November 2004

Planning

Copyright by American Planning Association

Massachusetts Law Still Evolving

By Anthony Flint

Passed in 1969 — and one of the first such laws in the nation — Chapter 40B of the Massachusetts General Laws, known as the "anti-snob zoning" statute, has been viewed as both a blessing and a curse.

The law is straightforward. In any community where less than 10 percent of the housing is affordable — defined as what a family making 80 percent of the local median income can pay — developers can override local zoning rules and get on a fast track to build residential projects that include low- and moderate-income units. The measure was designed to harness the power of the market to provide housing, with government opening doors rather than supplying the housing directly. More than 25,000 units have been built since 1970.

Housing advocates say the law is an absolute necessity in Massachusetts, where both home buyers and renters have seen prices soar over the last two decades at a similar pace to that of New York and San Francisco. The suburbs have built mostly expensive, large-lot, single-family houses — some would say quite deliberately; hence the "anti-snob zoning" moniker. Those homes are out of reach for both low-income families and teachers and firefighters who can't afford to live in the towns where they work. Several communities, far from having 10 percent affordable housing, have barely one percent.

Local government leaders, however, regard Chapter 40B as a blunt instrument, leaving them with no control over where development goes and putting a big strain on schools and municipal services. Towns make ample use of an appeals clause in the law, and projects get tied up in court for years. Suburban lawmakers tried unsuccessfully over the past year to weaken the law by allowing mobile homes to count towards the 10 percent affordability goal.

"Chelmsford has been hit hard in the past three years," says Andrew Sheehan, community development coordinator for this town of 33,500 located north of Boston. More than 300 units have been approved, and another 213 are in the pipeline. "These projects are eating up sewer capacity, which is limited by our contract with the city of Lowell, where wastewater is sent for treatment."

In February 2003, Gov. Mitt Romney convened a task force on Chapter 40B that recommended keeping the law but giving towns a breather from multiple project proposals if they show progress toward increasing affordability within a year. Towns also get credit if they produce a plan showing how they will meet affordable housing goals over several years. Most of the recommendations are now in the state regulations, but a permanent, statutory change failed to pass the legislature.

"The bottom line is that after four years of debate — 35 years, for that matter — there has not been a single change to the 40B statute," says Aaron Gornstein, executive director of the Citizens Housing and Planning Association, a group that represents housing interests statewide. He has been fighting what he views as an assault on the law.

Some believe the solution is not to tinker with Chapter 40B but to make it easier for towns to put multifamily housing — historically more affordable — where they want it. A big complaint about Chapter 40B projects is that many are big and boxy, with extensive parking lots and little regard for environmental or traffic impacts. To steer density to town centers, the legislature this year passed Chapter 40R, which offers financial incentives to towns that change their zoning to create "smart growth" districts in those locations. Once residential complexes are built — an apartment complex with a density of 20 units per acre, for example — the towns get $3,000 per unit from the state.

The program is entirely voluntary, and "many think that very few towns will actually adopt these districts," says Gornstein.

If recent history is any measure, resistance to housing growth, affordable or otherwise, will continue. In the town of Kingston, south of Boston, residents rejected a proposal for dense, mixed-use development next to the commuter rail station, a site currently occupied by a sand and gravel pit.

"We thought we had an ideal spot," says town planner Thomas Bott. "The basic concept of creating affordability is through greater density, but in Kingston it didn't play too well."

Town planners throughout Massachusetts are eager to see how many of the state's 351 cities and towns sign up for the Chapter 40R program. Only a few dozen have approved another voluntary program to increase property taxes to bolster affordable housing, known as the Community Preservation Act. Bott believes the "density districts" will probably be embraced by urban communities that have buildable land in downtown areas. That would leave most suburbs right back where they started — with precious little affordable housing, and perpetual battles over Chapter 40B.

Anthony Flint covers transportation and growth for the Boston Globe.