expedite permitting: overview » introduction » facilitate affordability » case study: chapter 40b

While real progress has been made in meeting the housing needs of Massachusetts residents, much work remains to be done. In 2008, three out of four households in the lowest income quintile in Massachusetts (income below $25,600) in 2008 spent more than 30 percent of their income on housing - the generally recognized federal standard of housing affordability - and 55 percent spent more than half their income on housing. Among households in the second income quintile (income between $25,875 and $51,400), some 55 percent spent more than 30 percent of their income on housing and nearly 18 percent spent more than half their income. [1]

Several groups have outlined the major challenges to developing affordable housing in the state. For example, in 2003, Governor Romney appointed a bipartisan Chapter 40B task force that concluded, "Development in Massachusetts is often expensive and time-consuming; the major factors contributing to this problem are: the high cost of land; housing demand; and the extent of regulation." [2] The same year, The Commonwealth Housing Task Force, composed of representatives from housing organizations, the business community, and organized labor reported in a study that housing affordability is compromised by the "the lack of zoning for building single-family homes on small lots and the construction of apartments." [3]

What is Chapter 40B?

With the adoption of the 1969 Comprehensive Permit and Zoning Appeals Act, also known as Chapter 40B, Massachusetts enacted the first state statute allowing developers of affordable homes to access a special appeals process known as a builder's remedy. Under the statute, special expedited and flexible permitting rules apply to developments where at least 20 to 25 percent of the units include long-term affordability restrictions. Qualifying developments may also receive comprehensive permits, which typically result in a more streamlined approvals process.

When a comprehensive permit to build a qualifying development is denied by a community in which fewer than 10 percent of the homes are affordable to low- or moderate- income families, or a municipality approves the development with conditions that make the project uneconomic (for example, a reduction in allowable units), the builder may appeal to the State's Housing Appeals Committee. If the municipality cannot provide adequate justification for the denial, the Appeals Committee may override local land use decisions and allow development to proceed.

How has 40B helped achieve affordable housing in Massachusetts?

40B has been lauded to be a "major enabling tool for most of the new affordable housing units created in the commonwealth", addressing many of the barriers to affordable housing production in Massachusetts. [4]

According to the Citizens' Housing and Planning Association (CHAPA), as of February 2010 almost 58,000 units have been created statewide under Chapter 40B. Of these units, over 40,000 units are apartments and nearly 17,500 are homeownership units. More than 30,000 of the homes are affordable for low and moderate income residents earning 80% or less of the area median income. Under 40B, an additional 12,000 homes have been approved locally and are awaiting construction.

What are the impacts of 40B development on existing communities?

Though NIMBYism is an ongoing challenge to the production of 40B developments, many studies refute that 40B developments have a negative impact on communities. Former-Governor Romney's bipartisan 40B Taskforce found no evidence of 40B developments being the sole or primary cause of municipal school budget shortfalls, no evidence that it strains municipalities ability to provide public safety services (fire and police), and no evidence that 40B developments negatively impact water and sewer infrastructure. [5]

An MIT study of large-scale, high-density 40B development in single-family, suburban neighborhoods concludes that concerns that 40B developments negatively affect surrounding property values are "misplaced". The study, which presents nine case studies of 40B development in eight Boston suburbs, indicates that none of the projects examined lowered the value of adjacent single-family homes. [6]

Chapter 40B in the News

A coalition opposing 40B has pushed for a state ballot initiative to repeal the law. If the group is successful in getting the initiative on the ballot, a vote on the fate of 40B will take place in the Commonwealth's upcoming November 2010 election. A diverse committee representing faith-based, municipal, environmental, civic, business and other interest groups are mobilizing to defend 40B, arguing that it is responsible for 80 percent of the affordable housing production in Massachusetts outside major cities. The stakes of this referendum are high, as Chapter 40B has been a national model for other states interested in ensuring the development of affordable housing. Click here to learn more about protecting 40B.

Visit CHAPA's web page to read more about Chapter 40B [PDF].

Download the Center for Housing Policy's printable fact sheet on the Chapter 40B [PDF].

Click here to learn more about the states' role in creating enforceable rights to support the development of affordable homes, or continue learning about expedited permitting and review processes.

[1] Housing expenditures as a percentage of income by quintile are from The Housing Bust and Housing Affordability in New England: An update of Housing Affordability Measures. June 2010. By Robert Clifford. Boston, MA: Federal Reserve Bank of Boston. The Center for Housing Policy estimated the quintile income thresholds for Massachusetts by tabulating the 2008 American Community Survey Public Use Microdata.
[2] Chapter 40B Task Force Findings and Recommendations
. May 30, 2003. By Chapter 40B Task Force. State of Massachusetts.
[3] Building on our Heritage: A Housing Strategy for Smart Growth and Economic Development Report and Recommendations for The Commonwealth Housing Task Force, that housing affordability is compromised by the "the lack of zoning for building single-family homes on small lots and the construction of apartments."
[4][5] Compelling Reasons Why the Legislature Should Resist Call to Repeal Chapter 40B. 2003. By Theodore Regnante and Paul Haverty. Massachusetts Law Review, Volume 88 (2)
[6] Fear and loathing in Massachusetts : Chapter 40B, community opposition, and residential property value. 2004. By David J. Ritchay. Cambridge, MA: Massachusetts Institute of Technology.