5 See Choppin, supra note 1, at 2048; Stockman, supra note 1, at 536.
6 See Choppin, supra note 1, at 2045, 2047; Stockman, supra note 1, at 54041.
7 See Stockman, supra note 1, at 54041.
8 See id. at 541.
9 See Mass. Gen. Laws ch. 40B,  2023 (1994 & Supp. 1999).
10 See id.  20, 23.
11 See text and notes infra Part IV. B, C.
12 See Whittaker, supra note 3, at 97. “[L]and in our cities has reached a figure, for house building sites, such as is prohibitive for houses for low wage or low salary workers.” Id. See generally Jacob A. Riis, How the Other Half Lives: Studies Among the Tenements of New York (Dover Publications, Inc. 1971) (1890) (chronicling the living conditions of low income workers in New York City’s Lower East Side); Lloyd Rodwin, Housing and Economic Progress: A Study of the Housing Experiences of Boston’s Middle–Income Families (1961) (explaining the history of the relationship between rising income and available housing).
13 See Housing Act of 1949, Pub. L. No. 81171, 63 Stat. 413 (codified as amended in scattered sections of 12 U.S.C. and 42 U.S.C.).
14 Dolbeare, supra note 3, at 31.
15 See id. at 33. Between 1970 and 1980 available units at rents that those making less than $3,000 per year could afford (paying 30% of their income) dropped by more than half. See id. In 1980, there were “more than twice as many renter households with incomes below $3,000 as there [were] rental units available at 25 percent of their incomes.” Id.
16 See Chester W. Hartman, Housing Advisory Research Committee, Massachusetts Committee on Discrimination in Housing, Low Income Housing in the Boston Area: Needs and Proposals 2 (1964). These data probably undercount substandard units because the study did not examine environmental deficiencies, vermin infestation, or central heating. See id.
17 Id. at 3.
18 See id. at 56.
19 See Massachusetts Advisory Committee to the U.S. Commission on Civil Rights and the Massachusetts Commission Against Discrimination, Route 128: Boston’s Road to Segregation 5573 (1975) [hereinafter Route 128] (arguing that well entrenched, suburban, racially exclusive housing patterns exacerbate attempts to provide affordable housing).
20 See id.
21 See id. at 55.
Racially exclusive housing patterns have become the accepted norm in Boston’s suburban rings. The white segment of society exerts monopolistic control over virtually all buildable land, with little or no consideration of minority rights or needs. Suburban industry has, for the most part, failed to confront the consequences of locating in racially segregated towns. This failure has allowed patterns of exclusion to become well entrenched in suburban employment.
Id.
22 See id. at 55; cf. John T. McGreevey, Parish Boundaries: the Catholic Encounter with Race in the Twentieth–Century Urban North 79110 (1996) (discussing the role urban Catholic parishes played in excluding minorities from neighborhoods to protect property values).
23 See Route 128, supra note 19, at 60.
24 See id.
25 See id.
26 See id. at 6061. “Throughout the suburbs, town committees and town boards will spend more time investigating one moderate income housing proposal than they devote to planning the development of the town as a whole.” Id. at 61.
27 See id. at 61.
28 See Route 128, supra note 19, at 42.
29 See id.
30 See id.
31 See id.
32 See id. at 42. “The reliance on property tax to finance education and town services and the increased demand for housing made it more economical for low density towns to remove land from the market entirely than to risk an increase in the number of families who could not share the tax burden.” Id. at 42
33 See Route 128, supra note 19, at 42.
34 See id.
35 See id.
36 See James Breagy, Citizens Housing and Planning Association of Metropolitan Boston, Overriding the Suburbs: State Intervention for Housing Through the Massachusetts Appeals Process 56 (1976).
