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BOSTON — The Massachusetts Supreme Judicial Court ruled that a local zoning board can override local zoning requirements related to commercial uses when issuing so-called comprehensive or fast-track permits for affordable housing developments. The state’s regional planning law allows zoning boards to issue a comprehensive permit, or a single permit giving approvals normally granted by several town boards, for affordable housing. The November 20 decision said allowing a zoning board such override authority is consistent with the state legislature’s intent to make affordable housing development economically viable. Warren Jepson v. Zoning Board of Appeals of Ipswich, SJC-09914 (Mass.) “Our conclusion represents yet another instance where a yield to the regional need for affordable housing is appropriate,” said the opinion, written by Associate Justice John M. Greaney. Michael A. Tucker, an attorney with Newburyport, Mass.-based Griffin & Tucker who represented the plaintiff Ipswich Housing Authority, said the town’s argument was that the regional planning law couldn’t be used to override variances that would be required for a commercial project. “Our concern was [the law] becomes a trump card that you could put on the table and get whatever you need, a commercial variance or any sort of allowance of your project,” Tucker said. The decision is a win for the affordable housing community because it makes it clear that incidental commercial components like a laundromat or convenience store can be part of an affordable housing development under the comprehensive permit law, said Jeffrey Sacks, a Boston partner in Nixon Peabody’s affordable housing group. Sacks co-authored an amicus brief submitted by the Boston-based Citizens’ Housing & Planning Association to the court. “Affordable housing is very hard to develop if this decision had gone the other way it would have made it more difficult,” Sacks said. “These incidental commercial uses enhance the commercial variability of the projects.”

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