Friday, October 1, 2004
Making 40B work in Massachusetts
A group of about twenty citizens gathered last Thursday evening in the Clark Room at Town Hall, hoping to make sense out of the confusing Comprehensive Permit Law, or so-called "Chapter 40B" legislation that has created so much controversy in Massachusetts cities and towns. Representative Cory Atkins hosted the forum. To present and explain the current and proposed 40B legislation, Atkins introduced Anne Marie Belrose of the Department of Housing and Community Development (DHCD), a cabinet-level department responsible directly to Governor Mitt Romney. Atkins and Belrose both noted that the "spirit" of the law seeks to prevent a state brain-drain of young or first-time buyers who might otherwise be forced to take jobs elsewhere so as to afford housing, as well as of older buyers or renters seeking to retire here. In short, it attempts to get more people into more good homes so that they can afford to live and work in Massachusetts.
Belrose said that, "the pressures are great, particularly in eastern Massachusetts. Zoning Boards of Appeal (ZBAs) are overburdened with applications to build affordable housing, and the character of the towns is threatened Still," she said, "over 30,000 units have been built [since the law's inception in 1969]. The law "enables ZBAs to approve affordable housing developments under flexible rules if at least 25% of units have long-term affordability restrictions."
The "flexible rules" allow ZBAs some control over what the developments will look like, how they are accessed by roads, water and gas lines, and their acreage and situations, However, other local zoning bylaws, such as those limiting housing density, may be overridden. Each municipality must build its share of affordable housing; it's a case of figuring out how to do it and retain the character of the town.
What are the figures and what do they mean?
The magic figure is 10%. The law states that each town must designate 10% of its total housing units in the community as affordable. A town may also meet its 40B minimum by designating a percentage of its town-owned developable land to affordable housing. If a town falls below this target, the state may give a comprehensive permit to a 40B developer.
Questions frequently arise as to the definition of affordable housing, who qualifies to own or rent, what sorts of units qualify as affordable, and more. Belrose outlined some general figures: "households earning up to 80% of median income qualify to rent or to buy affordable housing. In the metro-west area, median income is about $68,000 and change." Affordable housing prices in this area, she said, are somewhere between $100,000 and $180,000. These figures outline what the law means to Carlisle, but they don't complete the picture, because in the last three years, the legislation has undergone three rounds of regulation changes.
What is happening to the law?
In 2002, the legislature approved 15 regulation changes, many recommended by the DHCD, designed to "increase local control over development," and Governor Jane Swift vetoed them all. The law didn't change, despite widespread dissatisfaction with it. In 2003, Governor Mitt Romney convened a task force of 24 "legislators, state housing officials, municipal and regional officials, and stakeholders representing development, community, and environmental interests" and charged them with coming up with a law that could be applied fairly to Massachusetts communities while resting as much control as possible within the municipalities themselves. This group "endorsed regulation changes promulgated by the DHCD and recommended 17 additional changes to improve the Chapter 40B process and increase planning and local control over development." In May 2003, the Joint Committee of Housing and Urban Development took these results, drafted a bill, and submitted it to the legislature. The House of Representatives has passed the new legislation with amendments, but it still lies in the Senate's "to do" pile.
New provisions proposed
The new law adds to the existing regulations, eliminates the general land area minimum, and calls for a mix of housing types: rental and owned for older people, individuals, families, and people with special needs. There is still controversy, however, over what type of housing units qualify as affordable, and the most recent round of proposed regulation changes even includes confusing language about retirement and assisted living communities, which often have a very expensive buy-in and can rent for upwards of $3,000 a month. However, in the proposed planning regulations, towns must develop a housing strategy and building time frame and outline all the necessary restrictions and characteristics of the planned housing. If communities produce a comprehensive plan for completing their 10% affordable housing according to the new regulations, they would have a defense against the comprehensive permit applications now plaguing community ZBAs. The new proposals, for example, would allow communities who create 0.5% affordable units in a calendar year to deny comprehensive permits for a year; those who create 1% could deny the permits for two years, and those who create 1.5% could deny permits for three years. On a schedule like that, communities could reach 10% over a period of time with immunity to comprehensive permits.
Making it easier to get to 10%
The proposals would also help cities and towns with their planning and provide more flexibility in execution. The DHCD, on their web site www.mass.gov/dhcd, already provides some information under the "Housing Development Toolkit" link, and the state would be required to "make planning and development resources available to assist communities" in their efforts. Belrose advised, "Use planned production to your advantage by working with developers to produce what you want and need. Approved plans are available on our web sites under Executive Order 418: Community Development Plans. We also have a priority development fund to assist communities in planning and site development."
A new proposal provides that "contiguous communities could agree to share credit for housing developments where infrastructure and other costs are shared." This proposal is theoretically flexible, but practically difficult because, as Atkins said, "All the towns and cities in Massachusetts like to retain their sovereignty."
Other changes to the law would expand the number of units that would count toward the 10% goal, and would simplify and categorize the types of units that would count. However, this is unlikely to help Carlisle, which has so few eligible units.
Will it pass?
All of the new proposals and amendments passed by the House of Representatives appear to improve and streamline this complicated legislation, but will it pass the Senate? Belrose smiled when asked this question and said, "40B-related issues are always full of surprisesthere are so many competing interests and so many reasons to do or not to do things." Atkins agreed and noted, "only one objection could kill it." She added, "I think you can get a sense tonight of why this is under constant negotiationMy political instincts tell me that if it has sat in the Senate this long, it probably isn't going to passunless the Senate president has some sort of game plan not clear to us. He might be waiting until it's clear that some of the people with strong objections won't be returning to the Senate after the November elections. Who knows?"
"It's still true — we have to do it."
Until the Senate considers and acts on amendments and new proposals to the law, Carlisle will be dealing with the basics of the existing (1969) legislation. Those working on the Benfield property Task Force are already becoming familiar with the labyrinthine specifics of 40B, are pursuing a grant for planning and site development from the state, and have been looking recently at some creative and attractive housing options for the portion of the land designated for affordable housing. Anne Marie Belrose advised that the best way to deal with 40B now and later is to "plan, plan, plan." As Carlisle ZBA chair Cindy Nock declared, "It's still true — we have to do it."
© 2004 The