37 See Matthew Edel et al., Shaky Palaces: Homeownership and Social Mobility in Boston’s Suburbanization 31 (1984).
38 See Breagy, supra note 36, at 6.
39 See id.
40 See Choppin, supra note 1, at 2048; Stockman, supra note 1, at 536.
41 See Stockman, supra note 1, at 54041.
42 See id.
43 See id.
44 See generally Mass. Gen. Laws ch. 40B,  2023 (1969).
45 See id.  23.
46 See Breagy, supra note 36, at 910.
47 See Mass. Const. art. 89.
48 See Breagy, supra note 36, at 9.
49 See id.
50 See id.
51 Id.
52 See id.
53 See id.
54 See Breagy, supra note 36, at 910. (quoting Statement of State Rep. Martin Linsky (RBrookline) at Suburban Housing Conference, Brandeis University, May 1971); see Ann Verrilli, Citizens’ Housing and Planning Association, Using Chapter 40B to Create Affordable Housing in Suburban and Rural Communities of Massachusetts: Lessons Learned and Recommendations for the Future 7 (1999).
55 See Verrilli, supra note 54, at 7.
56 See Breagy, supra note 36, at 3, 5.
57 See id.
58 See id. at 3.
59 See id. The Comprehensive Permit Law sought to strike a balance between local power and developers’ power to override local zoning. See id. The Committee on Urban Affairs, seeking that balance of interests, found in their 1969 report that
the first and primary responsibility for the healthy growth of any city or town ought to be vested in that city or town. The accompanying bill [40B], while not permitting cities and towns to unreasonably obstruct the construction of a limited amount of adequate low cost housing, encourages such communities to establish conditions on such housing which will be consistent with local needs. This measure provides the least interference with the power of a community to plan for its own future in accommodating the housing crisis which we face.
Verrilli, supra note 54, at 7 (quoting Report of the Committee on Urban Affairs (June 1969)).
60 See Board of Appeals v. Housing Appeals Comm., 294 N.E.2d 393, 40506 (Mass. 1973); Mark Bobrowski, Handbook of Massachusetts Land Use and Planning Law  18.1, at 664 (1993 & Supp. 1999).
61 See Verrilli, supra note 54, at 7.
62 See Board of Appeals, 294 N.E.2d at 401; Bobrowski, supra note 60,  18.1, at 666.
63 Under 20 of 40B, “low or moderate income housing” is “any housing subsidized by the federal or state government, under any program to assist the construction of low or moderate income housing as defined in the applicable federal or state statute, whether built or operated by any public agency or any nonprofit or limited dividend organization.” Mass. Gen. Laws ch. 40B,  20.
64 See id.  20, 21; Bobrowski, supra note 60,  18.1, at 665.
65 See Mass. Gen. Laws ch. 40B,  2021; Bobrowski, supra note 60,  18.1, at 665.
66 Mass. Gen. Laws ch. 40B,  20.
67 Under 20 of 40B, requirements and regulations are
consistent with local needs if they are reasonable in view of the regional need for low and moderate income housing considered with the number of low income persons in the city or town affected and the need to protect the health or safety of the occupants . . . , to promote better site and building design in relation to the surroundings, or to preserve open spaces, and if such requirements and regulations are applied as equally as possible to both subsidized and unsubsidized housing.
Id.
68 See id. Conditions may be consistent with local needs if the proposed site is greater than three tenths of one percent of the municipality’s total land area or ten acres, which ever is larger, in any one calendar year. See id.
69 See id.  22; Bobrowski, supra note 60,  18.1, at 665.
70 See Mass. Gen. Laws ch. 40A,  17; Mass. Gen. Laws ch. 40B,  2122; MASS. REGS. CODE tit. 760,  30.04(2) (1993) [hereinafter citations to the Code of Massachusetts Regulations will be designated “CMR,” e.g., 760 CMR  30.04(2)]; Bobrowski, supra note 60,  18.1, at 665.
71 See Mass. Gen. Laws ch. 40B,  22; Board of Appeals v. Housing Appeals Comm., 294 N.E.2d 393, 415 (Mass. 1973); Bobrowski, supra note 60,  18.1, 18.7, at 665, 69899.
