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leGal Continued from Page 40 with long-term affordability ensured by a deed restriction. Thus, low-cost market-rate housing does not qualify as ���affordable housing��� under Chapter 40b. town of sunderland On January 14, 2013, the SJC held that the town of Sunderland had improperly denied a 150-unit rental project. It was wrong for the town to deny the project on the basis that the fire chief had alleged fire safety concerns (i.e., the town did not have a ladder truck or a garage to store it in). The SJC determined that those concerns were not valid where the threestory buildings would have an extensive, state-of-the-art sprinkler system, the town had mutual aid from a neighboring town that owned a ladder truck, and the town���s zoning bylaw allowed taller buildings than those proposed by the applicant. Importantly, the SJC also ruled that the alleged ���fiscal impact��� of the project was not a lawful basis for denial. The town had argued that the project would increase the school-age population and necessitate an increase in the school budget; require hiring additional police officers and firefighters; and, create additional maintenance expenses for roads, sidewalks and drainage, all in excess of the tax revenue generated by the project. The SJC rejected the town���s argument, holding that a fiscal impact analysis is not permitted under Chapter 40b. The one limited exception is if alleged inadequate municipal services were due solely to unusual topographical, environmental or other physical circumstances of the project, which did not exist in this case. As a final exclamation point, the SJC r u led t hat t he tow n had improperly charged the applicant a $10,000 ���filing fee,��� ostensibly to pay for the town���s attorney for general legal representation. Such burdensome ���application fees��� were prohibited under the affordable housing regulations. Affordable housing Regulations The affordable housing regulations of the Department of Housing and Community Development (DHCD) and the Housing Appeals Committee (HAC) support proactive municipal efforts to create housing (e.g., adoption of smart growth zoning overlay districts to create new housing ���by right��� under Chapter 40R, commitment of Community Preservation Act funds to construct affordable housing, etc.) However, as the SJC recently indicated, the local efforts and plans will not be credited if they do not result in actual construction of affordable units. In December 2012, I circulated a memo on the governor���s housing plan and ���5 Tips for Real estate Development.��� Please contact me if you would like a copy. Sales and Design Service of Natural Stone ��� Ceramic Tile ��� Glass Tile ��� Carpets ��� No Wax Vinyl���s ��� Laminate Floors 508.775.6100 445 West Main Street Hyannis, MA 02601 508.398.2136 10 Deerfield Road Harwich, MA 02645 Builder: McPhee Associates of Cape Cod Congratulations on being chosen ���Builder of the Month��� 42 | Greater boston Builder+architect Boston.BuiLDerarChiteCt.Com Photography: Roe Osborn Please contact me if you or a colleague has any questions regarding comprehensive permits, Chapter 40b, real estate development or construction issues. At tor ney Peter Feuerbach���s pract ice concentrates in real estate, business, construction and environmental law. He is a partner at Rubin and Rudman LLP, which is a f ull-ser vice law f ir m located in Boston, MA. Feuerbach may be reached at (617) 330-7136, or via email at pfeuerbach@rubinrudman .com . To comment about this or other subjects on which he has written , please visit www.masslegalalerts.blogspot.com. n This ar ticle is intended to provide general information about an area of law. It is not legal advice. You should consult with legal counsel for advice specific to your circumstances. This memorandum is not an invitation to enter into and does not create an attorney-client relationship. Please do not send confidential information without first receiving permission to do so from feuerbach or one of his attorneys. advertisers��� index a-1-a steel & supply ..................................... 36 abbey plumbing & heating ........................... 31 Benger Construction ..................................... 26 Best tile ..................................inside Back Cover Black magic Chimney & Fireplace .................. 45 Cape Cod Brass ............................................. 25 Cape Cod Cupola Co., inc............................... 7 Cape Cod ready mix..................................... 33 Central Cape Glass ........................................ 22 Closet Factory................................................ 20 Cloutier supply Company.............................. 42 Dan Cutrona photography ............................ 46 Dave Duchesney painting Contractor, inc. ........................... 19 JJ hardwood Floors, inc. ........ inside Front Cover Kam appliances.............................................. 3 LeClerc & son hardwood Floors .................... 30 Lower Cape irrigation ...................................... 7 mac electric Cape Cod .................................. 35 main street at Botellos .................................... 4 mid-Cape Garage Door inc. .......................... 43 mid-Cape home Centers............................... 44 myette masonry ............................................ 37 northeast tool supply.................................... 25 pella..................................................Back Cover robert B. our Co., inc. .................................. 34 ryder & Wilcox .............................................. 32 s&J exco ........................................................ 23 shepley.......................................................... 29 snow and Jones, inc. ..................................... 44 south shore heating & Cooling inc ............... 41 specialty Builders ........................................... 39 stove place .................................................... 38 trimBoard ...................................................... 21 ultimate trim & stair Creations...................... 27

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