Tom Keane

40B in voters’ backyard

Keeping zoning power at the state level encourages needed growth

By Tom Keane
September 27, 2010

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I WRITE this while in Dubai, a city perched on the edge of the Persian Gulf, one filled with spectacular buildings thrusting like glass-and-steel stalagmites from the desert sand, including the gorgeous Burj Khalifa, the world’s tallest. A generation ago none of this existed; now one wanders an urban landscape of dazzling fountains, man-made islands, and wild and breathtaking structures, any one of which would make Don Chiofaro’s oh-so-scary plans for the Boston waterfront look timid by comparison.

Dubai represents an extreme, a city-state created from the vision of one family — in this case, the Al Maktoums. Autocracies are like that. Their rulers can pretty much do whatever they want.

Massachusetts sometimes seems to represent the opposite extreme. If Dubai is progress unimpeded by dissent, the Bay State is dissent run amok. Be it a skyscraper downtown, transit-oriented developments in suburbia or windmills in Nantucket Sound, there are always voices raised in opposition. Sometimes they come in the clothes of environmentalism, preservation, or tradition. Other times, more nakedly, they are simply opposition to any change whatsoever.

Of course, anyone can complain. But here in the Bay State, our long tradition of local control over almost any physical development gives those complaints unique force. Objectors are accorded such deference that projects are readily delayed, watered down, or, most frequently, simply killed. Unlike many other states — or certainly Dubai — we have few genuinely effective regional or state-wide authorities that can act as a counterweight.

Which brings us to Chapter 40B, the 41-year-old state law that now faces a judgment day of sorts this November. Question 2 on the ballot would wipe it off the books, ceding back to towns and cities the near-absolute right to decide what will be built — or more accurately, what won’t be built — in their communities.

More properly known as the “comprehensive permit law,’’ 40B was first sold as anti-snob zoning, which sounded fine to folks back then because, of course, who among us is a snob? The law overrides local controls when it comes to building affordable housing, and when it started affecting towns like Arlington, Sharon and Weymouth, it suddenly occurred to a lot of folks that, Pogo-like, we had met the snobs and they is us. Opposition began to build, helped along by the fact that 40B itself had flaws. (The most important of those was that clever developers had figured out how to use the rules to extort: agree to let me build my project or else I’ll use 40B to build something even worse.)

In truth, 40B is pretty small potatoes. It only applies to communities where less than 10 percent of the housing stock is “affordable.’’ In other words, if 90 percent of the housing in your town is not affordable, that’s fine. It would seem an easy hurdle except that Massachusetts remains a state remarkably segregated by wealth. Amazingly, 300 of our 351 cities and towns don’t hit the 10 percent mark (and of those that do, most are cities).

On the merits, supporting 40B — and voting against Question 2 — is an easy call. Many of the most egregious abuses of the law (such as developer extortion) have been fixed over the last decade. The law itself has accomplished much, creating 21,861 units of housing this decade alone (with another 21,000 in planning), according to a UMass Donahue Institute study issued earlier this month. And to be frank, many of those in the anti-40B camp spout a creepy anti-family agenda: what they really seem to want is to avoid having to pay for the education of kids. If you are to be known by the friends you keep, I’d rather stick with the pro-40B’ers.

But this debate is about more than housing. Chapter 40B’s real affront is that it challenges both communities’ power and the pervasive not-in-my-backyard mentality that stymies growth and drags the entire state down. These are challenges we should encourage, not discourage. No town is an island but many act as if they are, which accounts for our crazy-quilt patterns of development, transportation, and infrastructure. So too, we need mechanisms that allow broader goals to trump narrow self-interest. Get rid of 40B? No way. Indeed, we need more laws like it.

Tom Keane, a Boston-based freelance writer and former city councilor, is a guest columnist. He can be reached at

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