Not while the building still breaks local zoning, unless the town expressly agreed to an end date. The Appeals Court held that a Westborough apartment complex built under the state’s comprehensive permit law must keep its affordable units affordable, even though the owner’s financing agreement said the restrictions had expired. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The property is a 120-unit apartment complex in a single-family zoning district in Westborough. Twenty percent of the units, twenty-four in all, are deed-restricted as affordable to low- or moderate-income households. The complex was built under G.L. c. 40B after the state Housing Appeals Committee overruled the town’s zoning board in 1992 and approved changes and a transfer of the permit in 1994. Those two decisions serve as the project’s comprehensive permit. A later owner signed amendments with the state housing finance agency setting the affordability restrictions to expire in 2022. The town was not a party to those amendments. In 2021 the owner told the tenants of the affordable units that it would convert them to market rate, and in 2022 the town sued in Land Court.
What the court decided
The Appeals Court affirmed the Land Court’s judgment that the affordability restrictions stay in effect for as long as the property does not conform to the town’s zoning bylaw, along with an order requiring the owner to keep them in place. See Select Board of Westborough v. Northland TPLP LLC, No. 25-P-698 (Mass. App. Ct. July 30, 2026) (Rule 23.0 decision).
Under G.L. c. 40B, § 21, a public agency, nonprofit or limited dividend organization proposing subsidized low- or moderate-income housing can apply for one comprehensive permit instead of separate approvals from every local board. Section 20 defines that housing as housing subsidized by a state or federal program. The key case is Zoning Bd. of Appeals of Wellesley v. Ardemore Apartments Ltd. Partnership, 436 Mass. 811 (2002). There, the Supreme Judicial Court held that if a comprehensive permit does not say how long the units must stay below market, the owner must keep them affordable as long as the housing does not comply with local zoning. The terms of any separate subsidy agreement do not change that, unless the town expressly agreed to a limit.
The owner argued that the two Housing Appeals Committee decisions set a finite term. They referred to the finance agency’s role in setting the length of the use restrictions, and a footnote said the agency would ensure long-term affordability. The court disagreed. Those passages explained why the project met the legal requirements for a comprehensive permit. They were the committee’s reasoning, not conditions of the permit. Had the committee meant to impose an end date, it could have done so in its order, where it listed the permit’s actual conditions. The court also noted that Ardemore rejected a similar argument tying a permit to a finance agency’s expiration date. Because the town never expressly agreed to an end date, the restrictions continue.
What this means for you
If you rent an affordable unit in a building approved under Chapter 40B, a notice that your unit is converting to market rate is not the last word. The question is what the comprehensive permit itself says, and whether the building still depends on that permit because it does not meet ordinary zoning.
A financing agreement between the owner and a state agency, signed without the town, generally cannot end restrictions that come from the comprehensive permit. Here, that rule protected twenty-four affordable units.
This was the town’s lawsuit, not the tenants’. But it shows that towns have tools to keep affordable housing affordable, and tenants can bring these notices to town officials quickly. Every permit is different. If a permit does set an end date, or the town expressly agreed to one, the result can change.
What to do now
- Keep any notice your landlord sends about ending affordability or raising your rent to market rate.
- Ask the town clerk or zoning board for a copy of the building’s comprehensive permit and any Housing Appeals Committee decisions.
- Contact your town’s affordable housing trust, select board or housing office and tell them about the notice.
- Do not move out or sign a new lease at a higher rent until you understand your rights.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