72 See Mass. Gen. Laws ch. 40B,  23; 760 CMR  31.08(1)(a); Bobrowski, supra note 60,  18.1, 18.7.4, at 665, 698.
73 See Board of Appeals, 294 N.E.2d at 413; 760 CMR  31.06(4), 31.07(1)(e).
74 See 760 CMR  31.07(2).
75 See id.  31.07(2)(a).
76 Id.  31.07(2)(b) (emphasis added); cf. Southern Burlington County NAACP v. Mt. Laurel, 336 A.2d 713, 731, 734 (N.J. 1975) (striking down a onehalf acre per detached singlefamily dwelling unit minimum lot size when the town argued the zoning provision was necessary for proper individual lot sewage disposal and water supply). In Mt. Laurel, the court found environmental protection to be a “makeweight to support exclusionary housing measures,” since the town could merely exact new sewers from developers. Mt. Laurel, 336 A.2d at 731.
77 See Bobrowski, supra note 60,  18.7.3.1, at 707.
78 See Board of Appeals, 294 N.E.2d at 41718.
79 See Mass. Gen. Laws ch. 40B,  23.
80 See Bobrowski, supra note 60,  18.7.3.2, at 70910.
81 See Mass. Gen. Laws ch. 40B,  23; Bobrowski, supra note 60,  18.7.3.2, at 709.
82 See Mass. Gen. Laws ch. 40B,  23; 760 CMR  31.05(3); Bobrowski, supra note 60,  18.7.3.2, at 70910.
83 See 760 CMR  31.06(3); Bobrowski, supra note 60,  18.7.3.2, at 710.
84 See 760 CMR  31.06(3); Bobrowski, supra note 60,  18.7.3.2, at 710.
85 See Mass. Gen. Laws ch. 40B,  20, 23; Bobrowski, supra note 60,  18.7.3.2, at 710.
86 See 760 CMR  31.06(3).
87 See id.
88 See id. at  31.07(2)(a)(b).
89 See id.; see, e.g., Harbor Glen Associates v. Hingham, No. 8006 (Mass. Housing Appeals Comm., Aug 20, 1982) (strictly enforcing 40B against town because two market rate developments were allowed to increase nitrogen discharges into water supply while a similar affordable development was rejected for increasing nitrogen discharges).
90 See Verrilli, supra note 54, at 8.
91 See id. The Supreme Judicial Court held 40B constitutional in Board of Appeals v. Housing Appeals Comm., 294 N.E.2d 393, 410, 414 (Mass. 1973).
92 See Verrilli, supra note 54, at 8. It took six years from the passage of 40B in 1969 to get the first project built in Weymouth in 1975, which was a 198unit project for the elderly. See id.
93 See id.
94 See id.
95 See id. at 9.
96 See id. In 1973, President Nixon imposed a moratorium on housing programs. See id. at 9. In late 1974, Congress “scrapped” the major federal housing program for private interest subsidies, cut funding for federal public housing construction, and began the Section 8 rental assistance program. See id. When federal subsidies began to increase, Governor Dukakis shifted state housing funds to urban development, not suburban development. See id. By the early 1980s, Congress had reduced funding for new units to less than 20% of what was available in the late 1970s. See id.
97 See id.
98 See id. at 10.
99 See Verrilli, supra note 54, at 10. Median home prices doubled between 1982 and 1986 and continued to rise until 1989. See id. While the Reagan administration continued to cut back federal housing programs, Massachusetts created three new state programs: the State Housing Assistance for Rental Production program (SHARP), the Tax Exempt Loans to Encourage Rental Production program (TELLER), and the Rental Housing Development Action Loan (RDAL). See id.
100 See id. at 1011.
101 See id. at 11.
102 See id.
103 See Verrilli, supra note 54, at 11. HOP required only 25% of the units built to be affordable and 40% if a comprehensive permit was used. See id. Unfortunately, this caused even more local opposition because only the affordable units built counted toward the municipalities’ 10% affordable housing inventory. See id.
104 Id.
105 See id. at 1112.
106 See id. at 12.
107 See Verrilli, supra note 54, at 12.
108 See id.
109 See 760 CMR  45.02; Verrilli, supra note 54, at 12.
110 See 760 CMR  45.02; Verrilli, supra note 54, at 13. “About 168 [comprehensive permit] applications were filed between 1990 and 1997––an average of 24 a year, compared to an average of 47 a year in the late 1980s, and over 40% (73) used the LIP program.” Verrilli, supra note 54, at 13. Massachusetts’s severe fiscal crisis also decreased the funds available to form local partnerships. See id.
