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Chapter 40B of the Massachusetts
General Laws is a law passed by the state legislature in 1969 as a means to
promote affordable housing. While it has been used steadily since it was
enacted, its usage has increased in recent years as new housing has become scarce
and all housing so expensive. Also, while demand for diverse housing types such
as town houses and apartments has increased, many suburbs do not provide zoning
for these housing types so 40B is the only way for developers to build them.
However, while related to the housing types, the key advantage for developers
under Chapter 40B is increased density.
Chapter 40B sets as a goal that
every city and Town in Massachusetts have 10% of its housing stock as “affordable.”
So what is affordable? Affordable housing is defined as housing that requires
30% or less of income for a household whose total income is 80% of the median for
the metropolitan area it is part of. For the Boston region (of which Sherborn
is a part), that works out to about $90,000 for a family of four. It is
adjusted upward or downward for larger and smaller households. To be eligible
for 40B, development projects must guarantee that at least 25% of its units are
affordable (or 20% if the affordable threshold is lowered to households with
just 50% of median income). There are also limits on how much profit can be
made on the projects and there are auditing requirements.
Okay, so how does 40B development
work? While there is no specific penalty for towns that fail to meet the 10%
threshold, towns with less than 10% have very limited ability to deny a housing
development that is proposed under 40B. People sometimes say that 40B
developments can be built while ignoring local laws. That is almost, but not
quite accurate. Development projects must provide a specific list of waivers
from local laws and regulations it is seeking. If a waiver is denied, the
developer can appeal that decision to a state body called the Housing Appeals
Committee (HAC). The HAC can then overrule the Town if it finds that the denial
makes the project “uneconomic.” Since its mission is to promote affordable
housing, the HAC usually (but not always) finds in favor of the developer. Similarly, if a condition is imposed that the developer objects to, he can appeal to the HAC.
To initiate a 40B development, the
developer submits a project to the state (usually either MassHousing or MassHousing
Partnership) for an initial determination called a Project Eligibility Letter
(PEL). With a PEL, the developer then applies to the Zoning Board of Appeals
for a “comprehensive permit.” The ZBA then acts as the permit granting
authority for the Town rather than the normal entities of Planning Board, Conservation
Commission (ConCom) and Board of Health (BOH). The Planning Board can comment
on the proposal and the ConCom and BOH can apply state rules and regulations rather
than stricter local rules in its evaluation of the project. A public hearing is
required and it usually takes several nights of hearings to resolve the
issues raised. The final decision is in the hands of the ZBA, and the ZBA is
limited to 180 days from the date of application to make a final decision.
As stated above, if a Town’s housing
includes 10% or more of affordable housing, it gains the authority to deny a
40B development. There are a few other provisions that give Towns some control.
First, there is a “large project” limit. If a project will increase the base
number of housing units in the Town by 6% or more, then the project can be denied. If the number
of affordable units has increased by 2% of the total housing stock within the previous
year, the Towns enter “safe harbor” for 1 year and can deny applications during
that time period. If a Town has an approved Housing Production Plan and the affordable
housing percentage increases by 1%, it gets “safe harbor" status for two years, or if it increases by .5% it gets one year of safe harbor.
Finally, it should be noted that affordable
units are listed by the state in its Subsidized Housing Inventory (SHI). Only units listed in the SHI count toward the 10%. While the
25% minimum applies to both ownership and rental projects, for ownership
projects, just the 25% of units that are affordable are listed on the SHI. For rental
projects, 100% of units are listed. Thus, rental projects represent a faster
way to reach 10% than ownership projects. Also, there is a provision for a
Local Initiative Project (LIP). Under LIP, a developer can obtain consent from the
Select Board to support the project when the Select Board believes it is in the
best interests of the Town. In addition to facilitating the approval process,
the Town gets some advantages such as a local preference for 70% of the affordable
units.
Much more detailed information is available on the State web page: https://www.mass.gov/chapter-40-b-planning-and-information
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