The Carlisle Mosquito Online

Friday, April 18, 2008


New state 40B regulations will impact Carlisle

On February 22, the Department of Housing and Community Development (DHCD) issued new regulations updating Chapter 40B. There are now many more constraints on the town’s application review process and control of a project. However, the regulations also ease the requirements for certification of progress toward the goal that 10% of the town’s housing qualify as affordable for low- and moderate-income households. Such certification allows a community to achieve a temporary moratorium from 40B.

The new 40B regulations limit the time the Zoning Board of Appeals (ZBA) has to review an application. From the time an application is filed, the board will now have 180 days to either award or deny a comprehensive permit to begin development, unless the applicant agrees to a delay. As a point of comparison, the hearings preceding the Coventry Woods permit covered over 500 days. Up to three reviews for separate projects can occur at once before the ZBA’s 180-day requirement is waived. The regulations also make it harder to shift costs to developers, add special requirements or request extra documentation.

But the new regulations may make it easier for Carlisle to control its affordable housing destiny. Previously, a community had to add affordable units at a rate of 0.75% of total existing units per year (12 units in Carlisle) in order to gain a temporary moratorium from 40B under the Planned Production Program. That has been changed to 0.50 (eight units in Carlisle). The regulations also set out guidelines for counting accessory apartments as affordable. Previously, it was not clear whether the state would include these units as part of a town’s Subsidized Housing Inventory. Carlisle has set aside funding to encourage homeowners to certify their apartments as affordable.

Chapter 40B allows developers of affordable housing to bypass local zoning laws in municipalities with insufficient housing for low-income residents. It has been called upon three times in Carlisle, most recently for the now-cancelled Coventry Woods project (see “Developer drops Coventry Woods appeal,” Mosquito, March 28). Currently Carlisle has a housing production plan but has not added sufficient affordable units to become certified and earn veto power over another 40B.

180-day limit difficult

Zoning Board of Appeals Chair Ed Rolfe notes the 180-day limit for action on an application “will make it very difficult for the ZBA to conduct a thorough review.” He adds, “What was a difficult job has been made more impossible.” Since water testing can take months, Carlisle, with its dependence on wells, is particularly affected. It may be difficult to assess health and environmental impacts if varying water levels at different times of year must be examined.

On the other hand, developers have objected to long review processes, which increase their costs and risks, and the DHCD has responded to their complaints. Assistant Coordinator Elizabeth Barnett notes the department is taking other measures to speed project development, including a one-year limit on concluding an appeal, as well as the right for a comprehensive permit holder to proceed with development while the permit is under appeal.

Rolfe also notes the definition of a 40B has changed to include office and retail as well as housing. “That’s a little bit concerning,” he adds. This advances the governor’s Smart Growth Initiative to reduce dependence on automobiles. But Rolfe says, “The DHCD has taken a one size fits all” approach, and “not all towns have the infrastructure for large 40B projects.”

Moratorium may be easier

A press release issued by the state notes the lower certification bar for achieving a temporary moratorium from 40B will “allow communities a more realistic chance to become certified and further encourage use of Planned Production.” (“Patrick Administration to Make Changes to Affordable Housing Law,” Executive Office of Housing and Economic Development (EOHED) November 6, 2007). One objective of the new regulations may be to encourage towns to work with developers of affordable housing as a way of reducing the incidence of “unfriendly” 40Bs.

According to a chart supplied on the DHCD web site, Carlisle, with 1647 units of housing must now add eight units per year, where the previous plan specified 12. The Benfield RFP about to be issued will include 26 units of affordable housing for seniors. If this project finds a builder and proceeds through the ZBA hearings quickly, the town can soon hope for two years relief from 40B. The current maximum exemption from a single project is two years, and although Benfield will have more than the minimum number of units needed to achieve certification, the project size cannot be reduced because it would become uneconomic.

