The lack of affordable housing has reached crisis levels around the world.1 See generally, Jeanna Smialek, Why Interest Rate Cuts Won’t Fix a Global Housing Affordability Crisis, N.Y. Times (Aug. 30, 2024), https://www.nytimes.com/2024/08/30/business/economy/interest-rate-cuts-housing-affordability-crisis.html. In Massachusetts, housing production has lagged for several decades, driving up housing prices and threatening residents’ ability to pay their rent or mortgage.2 See Massachusetts: A Home for Everyone, Executive Office of Housing and Livable Communities. Accessed Sept. 9, 2024. https://www.mass.gov/info-details/the-affordable-homes-act-smart-housing-livable-communities. Massachusetts law requires municipalities to build affordable housing each year; if they don’t, a statute known as Chapter 40B allows the state to build affordable housing for them and ignore municipal zoning requirements while doing so.3 Chapter 40B Housing Production Plan, Executive Office of Housing and Livable Communities. Accessed Sept. 10, 2024. https://www.mass.gov/info-details/chapter-40b-housing-production-plan. [hereinafter Chapter 40B HPP]; Wildcat and Carleton/Lincoln Street Parcels FAQs, Norwell Community Housing Trust. Accessed Aug. 21, 2024. [hereinafter Wildcat FAQs].
In Massachusetts, a municipality can hold land for specific public uses and keep that land undeveloped until there is a need to develop it for that specific public use.4 M.G.L. c. 40 §3. Under a “totality of the circumstances” test, the Massachusetts Supreme Judicial Court examines both the municipality’s stated intent for the land and how the land is being used to decide whether the land can remain set aside for a specific use.5See Harris v. Wayland, 392 Mass. 237, 242 (Mass. 1984); Bd. of Selectmen v. Lindsay, 444 Mass. 502, 506 (Mass. 2005); Smith v. City of Westfield, 478 Mass. 49, 49 (Mass. 2017).
In Norwell, a wealthy community south of Boston, the local Select Board had set aside two parcels of land (the “Wildcat Land”) for affordable housing development in 2004, but a failure to develop meant that residents whose properties abutted the vacant land were accustomed to using the land for recreation and opposed developing affordable housing on the land.6Wheeler Cowperthwaite, How a Homeowner’s Association Plans to Block Norwell’s Affordable Housing Project, The Patriot Ledger, Apr. 18, 2021, https://www.patriotledger.com/story/news/2021/03/25/norwell-homeowners-association-tries-block-affordable-housing-wildcat-hill-brian-carroll/6958707002/. [hereinafter Cowperthwaite HOA].
In Carroll v. Select Board of Norwell, the Supreme Judicial Court held that the Select Board had taken the necessary steps to indicate their intent to build affordable housing on the Wildcat Land and that it could not become conservation land.7 Carroll v. Select Board of Norwell, 493 Mass. 178, 190 (Mass. 2024). While legally correct, this ruling missed an important opportunity to require towns with land set aside for affordable housing to actually develop affordable housing instead of merely holding onto the land for decades.
The totality of the circumstances test used by the Court allows land to remain undeveloped until there is a need for development.8 Harris , 392 Mass. at 242. The facts of Massachusetts’ affordable housing crisis clearly show that the need has never been greater. If the public interest in affordable housing is ever going to win over the efforts of the Not In My Back Yard (NIMBY) movement, the local judiciary needs to step up.
The totality of the circumstances test balances between two factors: the municipality’s stated intent for the land and the land’s predominant use.9Smith v. City of Westfield, 478 Mass. 49, 58 (Mass. 2017). Since 2004, the Select Board has stated their intent to develop the Wildcat Land for affordable housing. However, the predominant use of the Wildcat Land has been as a place for recreation.10Joint Brief of the Plaintiff-Appellants, Brian Carroll and Tim Wall at 1. Carroll v. Select Board of Norwell, 493 Mass. 178 (Mass. 2024) (SJC 13410), 2023 MA S. CT. BRIEFS LEXIS 145 Fortunately, in looking at the totality of the circumstances, the Court seemed to largely ignore this, focusing instead on the multiple actions the Select Board has taken to indicate its intent to develop affordable housing on the Wildcat Land.11 Carroll, 493 Mass. at 194. By finding the Select Board’s casual efforts indicative of clear and unequivocal intent, the SJC implicitly supported NIMBYism by maintaining the status quo.
