What is 40b housing?
Chapter 40B Planning. Chapter 40B is a state statute, which enables local Zoning Boards of Appeals to approve affordable housing developments under flexible rules if at least 20-25% of the units have long-term affordability restrictions.
The Case Against Chapter 40B
As the legislative goal of facilitating the creation of affordable housing was realized, the number of comprehensive permit applications began to increase.23
A number of factors, including escalating land costs, more restrictive zoning throughout the state and a new source of funding led to a substantial increase in comprehensive permit applications over the past five years.24
The increased Chapter 40B activity has resulted in numerous complaints from municipalities and residents groups.25
The primary objection of these groups is that developers are taking advantage of the statute to seek projects that are too dense compared to what they would be permitted to do under the applicable zoning bylaws.
Another frequent complaint is that the number and size of the projects being filed are overwhelming municipalities’ ability to provide services for the increased population.26 These groups argue the manner in which the subsidized housing inventory is counted is unfair and inaccurate, as it does not count trailer parks, Section 8 housing or other inclusive housing measures.
The communities also argue that the policy of counting all of the apartment units in a Chapter 40B development toward the subsidized housing inventory, while only counting the affordable units of a homeownership project, is unfair because the municipality has little say in the type of housing developers propose.27
Many of these complaints from the opponents of Chapter 40B have been addressed by either recent case law or by regulatory changes promulgated by the Department of Housing and Community Development. Most of the remaining issues are addressed by the recommendations of the Chapter 40B Task Force.
Although some groups opposed to Chapter 40B would likely prefer to see the task force recommendations address all of their suggestions, the recommendations of the Chapter 40B Task Force effectively address most of the perceived flaws remaining in the system.
Affordable Housing Law Called a Big Boon
The law allows builders to bypass certain zoning restrictions in municipalities where less than 10 percent of the housing stock is classified as affordable. To win the waivers, they must set aside 20 to 25 percent of the units in a development for residents who make less than the community’s median income and offer those homes at below-market rates.
Opponents say the law allows developers to bully local officials into approving housing that violates building codes and inflates housing costs, because market-rate units are priced higher to subsidize so-called affordable homes.
Jon Witten, a Duxbury lawyer and law professor, said the UMass study points out the obvious: that Chapter 40B is an economic engine that creates housing.
But he added that many critics of the law are not opposed to development; they want an affordable-housing program that does not circumvent the best interests of communities.
“When you erase all rules and regulations at the local level, the result will be housing’’ — but nothing more, said Witten, who teaches law and land-use planning at Boston College and Tufts University. “The majority of other states have found a far more efficient way of building affordable housing that doesn’t benefit only the developer.’’
