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Paul D. Wilson

The next chapter of Chapter 40B

Email|Print|Single Page| Text size + By Paul D. Wilson
February 15, 2008

TODAY'S HOUSING headlines generally focus on homes that already exist: their volatile prices or the struggle of subprime borrowers to stay in their homes when interest rates rise. But an important story about how we create new housing in Massachusetts is developing under the radar, as the Patrick administration and the state's highest court consider Chapter 40B, the state's affordable housing law.

The housing created today under Chapter 40B bears little resemblance to the large low-income projects built by government agencies in the 1960s, when the law was conceived. Nonprofits and private developers now use Chapter 40B to build townhouse condominium communities, single-family home subdivisions, apartment buildings, and senior housing. In many of these developments, people with "moderate incomes" pay much less than their "market rate" neighbors for essentially identical housing. Developers are willing to rent or sell some units to people of moderate income, often at a loss, because that allows them to invoke Chapter 40B, and the law often provides the only realistic mechanism to create apartments or condominium complexes.

Zoning laws in Massachusetts are notoriously unwelcoming to new housing, and often grant much discretion to town officials to deny landowners the right to build anything. In exercising that discretion, municipal boards too often give in to the "not in my backyard" attitude of the neighbors of construction projects.

In towns where affordable housing is less than 10 percent of the housing stock, Chapter 40B takes away some of the discretion of town officials to say no to housing that is well-planned and will contain a substantial percentage of moderate-income units, by allowing the builder to bypass restrictive zoning rules and, if the town denies the permit application, to have that decision reviewed by a state agency.

Chapter 40B has worked well for Massachusetts, creating nearly 50,000 homes. Among them are about one-third of the new homes - and nearly 80 percent of the apartments - built in suburban Boston between 2002 and 2006.

Because of its success in producing housing over the objections of towns and neighbors, the law has become a lightning rod. Recently, a loose alliance of municipal officials and disappointed neighbors of housing developments mounted a campaign to return Massachusetts to the days when towns had an absolute right to say no to any sizable housing development. Asserting that the statute is broken, the alliance tried to gather enough signatures to put the repeal of Chapter 40B on the November ballot. Their effort failed, gathering less than half of the necessary signatures.

While Chapter 40B is not broken, it is certainly bearing weight it was not designed for, given how housing created under the law has evolved. Governor Deval Patrick's reaction to the repeal effort was to suggest that the law be updated, not repealed.

Indeed, the governor's new appointees at the Department of Housing and Community Development are rewriting the state's Chapter 40B housing regulations to replace the often-confusing rules issued piecemeal over the decades, and to adapt them to the realities of modern housing. Those regulations, scheduled to be issued Feb. 22, will give clear guidance to towns, developers, neighbors, and other agencies.

Too many Chapter 40B applications end up in court, and this month's session of the Supreme Judicial Court presents an opportunity for judicial fine-tuning of the law. The SJC heard arguments this month in seven Chapter 40B cases - approximately the number of cases that have reached the high court over the past decade.

The seven cases present a variety of issues. Can Woburn cut a proposed Chapter 40B development in half without pointing to any safety or environmental justification? Can Wrentham count the beds in a Department of Mental Retardation facility as "subsidized housing"? When a Lexington developer appeals a town board's decision to a state agency and the neighbors appeal the same decision to the courts, how should these dueling appeals be reconciled?

Like the forthcoming regulations from the Department of Housing and Community Development, the SJC's decisions in these cases, expected this summer, could greatly affect how much new housing gets built in Massachusetts.

Paul D. Wilson is a lawyer at Mintz Levin Cohn Ferris Glovsky and Popeo, P.C.. He argued the Woburn case before the SJC.

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