111 See Stuborn Ltd. Partnership v. Barnstable Bd. of Appeals, Decision of Jurisdiction, No. 9801, at 67 (Mass. Housing Appeals Comm., Mar. 5, 1999).
112 Id.
113 See Emily Fabrycki Reed, Tilting at Windmills: The Massachusetts Low and Moderate Income Housing Act, 4 W. New Eng. L. Rev. 105, 12023 (1981) (criticizing HAC delay and suburban use of “dilatory tactics” to slow the comprehensive permit process); Stockman, supra note 1, at 57778; Paul M. Vaughn, Note, The Massachusetts Zoning Appeals Law: First Breach in the Exclusionary Wall, 54 B.U. L. Rev. 37, 5052 (1974) (criticizing procedural problems of attaining a comprehensive permit). But see Roman Petyk & Daniel D. Sullivan, The Anti–Snob Zoning Act: New Potential in a Booming Housing Market, Boston Bar J., July/Aug. 1986, at 10, 16 (arguing that internally subsidized comprehensive permit proposals promote the underlying goals of 40B); Daniel D. Sullivan & Josephine A. McNeil, The Anti–Snob Zoning Act: New Direction in a Soft Market, Boston B. J., July/Aug. 1990, at 9–10 (arguing that the Local Initiative Program is a step toward complete internal subsidization of affordable housing projects).
114 See Stuborn, Decision on Jurisdiction, No. 98–01, at 6–7; Werner Lohe, Chairman, Housing Appeals Committee, Command and Control to Local Control: The Environmental Agenda and the Comprehensive Permit Law, Remarks at the Western New England College School of Law Symposium: Increasing Affordable Housing and Regional Housing Opportunity in Three New England States and New Jersey: Comparative Perspectives on the Occasion of the Thirtieth Anniversary of the Massachusetts Comprehensive Permit Law 3 (Dec. 10, 1999) (transcript available from author); Reed, supra note 113, at 120–23; Stockman, supra note 1, at 577–78; Vaughn, supra note 113, at 50–52; cf. Howard Latin, Ideal Versus Real Regulatory Efficiency: Implementation of Uniform Standards and “Fine–Tuning” Regulatory Reforms, 37 Stan. L. Rev. 1267, 1267–73 (discussing the shift in environmental regulations from command–and–control to economic incentive systems). But see Petyk & Sullivan, supra note 113, at 10, 16; Sullivan & McNeil, supra note 113, at 9–10.
115 Stuborn, Decision on Jurisdiction, No. 98–01, at 6–7; Verrilli, supra note 54, at 13.
116 See Mass. Gen. Laws ch. 40B,  20–23. Chapter 40B has remained essentially unchanged since it was passed in 1969. See id.; Stuborn, Decision on Jurisdiction, No. 98–01, at 6.
117 See 760 CMR  31.01(1)(b).
118 See Stuborn, Decision on Jurisdiction, No. 98–01, at 7; Hastings Village, Inc. v. Wellesley Zoning Bd. of Appeals, Memorandum on Motion to Dismiss, No. 95–05, slip op. at 26 (Mass. Housing Appeals Comm., Mar. 21, 1996).
119 See infra, Part IV. B, C.
120 See infra Part V.
121 760 CMR  31.01(1)(b); see Stuborn, Decision on Jurisdiction, No. 98–01, at 8.
122 760 CMR  30.02; Stuborn, Decision on Jurisdiction, No. 98–01, at 8.
