What's a 40B?
Attorney
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Let’s face it, if you know about it, you probably have a strong opinion about it. If you don’t know what it is and are still reading this, you’ve probably got a reason to learn quickly.
40B refers to Massachusetts General Laws Chapter 40B, also known as the “anti-snob zoning” act. It’s a vehicle used by developers, predominantly in cities and towns that don’t have at least 10% of their housing deemed “affordable” by the state. The idea is that in order to increase “affordable” housing across the state, a developer can go before the town’s zoning board of appeals to get a single “comprehensive permit,” streamlining the typical permitting process. But that’s not generally what gets people up in arms. A 40B requires that at least 25% of the units being built in a development are sold or rented at a price the state considers “affordable.” In exchange, the developer can ask for waivers from local requirements, including density, setbacks, and permitted uses, among other things.
I say “ask for,” because that’s still what a developer has to do: ask for the waivers. Realistically, however, if the developer doesn’t get the relief, or feels that the process is taking too long, it can take the matter up to the Housing Appeals Committee (“HAC”). In that forum, the town has to show that it’s local concerns, including health, safety, environmental, planning or other concerns, outweigh the presumed need for affordable housing – so long as the town hasn’t met it’s 10% state-imposed requirement.
Clearly there are instances where that is the case. The HAC upheld Waltham’s denial of a comprehensive permit where the access to the site proved too dangerous. They upheld Barnstable’s denial of a waterfront development where the town had, in its master plan, earmarked the particular site for marine business – something that could not easily be located elsewhere in town (onshore). They have also upheld locally-imposed conditions, such as the installation of residential sprinkler systems and water storage tanks to address fire safety concerns and required developers to contribute to road improvements. In all these instances, however, the towns faced a heavy burden in demonstrating that their concerns outweighed the presumed need for affordable housing.
Whether you are opposing a 40B or trying to develop one, legal counsel knowledgeable in the particularities of Chapter 40B and its implementing regulations is essential. Our office has that expertise, and is available to answer your questions.