Question 2: A Law Relative to Comprehensive Permits and Regional Planning

Posted on 28. Jul, 2010 by ywwlawrence in Question 2

Scroll down to see the Attorney General’s official summary.

Our summary:

      This proposed law would repeal Chapter 40B, a law which encourages the construction of affordable housing. Specifically, it sets a benchmark that 10% of a city or town’s housing should be deemed “affordable” housing. “Affordable” implies that a household spend no more than 30% of its income on housing. If a community does not meet that standard, it allows developers to receive a single comprehensive permit from the zoning board of appeals (ZBA) if at least 20-25% of their project is affordable housing.

      Under the current law, the local ZBA goes through a review process and can make revisions to or include conditions upon the proposal. This revised permit as well as the decision whether or not to grant a permit can be subsequently taken to the Housing Appeals Committee. The developer’s proposal, the ZBA’s decision, and any permit issued cannot be “uneconomic,” in that a public or non-profit organization could not build or operate the development without financial loss or that a limited dividend organization could not build or operate without a reasonable return on their investment. It must comply with at least minimum safety standards and should be “consistent with local needs” by reflecting the need for low- and moderate-income housing and the number of low- and moderate-income people in the community.

      If the proposed law should pass, the repeal would take effect on January 1, 2011, but it would not affect any proposed housing projects that had already received both a comprehensive permit and a building permit on at least one unit.

PROS of Repealing 40B:

• 40B is an imperfect law, but despite years of trying to reform it, it has never been changed. Instead of continuing to try to reform, start over again
• It encourages development when that might not necessarily be the best thing—instead of preserving green areas—potentially hurts environment
• Developers can potentially make developments that are 80% non-affordable. This is inefficient use of these benefits and benefits developers more than the community.

CONS of Repealing 40B:

• 26,000-58,000 affordable housing units have been created as a result of Chapter 40B
• 51 municipalities in MA have met the 10% affordable housing standard as a result of 40B, this is more than twice as many in 1997, and there are 40 more municipalities that are close to the threshold
• These building projects create construction jobs and other jobs

The Attorney General’s official summary:

This proposed law would repeal an existing state law that allows a qualified organization wishing to build government-subsidized housing that includes low- or moderate-income units to apply for a single comprehensive permit from a city or town’s zoning board of appeals (ZBA), instead of separate permits from each local agency or official having jurisdiction over any aspect of the proposed housing.  The repeal would take effect on January 1, 2011, but would not stop or otherwise affect any proposed housing that had already received both a comprehensive permit and a building permit for at least one unit.

 Under the existing law, the ZBA holds a public hearing on the application and considers the recommendations of local agencies and officials.  The ZBA may grant a comprehensive permit that may include conditions or requirements concerning the height, site plan, size, shape, or building materials of the housing.  Persons aggrieved by the ZBA’s decision to grant a permit may appeal it to a court.  If the ZBA denies the permit or grants it with conditions or requirements that make the housing uneconomic to build or to operate, the applicant may appeal to the state Housing Appeals Committee (HAC).

After a hearing, if the HAC rules that the ZBA’s denial of a comprehensive permit was unreasonable and not consistent with local needs, the HAC orders the ZBA to issue the permit.  If the HAC rules that the ZBA’s decision issuing a comprehensive permit with conditions or requirements made the housing uneconomic to build or operate and was not consistent with local needs, the HAC orders the ZBA to modify or remove any such condition or requirement so as to make the proposal no longer uneconomic.  The HAC cannot order the ZBA to issue any permit that would allow the housing to fall below minimum safety standards or site plan requirements.  If the HAC rules that the ZBA’s action was consistent with local needs, the HAC must uphold it even if it made the housing uneconomic.  The HAC’s decision is subject to review in the courts.

     A condition or requirement makes housing “uneconomic” if it would prevent a public agency or non-profit organization from building or operating the housing except at a financial loss, or it would prevent a limited dividend organization from building or operating the housing without a reasonable return on its investment.

 A ZBA’s decision is “consistent with local needs” if it applies requirements that are reasonable in view of the regional need for low- and moderate-income housing and the number of low-income persons in the city or town, as well as the need to protect health and safety, promote better site and building design, and preserve open space, if those requirements are applied as equally as possible to both subsidized and unsubsidized housing.  Requirements are considered “consistent with local needs” if more than 10% of the city or town’s housing units are low- or moderate-income units or if such units are on sites making up at least 1.5% of the total private land zoned for residential, commercial, or industrial use in the city or town.  Requirements are also considered “consistent with local needs” if the application would result, in any one calendar year, in beginning construction of low- or moderate-income housing on sites making up more than 0.3% of the total private land zoned for residential, commercial, or industrial use in the city or town, or on ten acres, whichever is larger.

The proposed law states that if any of its parts were declared invalid, the other parts would stay in effect.