The Carlisle Mosquito Online

Friday, March 30, 2001


Chapter 40B and the Massachusetts Comprehensive Permit Law

Affordable housing legislation

With affordable housing a hot topic, the Mosquito will periodically publish background articles relating to this.

In 1969 the Massachusetts legislature enacted a law intended to address the shortage of low and moderate income housing in the state by reducing barriers created by local approval processes and zoning restrictions. This was to be the first such law in the nation, and other states have subsequently passed similar legislation. The law, known officially as The Massachusetts Comprehensive Permit Law, has been termed the anti-snob zoning law. It piggybacks on state and federal subsidized housing laws that apply to towns where subsidized housing comprises less than 10% of the year-round housing stock.

Chapter 40B gives developers two powerful arms. The first is the comprehensive permit (CP), intended to streamline the review of a project by local regulatory boards by allowing developers of subsidized housing in any community to file a single application to build such housing, rather than filing separate applications with all applicable local boards, such as the board of health, planning board and conservation commission. The CP application goes before the local zoning board of appeals, the ZBA. The ZBA can accept, reject, or accept with conditions; the comprehensive permit bypasses local zoning regulations, such as the two-acre requirement in Carlisle. Further, it stipulates that 25 percent of a development under a comprehensive permit must meet affordability guidelines; the other 75 percent of the housing will be at market value.

The second powerful arm is the creation of an appointed five-member autonomous State Housing Appeals Committee (HAC) within the Department of Housing and Community Development. HAC holds that a community can only reject a proposal if it can demonstrate that the proposal creates "a threat to public health, safety and planning that cannot be mitigated with specific conditions."

Comprehensive permit applicants denied by the local zoning board may appeal to the HAC and the track record is substantially in favor of the developer, since the threats mentioned cannot usually be sustained on appeal and the HAC has routinely overturned local denials. Impacts on municipal services overall or the local tax base do not qualify.

It will be seen that the trigger for a CP application is a community's failure to have ten percent of its housing stock meet affordability guidelines. Over the years there have been various refinements to the CP process, chiefly that the consistency of HAC denial has led most towns to negotiate with the developer and set conditions, rather than outwardly deny an application. The level of state and federal subsidies has changed, and another trend has been to shift subsidy and regulation to the local community. Currently there are many amendments before the legislature seeking to modify 40B with the lines generally being drawn between urban and suburban concerns and between those who are pro-development and those who are pro-conservation and open space.

2001 The Carlisle Mosquito