123 See Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 26. For a general history of “Great Society” programs, see generally John A. Andrew III, Lyndon Johnson and the Great Society (1998); The Great Society and its Legacy (Marshall Kaplan & Peggy L. Cuciti eds., 1986). After President Kennedy’s assassination in 1963, President Johnson began to implement his vision of the Great Society. See Andrew, supra, at 12–14, 18. Great Society programs sought to provide opportunities “for full participation in American political and economic life so that all might have a share of its abundance.” Kaplan & Cuciti, supra, at 2. President Johnson and his administration implemented these programs to fight poverty and secure civil rights by appointing task forces of experts to solve problems. See Andrew, supra, at 16. Government would then merely fund the programs. See id. The task forces’ solutions, however, did not meet with much grass roots support at first. See id. at 16–17. This top–down approach made the Great Society difficult to implement because it seemed alien and elitist. See id. at 17. “[L]ocal communities did not wish to be homogenized in some great national blender whose switch was controlled from the White House.” Id. Great Society programs became so unpopular that the Democratic Clinton administration was complicit in Republican Newt Gingrich’s dismantling of welfare, while the Supreme Court has been equally effective in repealing affirmative action programs. See id. at 3–4. See generally Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (finding strict scrutiny must be applied to race–based affirmative action programs imposed by Congress); Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (finding state and local minority “set–asides” for construction contracts violate Equal Protection Clause); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (finding reservation of college admission slots for minorities violates Equal Protection Clause).
124 See Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 26; see also Stuborn, Decision on Jurisdiction, No. 98–01, at 6–7; Lohe, supra note 113, at 3; Reed, supra note 113, at 120–23; Vaughn, supra note 113, at 50–52; cf. Latin, supra note 114, at 1267–73. But see Petyk & Sullivan, supra note 114, at 10, 16; Sullivan & McNeil, supra note 113, at 9–10.
125 See Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 26; see also Stuborn, Decision on Jurisdiction, No. 98–01, at 6–7; Lohe, supra note 113, at 3; Reed, supra note 113, at 120–23; Stockman, supra note 1, at 577–78; Vaughn, supra note 113, at 50–52; cf. Latin, supra note 114, at 1267–73.
126 See Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 26; Lohe, supra note 113, at 2–3.
127 See Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 26; Lohe, supra note 113, at 2–3.
128 See Lohe, supra note 113, at 3.
129 See id. (citing the importance of Harbor Glen Assocs. v. Hingham, No. 80–06 (Mass. Housing Appeals Comm., Aug 20, 1982)). In Harbor Glen, the Town of Hingham carefully planned the use of a 750–acre former Naval ammunitions depot. See id. The town included significant parcels for multi–family and affordable housing. See id. When a developer submitted a comprehensive permit to build housing in an office park district, the HAC upheld the town’s denial of the permit because the town had carefully planned for affordable housing. See id.
130 See Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 4.
131 See id. at 21.
132 See id. at 22.
133 See id. at 6–7.
134 See id. at 22–27.
135 See id. at 22–23.
136 See Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 23.
137 See id. at 22.
138 See id. at 25. Furthermore, towns prefer site letters because, unlike regulatory agreements between developers and lenders, site letters are filed with a comprehensive permit application and are open for public scrutiny. See id.
139 See id. at 4–5.
140 See 760 CMR  45.00; NEF Eligibility Guidelines (last revised 4/27/98) <http://www.fhlbboston.com/products/nef.html> [hereinafter NEF Eligibility Guidelines].
141 See 760 CMR  45.00; NEF Eligibility Guidelines, supra note 140.
142 See 760 CMR  45.00; NEF Eligibility Guidelines, supra note 140; see also Stuborn, Decision on Jurisdiction, No. 98–01, at 25–28 (arguing that the NEF sufficiently protects local interests).
143 See 760 CMR  45.00; Special Commission Relative to the Implementation of Low and Moderate Housing Provisions, Report of the Special Commission Relative to the Implementation of Low and Moderate Housing Provisions passim (1989) (unpublished report, on file at the State Library of Massachusetts) [hereinafter Special Comm’n Report]; Stockman, supra note 1, at 556.
144 760 CMR  45.01.
145 See id.; Special Comm’n Report, supra note 143, at 21.
146 See 760 CMR  45.00 passim; Special Comm’n Report, supra note 143, at 21; Verrilli, supra note 54, at 12.
147 See Verrilli, supra note 54, at 12.
148 See 760 CMR  45.03–.04.
149 A “Use Restriction” is “a contract, mortgage agreement, deed restriction, condition of zoning approval, or other legal instrument . . . which restricts occupancy of Low and Moderate Income Units to persons with qualified incomes.” Id.  45.02.