Other courts have been more supportive of affordable housing development.12 See generally, Yes In My Back Yard v. City of Culver City, 96 Cal. App. 5th 1103 (2023); In re N.J.A.C. 5:96 & 5:97, 221 N.J. 1 (2015). [hereinafter Mount Laurel IV] The California Appeals Court in 2023 struck down a municipal zoning law that had decreased the size of houses that could be built; agreeing with a Yes In My Back Yard (“YIMBY”) organization that the zoning went against California’s Housing Crisis Act of 2019.13 YIMBY, 96 Cal. App. 5th at 1109. And in New Jersey, the Mount Laurel saga continues, with the New Jersey Supreme Court in 2015 deciding in Mount Laurel IV that the Council on Affordable Housing was no longer capable of supporting affordable housing development as they had failed to adequately update their regulations since they expired in 1999.14 Mount Laurel IV, supra note 102 at 13-14. These state courts have been able to recognize the need for prompt action in response to their affordable housing crises, and there is no reason Massachusetts courts cannot join them.
Massachusetts is not only in a housing crisis, it is in a state of emergency.15 Gabrielle Emanuell, Gov. Healey declares a state of emergency in overwhelmed family shelter system, WBUR, Aug. 8, 2023. https://www.wbur.org/news/2023/08/08/healey-state-of-emergency-families-migrants-shelter. The conflict between NIMBYism and development for the public good has played out in Massachusetts courtrooms over and over (and over) again.16 See e.g., Carroll v. Select Board of Norwell, 493 Mass. 178 (Mass. 2024); Harris v. Wayland, 392 Mass 237, 238-239 (Mass. 1984); Smith v. City of Westfield, 478 Mass. 49, 58 (Mass. 2017). And the NIMBYs seem to be winning—the average cost of a home in Massachusetts rose by 6.6% last year and is now higher than ever.17 Massachusetts Housing Market , Zillow Home Values Index. ZILLOW. Accessed Sept. 29, 2024. https://www.zillow.com/home-values/26/ma/. The need for affordable housing in Massachusetts continues to grow and the municipal affordable housing production requirements have not changed in the sixteen years since they were first implemented in 2008.18 See genernally, 760 Mass. Code Regs. 56.03(4) (2008); Emanuel, supra note 15. Chapter 40B and the HPP requirements work hard to move the needle on affordable housing development.19 See genernally, Mass. Gen. Laws ch. 40, §2 (1969); 760 Mass. Code Regs. 56.03(4) (2008). But when faced with strong NIMBY opposition to development, even the threat of freely zoned state housing is not enough to spur local development.20 See generally, Wildcat FAQs, supra note 3.
As the New Jersey Supreme Court showed the country forty-one years ago, the judicial branch can be a powerful advocate for affordable housing.21 See generally, S. Burlington Cnty. NAACP v. Mount Laurel, 92 N.J. 158 (N.J. 1983). [hereinafter Mount Laurel II]. In looking at Norwell’s current lack of affordable housing and the desperate need for affordable housing in Massachusetts, the SJC should have held, as their New Jersey counterpart did, that access to affordable housing is a general welfare concern.22 Id., at 175.
Addressing this constitutional concern would have opened the door for the SJC to require Norwell and municipalities like it to support the general welfare by actively developing affordable housing.23 Id., at 174 (“It is elementary theory that all police power enactments… must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws.”);Mass. Const. art. I (declaring possession of property to be an unalienable right). By not requiring Norwell to actively develop the Wildcat land, the SJC implicitly endorsed NIMBYism and turned its back on the hundreds of thousands of people desperate for an affordable home in Norwell and around Massachusetts.
