Massachusetts Comprehensive Permit Act: Chapter 40B

The Comprehensive Permit Act^[1] is a Massachusetts law which allows developers of affordable housing to override certain aspects of municipal zoning bylaws and other requirements. Is consists of Massachusetts General Laws (M.G.L.) Chapter 40B, Sections 20 through 23, along with associated regulations issued and administered by the Massachusetts Department of Housing and Community Development.^[2][3] Chapter 40B was enacted in 1969 to address the shortage of affordable housing statewide by reducing barriers created by local municipal building permit approval processes, local zoning, and other restrictions. Its goal is to encourage the production of affordable housing in all communities throughout the Commonwealth.

For the purposes of this statute, affordable housing is defined as a unit which could be purchased or rented by a household making up to 80% of the median income of the area. Such housing must be subject to affordable housing restrictions to preserve affordability in the long term.

Comprehensive permitting process

Under Chapter 40B, in any municipality where less than 10% of its housing qualifies as affordable under the law, a developer can build more densely than the municipal zoning bylaws would permit, allowing more units per acre of land when building a new development, if at least 25% (or 20% for certain rental developments) of the new units have long-term affordability restrictions. As of December 2007, 51 of 351 municipalities in the state have greater than the 10% threshold of affordable housing units, mostly cities.^[4]

Chapter 40B continues to be controversial and it has not overcome the multiple barriers that exist to building affordable housing in the state. A study by the National Low Income Housing Coalition rated Massachusetts as being the least affordable state in which to rent an apartment in 2003.^[5] Despite the law, fewer new affordable housing units are built in Massachusetts compared to the state's needs. The state government as a policy works toward increasing the supply of inexpensive housing. The shortage contributes to sprawl as workers move further away from jobs in order obtain affordably priced houses. The high price of housing is one reason that young adults move away from Massachusetts.^[6] However, some municipalities resist the permitting and building more housing, because the cost of the services demanded by the new occupants with children, largely for education, is greater than the taxes received for the housing unit.^{[citation needed]}

Municipalities have occasionally attempted to gain "affordable" classification for existing inexpensive housing units which are not deed restricted to maintain the long-term future affordable status of the units. Some municipalities have requested that mobile homes be allowed, but this has been denied. Others attempted to include prisons and school dormitories to little avail.^{[citation needed]}

The law permits developers to override local zoning regulations to build apartment developments in areas zoned for single family homes, or area zoned for other purposes. A potential long-term effect is one of increasing housing density in the outer suburban ring of Boston without the infrastructure to make such development sustainable or desirable.^{[citation needed]}

Impact

The goal of the Affordable Housing Law (Chapter 40B) is to make at least 10% of every Massachusetts’s community’s housing stock affordable for moderate income households. To date, 51 communities have met this goal. Forty other communities are at the 8% or 9% threshold. The Affordable Housing Law has prompted nearly 100 communities to develop affordable housing production plans.

Over the last decade, the Affordable Housing Law has been directly responsible for approximately 80% of the affordable housing built in Massachusetts outside the major cities. More than 58,000 homes have been created for working families, seniors, and people with disabilities all across the state because of this law. Nearly half of all of the units were created by non-profits, like Habitat for Humanity^[7].

Enforcement

The Massachusetts Office of the Inspector General, in 2005, 2006 and 2007 issued several reports criticizing lax enforcement of developers and profits surrounding "40B" developments, and has described subterfuges used by developers to earn more profit on affordable housing than the statute and regulation permits, and that the municipalities and the state have inadequate supervision, auditing and enforcement of the municipal agreements with developers and developers' reporting of sales and profits under the agreement and law.^[8][9]

Changes in the law, 2008: SJC decisions and revised regulations

In 2008 the Massachusetts Department of Housing and Community Development issued a comprehensive revision of regulations and guidelines for development under Chapter 40B earlier this year. The Massachusetts Supreme Judicial Court issued seven decisions on substantive and procedural issues in regard to Chapter 40B law, nearly the number of decisions rendered during the previous decade.^[10]

Campaign to Protect the Affordable Housing Law

Question 2 on the Massachusetts statewide ballot on November 2, 2010 concerns whether or not to repeal 40B. The Campaign to Protect the Affordable Housing Law, a state ballot committee, has been formed to oppose the elimination of this critical housing law. The campaign is a grassroots coalition of more than 950 individuals and organizations, representing hundreds of thousands of residents. The coalition includes: civic, business, religious, and academic leaders as well as senior, environmental, housing, and civil rights groups. The campaign is supported by all three gubernatorial candidates, Deval Patrick, Tim Cahill, and Charlie Baker. This group contends that repealing the affordable housing law would immediately halt the creation of housing that is affordable to seniors and working families in many communities across the Commonwealth of Massachusetts^[7].