150 A “Regulatory Agreement” is
an agreement . . . in which a developer agrees to develop Low and Moderate Income Units in accordance with Use restrictions and agrees (a) for rental housing, to limit distribution of return to all partners or legal or beneficial owners to no more than ten percent of equity per year during the term of such agreement or (b) for ownership of housing, to limit profit to all such partners or owners to no more than 20% of total development costs.
Id.  45.02.
151 Id.
152 See id. A “limited dividend organization . . . agrees to limit the dividend on the invested equity to no more than that allowed by the applicable statute or regulations governing the pertinent housing program.” Id.  30.02.
153 Id.  45.07. It was necessary to limit elderly housing under the LIP. See id.  45.07(2). In the early years of 40B’s implementation, towns would allow construction of relatively uncontroversial elder housing, while still fully combating family housing, because, as noted earlier, towns did not want to bear the costs of educating more children. See id.; Reed, supra note 113, at 121. To give families their fair share of affordable housing, therefore, the Department of Housing and Community Development will not approve a project under the LIP if the proposal includes elderly housing which would account for more than five percent of the municipality’s current year–round housing stock. See 760 CMR  45.07(2).
154 See 760 CMR  45.03–.04.
155 See id.  45.03.
156 See id.
157 See id.  45.03(1).
158 See id.  45.03(2).
159 See id.  45.03(2).
160 See 760 CMR  45.03(3).
161 See id.  45.03(4).
162 See id.  45.03(5).
163 See id.  45.04; see also  45.02, 45.09.
164 Id.  45.09; see id.  45.04(1).
165 See 760 CMR  45.02, 45.04(2).
166 Id.  45.09; see id.  45.02, 45.04(3).
167 See id.  45.04(4).
168 See id.  45.02, 45.04(5).
169 See Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 22–27; see generally 760 CMR  45.00.
170 “Subsidized housing inventory” includes: (1) Local Initiative Units so long as Use Restrictions are in effect; and (2) Comprehensive Permit Projects so long as a Regulatory Agreement remains in effect, but only insofar as the units are low and moderate income units. See 760 CMR  45.06. However, all units of a Comprehensive Permit Project are counted if the Department of Housing and Community Affairs finds that the percentage of low or moderate income units and the population and incomes served by the project are comparable to projects developed through another federal or state subsidy program in which all of the units are counted. See id.
171 See Mass. Gen. Laws ch. 40B,  20; 760 CMR  45.03–.04, 45.06–.07, 45.09.
172 See Mass. Gen. Laws ch. 40B,  20; 760 CMR  45.03–.04, 45.–45.07, 45.09.
173 See Stuborn, Decision on Jurisdiction, No. 98–01, at 5, 7; NEF Eligibility Guidelines, supra note 140, at 2.
174 See Stuborn, Decision on Jurisdiction, No. 98–01, at 25–28.
175 See id. at 3; NEF Eligibility Guidelines, supra note 140.
176 See Stuborn, Decision on Jurisdiction, No. 98–01, at 3.
177 See id. at 3. In Stuborn, the HAC held that three criteria must be met for housing to be eligible for a comprehensive permit. See id. at 8. First, income of the occupants may not exceed 80% of the area median income as established by the U.S. Department of Housing and Urban Development for the relevant Metropolitan Statistical Area. See id. at 8; Chapter 40B Subsidized Housing Inventory Through July 1, 1997 with adjustments through September 25, 1997 (last modified Sept. 25, 1997) <http://www.state.ma.us/dhcd/components/ hac/subhous.htm>, at n.5(A)(1) [hereinafter Subsidized Housing Inventory]. Second, a minimum of 25% of the units must be for families at 80% or less of regional median household income. See Stuborn, Decision on Jurisdiction, No. 98–01, at 8–9; Subsidized Housing Inventory, supra, at n.5(A)(2). Third, the housing must remain affordable for a “lock–in period” of at least fifteen years. See Stuborn, Decision on Jurisdiction, No. 98–01, at 9; Subsidized Housing Inventory, supra, at n.5(A)(2). In Stuborn, the developer met the first two eligibility criteria because the NEF eligibility guidelines specifically require the project to have at least 25% of the units affordable to persons with incomes at less than 80% of regional median household income. See Stuborn, Decision on Jurisdiction, No. 98–01, at 11. Though the NEF does not require long–term affordability, the developer met the third criterion by agreeing to a deed rider locking in affordability in perpetuity. See id.
