SJC shuts the door on Newton housing complex

A six-story, 334-unit apartment complex was proposed on Wells Avenue under Chapter 40B.

The state Supreme Judicial Court has ruled against a developer’s years-long effort to build a 334-unit housing development on Wells Avenue in Newton, deciding that the state’s affordable housing law does not trump a deed restriction on the property.

Developer 135 Wells Avenue LLC proposed the development in 2014 under Chapter 40B, a state law intended to make it easier for builders to erect more affordable housing by waiving some local zoning.

The Wells Avenue proposal would have included 84 affordable units and would have been built on about six acres of land that abut roughly 30 acres of city-owned property.


In its ruling Monday, the state’s top court found that proposing the Newton development under Chapter 40B does not override an existing deed restriction on the Wells Avenue property that limits it to manufacturing use.

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The SJC distinguished a zoning board’s Chapter 40B authority to grant “permits or approvals” from making changes to a property’s deed restriction.

“Despite their similarity to zoning provisions, the deed restrictions are a property interest, a restrictive covenant on land, that cannot be abrogated by any act by a zoning board,” the state’s SJC wrote.

The city’s then-aldermen previously declined the developer’s petition to lift the deed restriction in 2014, and in the following year, both the Newton Zoning Board of Appeals and the state Housing Appeals Committee argued they lacked the power to modify the restriction.

A later state Land Court ruling supported the Newton zoning board and state appeals committee.


The deed restriction dated back to 1960, when the city’s Board of Aldermen placed a deed restriction on about 180 acres on Wells Avenue that limited it to manufacturing after Sylvania Electric Products sought to build a plant there.

In exchange, the city had an option to buy about 30 acres of that property, which it did a few years later.

The Sylvania plant was never built, and from 1971 to 2014, separate owners purchased parts of the remaining 150 acres.

Those buyers received zoning amendments from aldermen allowing nonmanufacturing uses, including for retail and food service, schools, offices, and a “bouncy house,” according to the court’s decision.

The SJC ruled that the Board of Aldermen’s decisions over the years “were not the functional equivalent of permits or approvals.”


The developer also argued that the property restriction served no purpose. The SJC found the property restriction still provides “valuable benefits to the city,” including maintaining economic activity on Wells Avenue, plus protecting open space and buffer zones of the Charles River from encroaching development.

John Hilliard can be reached at john.hilliard@globe.com.