Chapter 40B - To Repeal or Not To Repeal

I want to start out simply stating I am a big supporter of affordable housing. I believe that the need for truly affordable housing far exceeds the goals established in Massachusetts Chapter 40B. That being said, I think the affordable housing production process needs a massive overhaul.

The problems with Chapter 40B are many. For starters, the one size fits all approach to affordable housing, 10% everywhere, hardly reflects any attempt to measure actual need. Think about it, the Town of Alford, with 173 housing units having to meet the same production goals as the City of Worcester, 70,408 housing units. Sure producing 17 housing units would seem to be far easier than producing 7,041. However, a town like Alford lacks jobs, public transportation, or any potential for compact mixed use development. However, if a developer came along seeking to overrule the town's zoning to provide housing at a denser level than is currently allowed (2 acres per residential unit) the town would be left totally defenseless. In fact, at the 25% affordability requirement for a for sale Chapter 40B project, Alford would have to construct 116 housing units to meet the Chapter 40B target. The result would be a town that is 67% larger than today - looking at it by the average number of people, the town would increase by 267 people. It is easy for people to say "Ten percent is a small amount of overall housing..." but the impacts can actually be quite dramatic.

Another issue I have with Chapter 40B involves the implementation of the process through a process that is a moving target. Recently the City of Woburn won a significant court case on relative to placing conditions on an affordable housing project it approves under Chapter 40B. In the case, Board of Appeals of Woburn v. Housing Appeals Committee, 451 Mass. 581 (2008) the court ruled that the developer had failed to prove the conditions placed on the project by the city was uneconomic. Unfortunately, shortly after this ruling the Housing Appeals Committee essentially provided an end run to this court decision by establishing that a community essentially needs to prove that a change in a project size does not render a project uneconomic, thereby shifting the burden of proof from the applicant to the town.

Also, if Chapter 40B is intended to provide affordable housing, why are towns precluded from requiring higher levels of affordability than the state minimums? This type of restriction increases the total build-out required for a town to achieve the mandate. The net result is large increases in market rate housing for little gain in affordability.

So, forty years ago the state felt that a stick was the appropriate method of promoting affordable housing. The stick they chose was one that was different than any of our neighboring states, or, for that matter it would appear, nationally. New Jersey and New Hampshire chose "builder's remedies." In New Hampshire the courts ruled first that local zoning needed to implement the Local Plan, and that the Local Plan needed to address regional housing needs. If it was impossible to build affordable housing, then the town's zoning was at risk of being negated - at least for the property in question. See: Lewis Builders v Atkinson (1984 and 1987) and Britton v. Chester. New Jersey, in the famous Mount Laurel decisions took the same approach. The difference between these two states and Massachusetts is that New Hampshire and New Jersey start from the point of view that, if properly directed, communities will provide zoning to ensure that affordable housing can be built.

In Massachusetts, the purpose of Chapter 40B is to "overcome exclusionary practices." In reality, the statute and implementation procedures provide no recognition for communities with local affordable housing by-laws. The mere presence of such a by-law should lead to a presumption that there are no local exclusionary practices to be overcome. The additional approval of projects under such by-laws should clearly exempt communities from any Chapter 40B proposals - regardless of whether the projects get onto the State Housing Inventory which has become more and more complicated with its own set of moving targets (especially for communities which had adopted local procedures before the state adopted its own procedures).

So, at the end of the day, I do not believe that isolated communities such as Alford or Florida should have stringent 40B mandates. I believe that communities who have affordable housing by-laws on the books should have 40B mandates. I believe that poor communities with naturally depressed housing values should be exempt from 40B mandates. I am clearly on the side of those who feel Chapter 40B needs to be reformed, and I am slowly converting over to the side of those who feel that Chapter 40B should be repealed.

For more information, check out the following websites:

Repeal 40B
Citizens' Housing and Planning
The Facts About 40B
Affordable Housing Now - Helping Massachusetts Recover From Chapter 40B
Municipal Coalition for Affordable Housing
National Low Income Housing Coalition
The Reform 40B Coalition