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A primer on affordable housing statute aka Chapter 40B

by Karina Coombs

What is Chapter 40B?

The Comprehensive Permit Law or as it is more commonly known, Chapter 40B, is a statute that was created in 1969 to address the lack of affordable housing within Massachusetts, where land and building costs have remained some of the highest in the nation. 

Each town is required to have 10% of its housing stock classified as affordable. Known as the Subsidized Housing Index (SHI), the figure is tracked by the Department of Housing and Community Development (DHCD). According to the 2013 Massachusetts Subsidized Housing Inventory report, Carlisle is currently at 2.6% with 46 units of the town’s 1,740 homes qualifying as affordable housing. 

It is worth noting for every unit of housing added to a town, whether it is subsidized or not, the 10% figure that must be matched will also increase. Carlisle’s 10% target will change with the 2020 US Census.

What is a comprehensive permit?

A comprehensive permit allows a developer to bypass local zoning restrictions provided a quarter of all units have a long term restriction for low or moderate income residents. 

Who issues the permit?

The Zoning Board of Appeals (ZBA) issues the permit if approved. In addition to submitting the permit application to the ZBA, a developer must also submit applications to the Board of Health (BOH) and, if applicable, the Conservation Commission (ConsCom) because of its role in enforcing state regulations such as Title V or the Wetlands Protection Act. If requested by the applicant, local bylaws and regulations that may be more stringent than those of the state can be waived by the ZBA.

What is the permit process?

Once the ZBA receives a site eligibility letter from the state and a comprehensive permit application, it has 30 days to schedule a public hearing. The ZBA, with input from other town boards, is responsible for reviewing engineering plans, evaluating overall design, looking at traffic and other safety concerns and any impact on local water.

During the review process a Town Hall Advisory Group (THAG) may also be formed that would include representatives from each of the boards and allow project details to be discussed and various interests represented. A THAG was formed during the Benfield Farms 40B application process.

Outside consultants or specialists may also be brought in as advisors or to conduct various tests. Consultants are paid out of a review fee provided by the developer and held by the town. The state restricts the amount of testing that can be conducted if it is considered to be beyond the scope of the immediate project.

Unless both parties agree, the hearing must end in 180 days. The board then has 40 days to render a decision. Unless both parties agree to an extension, a permit is considered approved if the board goes beyond 40 days. 

The board has the ability to award or deny a permit. It can also award a permit, but with conditions, such as decreasing the number of units proposed. The developer can appeal the decision to the state if the town’s affordable housing inventory is less than the required 10%.

On what grounds can the board deny a project?

The ZBA can deny the project outright if the town has already met its 10% obligation, or has achieved a temporary moratorium. Otherwise, the board is greatly limited in rejecting a permit unless it has shown the harm of the project outweighs the need for affordable housing. The board can also approve the project, but with conditions which can change the size or some other characteristics of the proposal. For the full text of comprehensive permit statute see 760 CMR 56 at: www.mass.gov/hed/economic/eohed/dhcd/legal/regs/760-cmr-56.html.

How can the town achieve a 40B moratorium?

A one-year moratorium, or “safe harbor” will be granted if the town adds a minimum of nine affordable units in a given year. Adding 18 units within a given year will grant the town safe harbor status for two years, the longest moratorium possible. The number of units needed for a moratorium is based on 0.5% of the total number of affordable units needed to reach 10% of the housing stock. 

As the total number of housing units grows, the 10% figure will grow. Both the 10% target and the number of units needed to earn a 40B moratorium are scheduled to be updated in 2020.

Who can appeal a decision?

Anyone can appeal a ZBA comprehensive permit within 20 days of the decision.

A developer can appeal a permit rejection to the Housing Appeals Committee (HAC), but only if the town has not reached its 10% level. During the appeal process, the burden of proof is in the local board to demonstrate a valid reason why the project should not be permitted. 

A developer can also appeal a permit approval that came with conditions. In this case, the burden of proof is then on the developer to show why the changes made make the project not economically feasible to continue.

What does affordable mean?

Affordable is defined as households that made less than 80% of an area’s median income (AMI). The AMI is calculated by the U.S. Department of Housing and Urban Development for specific geographic locations. To qualify for federal or state funded programs using this income restriction in Carlisle, an individual cannot earn more than $47,450 and a family of four cannot earn more than $67,750.  

The AMI for the area of which Carlisle is a part is $94,100 while the median income for only Carlisle is $160,000.

What kinds of property can be considered as affordable?

Affordable housing inventory can be comprised of either ownership or rental properties and range from single-family homes to accessory apartments. Developments that are 100% rental are particularly advantageous to communities because if a quarter of the units are income restricted, all the units in the development add to the town’s affordable inventory. 

Housing sponsored by the state Department of Developmental Services (DDS) also qualifies as affordable housing. In the case of DDS group housing, each bedroom counts as one affordable housing unit.

Going forward the state is encouraging towns to build more affordable housing for families and looking less favorably on age-restricted properties. Reflecting this shift, new developments will need to have 65% of its units with two or more bedrooms and 10% with three or more bedrooms.

What are the affordable properties in Carlisle?

Since Carlisle has about 1,740 housing units, the 10% affordable target set by the state is 174 units. Carlisle currently has three properties that are classified as affordable. Village Court, the first 40B project in Carlisle built in the early 1980s, has 18 units. Two of the units at Rocky Point are also income restricted. Benfield Farms has the most units at 26. To reach its 10%, Carlisle must add at least another 128 units. 

There is a proposal to develop ten bedrooms of DDS housing on the Goff property with all units counting toward the SHI. Any development of affordable housing on Banta-Davis would also count toward the town’s figure.