What is Chapter 40B?
Chapter 40B is a state statute, which enables local Zoning Boards of Appeals (ZBA) to approve affordable housing developments under flexible rules if at least 25% of the units have long-term affordability restrictions. Also known as the Comprehensive Permit Law, Chapter 40B was enacted in 1969 to help address the state wide shortage of affordable housing by reducing barriers created by local approval processes, local zoning, and other restrictions. Its goal is to encourage the production of affordable housing in all communities throughout the Commonwealth.
What has been the effect of Chapter 40B?
Many communities have used 40B to successfully negotiate the approval of quality affordable housing developments. However, the law is controversial as it provides a mechanism to override local zoning bylaws. If the project is rejected by the local Zoning Board of Appeals the developer can appeal to the State level Housing Appeals Committee, which has traditionally favored the need of affordable housing over local concerns.
Chapter 40B has been responsible for the production of affordable housing that otherwise could not be approved under local laws. Types of developments include everything from church sponsored housing for the elderly, single-family subdivisions which include affordable units, mixed income condominiums, and multifamily rental projects.
Since 1970, projects have been approved in 170 communities representing approximately 25,000 units of housing.
How does a Development Qualify Under Chapter 40B?
To qualify, a project must first be approved under a state
or federal housing program, such as the Massachusetts Housing Finance Agency,
Housing and Urban Development (HUD), or the Federal Home Loan Bank of
At least 25% of the units must be affordable to lower income households who earn no more than 80% of the area median income. As of this publication, in the Town of Tewksbury, the 80% of the median income for a family of four is $57,500. Towns are allowed to establish some local preference for residents to receive these units. Developers, either profit or non-profit, must agree to restrict their profits on the project.
After a project is determined to be eligible, the developer can submit for a Comprehensive Permit to the local Zoning Board of Appeals (ZBA). The ZBA is empowered to grant all local approvals necessary for the project after consulting with other boards, such as the Tewksbury Board of Selectmen, Local Housing Partnership, Planning Board, Conservation Commission, and the Board of Health. This allows for a streamlined review process at the zoning board, although does not guarantee it. State regulations such as the Wetlands Protection Act, Title 5, and building codes remain fully in effect under the comprehensive permit.
In addition, the ZBA is authorized to apply more flexible standards superceding local zoning by-law standards. For example, a multi-family condominium development could be allowed in a one-acre single family unit residential zone. If the ZBA denies the project, it is subject to appeal by the developer to the state level Housing Appeals Committee (HAC).
Under Chapter 40B, a project with greater density can be approved by the local ZBA or if denied, approved in the appeal process by the HAC.
What is a Local Initiative Program?
A Local Initiative Program (LIP) is an affordable housing development that is endorsed by the local municipality. Typically these are developments where the developer has approached the local municipality in a cooperative manner to gain approval of LIP designation. For the towns it requires a vote of approval and submission of a LIP application by the Board of Selectmen. A LIP can be privately funded and does not need to be capitalized by a subsidy lending agency. In general LIPs are more desirable as the town may have more influence over the development to improve density levels and more appropriate integration with the surrounding neighborhood.
What Control Does the Town Have Over the Development?
The Board of Selectmen, Tewksbury Local Housing Partnership, Zoning Board of Appeals and other local officials often work with the developer to modify the project. The ZBA may place conditions and requirements on any aspect of the project such as height, density, site plan, utility improvements, or long term affordability. This is provided these conditions do not make the development economically unfeasible for the developer.
Many of the 40B proposals are negotiated at the local level and approved by the ZBA. Issues such as density, buffer zones, conservation areas, and infrastructure improvements are typical items of negotiation during the ZBA hearing process
How Does the Local Review Process Work?
A developer acting under Chapter 40B notifies the town that its proposed development qualifies under either a State/Federal Subsidy program or through a partnership with the town in a Local Initiative Program (LIP).
The town will make a preliminary review of the project involving the Local Housing Partnership and various department heads. Comments are then forwarded to the Board of Selectmen.
The Board or Selectmen (BOS) will conduct a Public Workshop where the residents and abutters are encouraged to express their comments or concerns about the proposed development.
The Board of Selectmen will submit comments to the subsidized funding source (Lender) within 30 days of developer’s notification to the town. In the case of a Local Initiative Program, the Board of Selectmen need to agree on submitting an application to the state level Department of Housing and Community Development.
Upon issuance of the site eligibility letter from the lender or submission of a LIP by the BOS, a formal application to the Zoning Board of Appeals is submitted by the developer. The ZBA begins a public hearing to review the project. This process typically continues for several months while concerns are explored and addressed.
The ZBA must issue a decision within forty days after ending the public hearing. The ZBA may approve the application as submitted, approve the application with conditions or changes, or deny the application.
Should the ZBA deny the application or imposes conditions that are considered to be unreasonable by the developer, the developer has the right to appeal the decision to the Housing Appeals Committee (HAC). The HAC is a state level committee and has the ability to override the local ZBA’s decision as submitted or can determine its own conditions as a compromise between the ZBA and developer.
If the application is approved, a Comprehensive Permit is issued. The developer must still comply with state statutes, such as the Wet Lands Protection Act, and state building codes.
How Does the Appeals Process Work?
If the ZBA rejects the affordable housing development, the developer can appeal the decision to the Housing Appeals Committee (HAC), which can overrule the local decision unless the project presents serious health or safety issues that cannot be mitigated. Typically concerns about impact on traffic, schools, community services, taxes, neighborhood aesthetics or abutting home values are not considered by the HAC.
The right of appeal is only available in communities that have not met the standards and goals of the 40B statute. To prevent the possibility of appeal to the HAC ,the municipality must have 10% of its total housing stock qualifying under the state’s definition of low or moderate income housing.
Historically, the HAC has ruled in favor of
the project moving forward in over 80% of the appeals it reviews. The HAC
attempts to balance the need for additional affordable housing, local community
needs, and the economic feasibility of the project. A decision of the HAC may
be appealed to Superior Court.
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How Do Units Count Toward the State’s 10% Affordable Housing Goal?
There are four tests:
1.) They must be part of a “subsidized” development built to operate by a public agency, non-profit, or limited dividend corporation; or be a Local Initiative Program, which is in partnership with the municipality.
2.) At least 25% of the units in the development must be income restricted to families with incomes less than 80% of the median. They must also have rents or sale prices restricted to 80% of the median average price of apartments and homes in the area.
3.) The development must be subject to a regulatory agreement and monitored by a public agency or non-profit organization; and,
4.) Owners must meet alternative marketing requirements.
Additional Information
Dept. of Housing and Community Development: www.state.ma.us/dhcd/CH40B/Default.htm