Opposition

There is some concern and opposition to Chapter 40B with some claiming that it encourages building unaffordable homes in higher densities and with far fewer affordable units, and severely degrades affordability. There is also a claim that the Inspector General of Massachusetts, who is charged with identifying fraud, waste and corruption in Massachusetts government, has criticized Chapter 40B from 2006 to the present.^[11]

Potential lawsuit

According to the co-owner of Freedom Petition Management, Rob Wilkinson, the opposition paid the organization $200,000 for assistance in collecting signatures. According to Wilkinson, the firm collected a good majority of the signatures, obtaining approximately 91,000 signatures. However, Wilkinson has stated that his organization has not been paid in full for their efforts. The ballot initiative claimed that a payment plan was set in place, which Wilkinson denies. The firm is in the process of preparing a lawsuit^[12].

See also

• Inclusionary zoning
• List of towns in Massachusetts
• List of cities in Massachusetts
• Massachusetts government#Local government
• New England town

Notes

1. ^ See Town of Hingham v. Dept. of Housing and Community Development, 451 Mass. 501, 502 (2008).
2. ^ Massachusetts General Laws (M.G.L.) Chapter 40B, §§ 20-23. Originally enacted via the statutes of 1969, chapter 774.
3. ^ Code of Massachusetts Regulations 760 CMR 56
4. ^ Lefferts, Jennifer Fenn (2007-12-09). "Town seeks housing goal in a fell swoop: 350-unit project set for Concord". Boston Globe. http://www.boston.com/news/local/massachusetts/articles/2007/12/09/town_seeks_housing_goal_in_a_fell_swoop/. Retrieved 2007-12-10. 
5. ^ Michael D., Goodman, Ph.D. (January 2004). "Winners and Losers in the Massachusetts Housing Market". Agricultural and Resource Economics. Director of Economic and Public Policy Research, University of Massachusetts Donahue Institute. http://www.chapa.org/pdf/WinnersandLosers.pdf. Retrieved 2007-05-17. 
6. ^ Serghino, Rene (2004-02-15). "Massachusetts residents leaving for new borders". The Boston Bay State Banner. Archived from the original on August 29, 2007. http://web.archive.org/web/20070829224526/http://www.baystatebanner.com/issues/2007/02/15/news/news02150705.htm. Retrieved 2007-05-17. 
7. ^ ^{a b} www.protectaffordablehousing.org
8. ^ See the Publications List of the Massachusetts Office of the Inspector General for a comprehensive listing. Retrieved December 23, 2007.
9. ^ Sullivan, Gregory W. (2007-10-23). "Letter to the Chairs of the Joint Committee on Housing, Massachusetts General Court" (PDF). Office of Inspector General, Massachusetts. http://www.mass.gov/ig/publ/40b_hearing_letter.pdf. Retrieved 2007-12-23. 
10. ^ "A New Look at an Old 40B: New Regulations, New Rulings". Advanced Legal Studies (course listing). Suffolk University Law School. Summer 2008. http://www.law.suffolk.edu/academic/ALS/coursedetail.cfm?cid=612.  See also A New look at an Old 40B (table of SJC 40B decisions in 2008)
11. ^ The Coalition to Repeal 40B (opinionated contra Chapter 40B)
12. ^ http://www.dailynewstribune.com/topstories/x590377879/Ballot-initiative-effort-targets-40B-repeal

References

• Massachusetts Comprehensive Permit Law (Chapter 40B, Sections 20 - 23)
• 760 CMR 56.00 (effective 2/22/08; previous regulations, 760 CMR 30 & 31 repealed)

Further reading

• Baker, Christopher (2004-2005). "Housing in Crisis - A Call to Reform Massachusetts's Affordable Housing Law". Boston College Environmental Affairs Law Review 32 (1): 165–206. http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bcealr/32_1/bcealr_32_1.pdf. ^{[dead link]}
• Chapter 40B Planning Executive Office of Housing and Economic Development (EOHED), Commonwealth of Massachusetts (regulations and guidelines)
• "Fact Sheet on Chapter 40B", prepared by Citizens' Housing and Planning Association (CHAPA), Oct. 2007
• Chapter 40B References compiled by CHAPA (Citizens' Housing and Planning Association)

External links

• Housing Appeals Committee
• "What is 40B?", The Coalition to Repeal 40B (opinionated contra Chapter 40B)