178 See Stuborn, Decision on Jurisdiction, No. 98–01, at 3; NEF Eligibility Guidelines, supra note 140.
179 See Decision on Jurisdiction, No. 98–01, passim. The HAC first faced this question in Hastings Village Inc. v. Wellesley Zoning Bd. of Appeals, where it found that under the circumstances, the NEF did not qualify as a low or moderate income housing subsidy program. See Memorandum on Motion to Dismiss, No. 95–05, at 6.
180 See Stuborn, Decision on Jurisdiction, No. 98–01, at 8–12.
181 See id. In making its decision, the HAC also concluded that the NEF is a program of the federal government “[b]ecause the provision of affordable housing financing is an essentially governmental function, and also because of the NEF’s legislative underpinnings, the public nature of the funds, and the supervision provided by the Federal Housing Finance Board . . . .” Id. at 16; see also 760 CMR  30.02 (requiring that the subsidy come from a federal or state body).
182 See Stuborn, Decision on Jurisdiction, No. 98–01, at 12.
183 See id. at 11.
184 See id. at 1, 11.
185 See id. at 1.
186 See id. Jurisdictional regulations of 40B provide that the applicant must be a public agency, a non–profit organization, or a limited dividend organization. See 760 CMR  31.01(1)(a).
187 See Stuborn, Decision on Jurisdiction, No. 98–01, at 2. The Board also argued that Stuborn was not a limited dividend organization, as required by 40B. See Mass. Gen. Laws ch. 40B,  20, 21; Stuborn, Decision on Jurisdiction, No. 98–01, at 2; 760 CMR  30.02. The HAC, however, found that Stuborn was a limited dividend corporation. See Stuborn, Decision on Jurisdiction, No. 98–01, at 17. Chapter 40B does not define the extent to which a developer must limit its profitability in order to be considered a limited dividend organization. See generally Mass. Gen. Laws ch. 40B,  20–23. Rather, any applicant who “agrees to limit the dividend on the invested equity to no more than that allowed by the applicable statute or regulations governing the pertinent housing program” is considered a limited dividend corporation. See Stuborn, Decision on Jurisdiction, No. 98–01, at 17; 760 CMR  30.02. In Stuborn, the developer agreed to execute a regulatory agreement limiting its profits to 20% of total development costs. See Stuborn, Decision on Jurisdiction, No. 98–01, at 17. The HAC found this acceptable because it was consistent with other affordable housing programs that meet the requirements of 40B and because it would be enforceable by means of the regulatory agreement. See id.
188 Stuborn, Decision on Jurisdiction, No. 98–01, at 12 (quoting Wellesley v. Housing Appeals Comm., 433 N.E.2d 873, 876 (Mass. 1982)); cf. Charlesbank Apartments, Inc. v. Boston Rent Control Admin., 399 N.E.2d 1078, 1079, 1079 n.4, 1081 (Mass. 1980) (holding federal program that provided mortgage insurance was a subsidy program under Boston rent control ordinance).
189 See Stuborn, Decision on Jurisdiction, No. 98–01, at 12.
190 See id.
191 See id.
192 See id.
193 See id. at 11.
194 See id. at 8.
195 See Stuborn, Decision on Jurisdiction, No. 98–01, at 8; Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 8.
196 See Stuborn, Decision on Jurisdiction, No. 98–01, at 9; Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 9. If the income limitation for occupants is less than 80% under the NEF, then 40B may allow a lower proportion of affordable to market rate units. See Stuborn, Decision on Jurisdiction, No. 98–01, at 9 n.7. For example, TELLER and the Low Income Housing Tax Credit programs qualify. See id. Those programs require that 20% of the units be affordable to persons with incomes not exceeding 50% of median income. See id.
