An article that appeared last week in one of the other local papers underscored just how much energy is expended trying to find ways that Harvard might circumvent Chapter 40B, the state’s comprehensive permit statute. We should be focusing our considerable collective talents instead on using the law to our advantage, as so many other communities have, to provide expanded housing opportunities for our residents.
The article referenced a little-used alternative to the 10 percent standard by which a municipality can “get a pass” on 40B development and suggested that Harvard might have a good shot at qualifying under this measure. It does not, but the article demonstrates that a great deal of misinformation and disinformation about 40B has found its way into the public debate. Here are some facts that your readers should know about the state’s comprehensive permit statute, Chapter 40B:
There are two alternative “statutory minima” to the 10 percent rule: 1) the 1.5 percent “general land area minimum,” which was the subject of the article. Under this scenario, a municipality can qualify if low- and moderate-income housing exists on sites comprising more than 1.5 percent of its total land area that is zoned for residential, commercial, or industrial use; and 2) the 0.3 of 1 percent “annual land area minimum.” The standard for this is whether an application before the Zoning Board of Appeals would result in the commencement in any one calendar year of construction of low- and moderate-income housing on sites comprising more than 0.3 of 1 percent of the town’s land area or 10 acres, whichever is larger. (A proposal over this threshold wouldn’t necessarily be disallowed, but the town could require that it be phased.)
There is a reason these two alternatives are not widely known and are little used: it is very difficult to qualify under them, even for towns with little land and sizable subsidized-housing inventories. In the nearly 40 years Chapter 40B has been in existence, only a handful of communities have argued that they met these criteria. Just two—Weymouth and Somerville—have qualified; others have unsuccessfully made their case to the Housing Appeals Committee or the courts. To my knowledge no one has ever successfully argued the 0.3 of 1 percent, although there have been HAC challenges on this as well.
According to the town’s most recent master plan, there are about 13,823 acres of land subject to Harvard zoning, so the “trigger” is about 207 acres for the 1.5 percent threshold and about 42 acres for the 0.3 of 1 percent. (Other exclusions may reduce this somewhat, but I wouldn’t spend a lot of time and energy on the math.) In mixed-income homeownership developments only the affordable units count, and only those that are occupied, available for occupancy, or under permit as of the date the application that is being challenged is submitted to the ZBA. Furthermore, only the impervious area and landscaped area of such sites is included in the calculation. (This seemed to be a point of widespread confusion, according to the article.) What this means is that the acreage that “counts” is essentially the footprint of the building(s), or in the case of a mixed-income homeownership development, those buildings or portions thereof that include income-restricted units, and their associated share of landscaped areas, parking, etc.
To suggest that Harvard is close to meeting this standard, as some have done, indicates a lack of understanding of the spirit and letter of Chapter 40B, the regulations that implement it, and the substantial body of case law related to it, which is what ultimately determines the rules of engagement. I submit that questions concerning the mechanics of the law and its applicability are best answered by town counsel, not through speculation by the various town boards and committees in the media.
Don’t misunderstand me: 40B is a complex issue. It poses real challenges for town officials trying in good faith to balance local concerns with their responsibilities under the law. The challenges are amplified in communities with no public water or sewer systems. But of 161 eastern Massachusetts communities, Harvard has the 38th largest land area (excluding Devens) and the 6th lowest density, yet the percentage of its year-round housing stock that qualifies for inclusion on the Subsidized Housing Inventory is just 2.8 percent. Without Devens, this drops to 2.6 percent. We should be able to find a way to increase and diversify our supply of affordable housing, and 40B will likely be a tool we’ll need.
We have prepared a sound plan, committed financial resources in the form of community preservation funds, and established an Affordable Housing Trust Fund. Three of our neighbors—Bolton, Berlin, and Acton—have recently received certification of adequate progress under their planned production plans, so they now have a one-year reprieve from 40Bs that are inconsistent with those plans. Their planned production plans were very similar to Harvard’s, and all three achieved this milestone as the result of 40B development.
40B is a an easy law to hate, but it is also the vehicle that now accounts for much of the region’s market-rate, as well as affordable, housing development. In a state where chronically high housing costs (even in today’s soft real estate market) are driving out jobs and talented, well-educated workers, my prediction is that it’s a law that is unlikely to go away anytime soon. Harvard should focus its energies on increasing the supply of attractive, sustainable affordable housing, not looking for loopholes and fighting every proposal that comes our way.
The author is a consulting planner and the author of “The Record on 40B (2003),” prepared for the Governor’s Task Force on 40B, and the recently released “Update on 40B Production (2007).” Her clients include government agencies, municipalities, nonprofit organizations, and financial institutions, but not 40B developers.
