Statement by the Town of Concord regarding the recent decision on 1440 Main Street:
Symes Development filed an application with the Planning Board in March, 2020 for an 18 lot subdivision to be located at 1440 Main Street. The Planning Board reviewed the application in accordance with the Massachusetts Subdivision Control Law and the Town’s subdivision rules and regulations. After numerous public hearings, the Planning Board issued a decision approving the subdivision subject to a number of conditions. These conditions included the reservation of three lots for three years by the Town allow the Town to purchase the lots at fair market value for affordable housing as required by the Board’s subdivision rules and the Town’s Inclusionary Housing Bylaw. The Inclusionary Housing Bylaw was enacted by Town Meeting in 1992 and approved by the Attorney General at the time, but had never been reviewed by a Court. Symes appealed certain of the conditions in the Planning Board’s decision to the Land Court and also brought suit in the US District Court seeking compensation for the time that these lots and other lots reserved for the purpose of creating public park space would be unavailable for development by Symes.
On June 23, 2021, the Land Court issued its decision affirming portions of the Planning Board’s decision reserving land for park purposes, but striking down the condition requiring the reservation of the affordable housing lots, finding that the Town’s Inclusionary Housing Bylaw exceeded the Town’s home rule powers under the Massachusetts Constitution and the Town’s authority under the Subdivision Control Law. Accordingly, the Land Court declared the Town’s Inclusionary Housing Bylaw to be void and of no effect.
At a joint meeting with the Planning Board and Town Counsel, the Select Board decided not to appeal the decision of the Land Court to the Appeals Court. Although the Select Board, Planning Board and Town Counsel disagree with portions of the Land Court’s decision, the Boards and Town Counsel recognize that given the significant limitations the Subdivision Control Law places on the Town, the lack of precedents regarding similar reservations of land for affordable housing under the Subdivision of Control Law (the appeal would be an issue of “first impression” for the Appeals Court), and the potential costs of appeal, it would be preferable to direct the Town’s resources towards alternative methods of fostering affordable housing rather than further litigation of the Land Court’s decision. In particular, the Board felt that given the steep increase in land values since the Inclusionary Housing Bylaw’s enactment in 1992, the Town would be better served by focusing on affordable housing mechanisms that do not require acquisition and development of raw land at fair market value.
As a result, the Town will not take an appeal, the Land Court Decision will stand, and the Planning Board will be required to revise its original decision to comply with the Court’s decision. Before it can proceed with construction, Symes must obtain an Earth Removal Permit due to the large amount of earth proposed to be removed from the site as part of the project. The Zoning Board of Appeals will review the Earth Removal Permit application in accordance with the Town’s Zoning Bylaw, not the Subdivision Control Law.