197 See id. at 9; Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 9.
198 See Stuborn, Decision on Jurisdiction, No. 98–01, at 11.
199 See id.; NEF Eligibility Guidelines, supra note 140.
200 See Stuborn, Decision on Jurisdiction, No. 98–01, at 11.
201 See id. at 25–26.
202 See id.
203 See id. at 19.
204 See id. at 25.
205 See Id. at 26.
206 See Stuborn, Decision on Jurisdiction, No. 98–01.
207 See id. at 26–27.
208 See id. at 27–28.
209 See id. at 26.
210 See id.
211 See id.
212 See Subsidized Housing Inventory, supra note 177, at 1–7. As of 1997, only 23 Massachusetts communities have more than 10% subsidized housing. See id.
213 See Hastings Village, Inc. v. Wellesley Zoning Bd. of Appeals, Memorandum on Motion to Dismiss, No. 95–05, slip op. at 4 (Mass. Housing Appeals Comm., Mar. 21, 1996).
214 See Stuborn, Decision on Jurisdiction, No. 98–01, at 6–7; Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 4.
215 See Stuborn, Decision on Jurisdiction, No. 98–01, at 6–7; Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 4.
216 See Stuborn, Decision on Jurisdiction, No. 98–01, at 6–7; Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 4.
217 See id. at 7; Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 26.
218 See Stuborn, Decision on Jurisdiction, No. 98–01, at 6–7; see also Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 26.
219 See Stuborn, Decision on Jurisdiction, No. 98–01, at 7.
220 See 760 CMR  45.00; Stuborn, Decision on Jurisdiction, No. 98–01, at 7.
221 See 760 CMR  45.03–.04.
222 See id.
223 See id.
224 See id.
225 See supra notes 130–142 and accompanying text.
226 See Stuborn, Decision on Jurisdiction, No. 98–01, at 8.
227 See id. at 7.
228 See Hastings Village, Inc. v. Wellesley Zoning Bd. of Appeals, Memorandum on Motion to Dismiss, No. 95–05, slip op. at 26 (Mass. Housing Appeals Comm., Mar. 21, 1996).
229 See Mass. Gen. Laws ch. 40B,  21; 760 CMR  30.02.
230 See Stuborn, Decision on Jurisdiction, No. 98–01, at 8.
231 See id.
232 See 760 CMR  45.03–.04.
233 See Mass. Gen. Laws ch. 40B,  21; 760 CMR  30.02; Petyk & Sullivan, supra note 114, at 16.
234 See Petyk & Sullivan, supra note 114, at 16.
235 See id. at 10, 16.
236 See Stuborn, Decision on Jurisdiction, No. 98–01, at 6.
237 See id. at 6–7.
238 See Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 28.
239 See id.; Petyk & Sullivan, supra note 114, at 16.
240 See Stuborn, Decision on Jurisdiction, No. 98–01, at 9; Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 9; Subsidized Housing Inventory, supra note 177, at n.5(A)(1).
241 See Petyk & Sullivan, supra note 114, at 16.
242 See id.
243 See id.
244 See Mass. Gen. Laws ch. 40B,  20–23; 760 CMR  30.00, 31.00.
245 See Stuborn, Decision on Jurisdiction, No. 98–01, at 18; Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 28.
246 See Stuborn, Decision on Jurisdiction, No. 98–01, at 18; Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 28.
247 See Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 27.
248 See id. at 25.
249 See Stuborn, Decision on Jurisdiction, No. 98–01, at 28.
250 See id. at 26.
251 See id.; Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 25.
252 See Stuborn, Decision on Jurisdiction, No. 98–01, at 26.
253 See id. at 6.
254 See id. at 26–27; Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 28–29.
255 See Hastings Village, Memorandum on Motion to Dismiss, No. 95–05, at 22, 28–29.
256 See id.
257 See Stuborn, Decision on Jurisdiction, No. 98–01, at 28.
258 See id. at 18, 27–28.
259 See id. at 26.
260 See id.
261 Stuborn, Decision on Jurisdiction, No. 98–01, at 28.