Housing Authority Chair Alan Lehotsky says that the permitting for Benfield should be completed this year, but adds, “My track record on predicting how long things will take in the housing world is spectacularly bad,” noting it has already been four years since the purchase of Benfield. However, “The town is very supportive of this project at this point.” As for the possibility of another Coventry Woods-type 40B, “Based on the current economy we may not see any this year,” he says, but “it would be good to get Benfield underway” before a recovery next year.

One change to the regulations rescinds a community’s ability to refuse a 40B if its certification occurs after an application has been accepted and hearings commenced. This means that if a 40B application comes forward later this year, it would not be stopped by the issuance of a permit for Benfield.

Limitations on review

There are limits on the types of fees the ZBA can assess, and the scope of financial review. Assessments for “legal fees for general representation of the ZBA or other local boards” are banned, and limitations set on the situations in which pro forma statements can affect decisions.

Other regulations incorporate “past Court and Housing Appeals Committee (HAC) decisions . . . to more clearly establish standard practices and reduce the potential for litigation,” according to the EOHED release. There are bans on requirements that projects add affordable units above DHCD guidelines or that developers be forced to contribute to town infrastructure outside of the project impacts. The regulations also state that units cannot be reduced except on the basis of local concerns such as health, safety and environmental protection. Included are stricter rules for Productivity Plans, including municipal and regional planning, as well as a new requirement that the Planning Board and Selectmen vote on the plan. There are also tougher guidelines for evaluating profitability, as under the statute a developer is limited to a 20% net profit on a 40B project.

Developer gains rights

A comprehensive permit holder now has the right to proceed with development at his own risk while the permit is under appeal, and also has the right to transfer a permit to another developer meeting the eligibility requirements of the subsidizing agency without the approval of the ZBA. A recent report by the Citizens Housing and Planning Association (CHAPA), a non-profit advocacy group, notes that of 50 abutter appeals involving 40B Comprehensive Permits that have been decided or dropped over the past eight years, only one was ruled in favor of the plaintiffs (Zoning Litigation and Affordable Housing Production in Massachusetts). Now a developer can avoid the cost of delay where he judges an appeal has a low chance of success.

The (EOHED) press release points to other areas of regulatory improvement, including common income eligibility standards among state agencies, and standards for including housing in the Subsidized Housing Inventory. It notes that one intent of the regulation is “to spur an increase in affordable housing production in Massachusetts” by bringing “increased clarity, coherence, consistency and oversight to the rules and administration of the 38-year-old affordable housing statute.”

40B is not going away

For those who had hoped the Patrick administration was backing away from 40B, the issuance of these new regulations may be a disappointment. A recent attempt to put a repeal of 40B on the 2007 November ballot failed because the backers were unable to gather enough signatures.

ZBA chair Ed Rolfe notes that two organizations representing the views of municipal leaders are opposing the regulations. The Massachusetts Municipal Association (MMA) and the Massachusetts Coalition for Affordable Housing (MCAH) have issued a joint statement that says, in part, “The new regulations significantly limit the participation of communities and consolidate all of the decision-making in DHCD and other state agencies. . . .we are convinced that the widening disconnect between state mandates and the needs of municipalities will adversely affect the development of affordable housing for communities that really need it.”

Atkins praises new regs

But some are cautiously optimistic that the new regulations will make needed improvements. Senator Cory Atkins, a past critic, says the regulations “have the mission to provide the clarity, confidence, and predictability missing” from the previous statutes. She says Governor Patrick avoided a battle in the legislature by taking the regulatory route rather than try to change the laws. “The governor was wise to do it this way. If something doesn’t work, they can change them” much more easily than if encased in statutes. She adds, “On paper it looks pretty good. The proof will be in the pudding.”

Administrative Coordinator Elizabeth Barnett attended a CHAPA conference on the new regulations last week, and notes that of the 300 attendees, “There were different perspectives. Some are encouraged about the reduced housing productivity levels, but some question the 180 days (to review an application).”

Those wishing to review the new regulations can visit the following web site which has links to the relevant documents: ∆

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