New Controversy for Chapter 40B

Chapter 40B, the State’s so called anti-snob zoning law, is under renewed attack. The Boston Globe has run a story detailing a renewed effort to repeal the law by a group formed for that purpose.

On Monday, John Belskis, founder of the Coalition for the Reform of 40B, went to the office of the attorney general to begin the process of getting an initiative to repeal the law on the November 2008 ballot.

The Globe story has the usual suspects weighing in on both sides of the issue. Belskis is quoted as saying

“It’s a developers’ welfare program that doesn’t really create affordable housing,” he said yesterday. “It just doesn’t work.”

On the other side of the question…

But 40B supporters, — a group that includes politically connected real estate developers, lawyers, and bankers — say the law encourages the building of critically needed lower-cost housing in a state where housing costs are out of reach of working-class people.

“Without 40B, there would be a lot less affordable housing,” said Paul Wilson, a lawyer who has represented dozens of 40B developments.

Repealing 40B, he said, would be a bad idea.

And so a statewide petition drive is launched. Chapter 40B has had changes made administratively, as well as legislatively. Without question it has created housing stock that would not have existed in its absence. And yet in so many cases it is a burr in the saddle of local officials, (like me) who have to deal with the ramifications of these developments. The state needs to overhaul this law or scrap it entirely. If the State or proponents of Chapter 40B don’t like suburban zoning then let them legislate mandatory prohibitions on what they consider to be the most objectionable aspects. I look forward to the day that the state actually pays for the additional financial burdens that their policies impose on municipalities. From a planning perspective this law is a disaster, and that judgement comes despite my acknowledging that many of the objections raised to specific developments are solely NIMBY driven. The financial regulations attached to 40B have also been made swiss cheese out of, with locals having to face the questions on the failures of the financial audit process. When the State sets up a set of financial conditions and then winks and nods at blatant violations of those very requirements confidence is not built in the system. Time to start fresh!

Read the Globe story at this link.

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10 Responses to New Controversy for Chapter 40B

  1. Jules Gordon says:

    Your Honor,
    I have seen what happens when town/builder negotiations created so called 40B housing that is integrated into higher valued housing,especially condos.

    The “affordable” price seems to me to be somewhat high for “poor” people to afford.

    After a while the properties end up back in the regular stock at the going rate.

    There is a body of law, federal, state and local, that affects the cost of housing and favors the influential.

    In all it is location, supply and demand that sets the price pressure. Legal remedies will not work unless some benevolent entity buys the land and builds housing at a loss for the singular purpose of good works. This is unlikely.

    There is only so much buildable land available to the town. In order to increase the housing stock and effect the price, the housing density would have to increase creating uncertain results and a larger financial burden to the town.

    On top of all this, huge profits drive influence at all level, usually trumping good works.

    How does one overcome that, your honor?

    I agree about starting fresh. All the laws that regulate housing should be reviewed.

    Got to figure out how to keep any new law ending up with old results.

    As far as the state paying for things, that may help your budget, but it increases my financial burden to the state (higher taxes).

    Let’s find a market driven solution, if possible, that does not add to the tax burden at any level.

    We still have to overcome the influence peddling and pandering that pervades our state.



  2. Bill Manzi says:

    I would like to issue one point of clarification on your comments. With regards to the state paying for things and the relative tax burden my point here was that if the state mandates something that costs the locals money they should pay. If the State cannot pay for it then they should not mandate it. No unfunded mandates!



  3. Jules Gordon says:

    Your Honor,

    I agree with you 150% in that matter. I believe the state will try and tuck to the town if it can get away with it.

    My point, from a citizen view point, is that if the state pays the taxes associated with the matter it comes out of state taxes instead of the town.

    The net difference is no burden to the town and added burden to the state. Townies pay either way.

    Look what happened to the Andover youth building costs. 1 million dollar burden to cover a kiss to the unions.

    It would be nice if there were some means to encourage private investment. It would be a win-win-win.

    I assume you are familiar with all the state imposed regulations, right?

    No solution comes to mind at this time.



  4. Jules Gordon says:

    Your Honor,

    PS; I misspoke on the last question in the previous installment.

    The question should have read; “…you are familiar state imposed regulations regarding state mandates and which are covered by the state and which are covered by local taxes”?

    Sorry for the error.



  5. John Belskis says:

    Your Honor
    Advocates say 40B is working because it is producing housing. They are right, but it is the wrong kind of housing!
    40B developments pressure communities whenever possible to build the lowest possible percentage of affordable units (usually 20-25%). Thus, 40B projects are very effective at producing a glut of upper-middle class housing while eating up developable parcels that should be used for real affordable housing! Prior to 1999, 40B rental units had 81% of total units considered “affordable.” In 2006, it stood at 32.1%. Prior to 1999, 40B owner-occupied units had 33.6% of total units considered “affordable.” In 2006, it stood at 26.6%. To make matters worse, 40B owner-occupied proposals in the pipeline have only 19.1% affordable units! This is occurring at the same time as, according to the Boston Foundation’s Boston Indicator Report, the number of towns in Greater Boston in which a median-income household can afford median-priced home plummets from 148 to only 27 out of 161!


  6. Bill Manzi says:

    Those are some pretty eye-opening stats. Whether the political will is there for 40B reform is an open question. I hope that you will come back to the blog to talk about this some more. Can we get you to do a guest post?


  7. John Belskis says:

    Your Honor,

    I will be delighted to do a guest post. I enjoy educating the public about the failure of this 38 year old law that has failed to perform its mission. Two points before I return: We’re not NIMBYs we understand and support the need for an increase in the supply of affordable housing. We have worked and lobbied for over four years to get reform of this law. It hasn’t been responded to so we are forcing the issue by repealing the current law and see what will emerge that is effective and acceptable to the executives and administrators of our cities and towns.


  8. Jules Gordon says:


    Right on. I do not know the statistics of 40B, but I understand how money functions in governance, whether public or private. Since there is no profit to the investors or graft to the politicians within 40B it will eventually serve the money side and not the citizens targeted for its benefit.

    Mayor Manzi is rightly disturbed that the state is leaving the town to foot a mandated regulation, there fore it has no stake in the matter. Even if it did, the results would be the same.

    Please read my early post.



  9. Denise L. Perrault says:

    I feel that the word ‘affordable’ should be defined as well as ‘low-income’. Affordable to who? I feel that the extremely low and low-income people are being left out of the newly built developments, therefore, 40b does not comply with the Fair Housing Act. The 40b law should build for ‘low income AND moderate income’ people as the Fair Housing Act states in the federal law with the intention of seeing impoverished people taken out of the impoverished area and into a better location. This Fair Housing Act was created during the ‘Civil Rights’ movement.

    It seems people are continueing to refer to housing as ‘affordable housing’, however, they should be referring to low income and moderate income housing to be built because if only moderate income housing is built, it is class discrimination, and familial status discrimination in which HUD is against, therefore, 40b is incongruous with the Fair Housing Act if developers ONLY choose to develop for moderate income people, or shall we say the 80% median income which leaves out 20% of the people in that town.

    Presently there are 63,000 qualified people on a 5-10 year waiting list. There is a shortage of housing that ‘people can afford’.

    If the towns are only building for the 80% or only for the elderly, there are many people being left out to enjoy a beautiful development. Should the 20% remain in slums, broken down tenements, have no access to what others enjoy simply because they cannot afford it?

    Please read the federal law, the Fair Housing Act.

    There is class discrimination and hidden racial discrimination.

    Let’s be fair.


  10. Denise L. Perrault says:

    To clarify there are 63,000 people presently on a Section 8 waiting list who qualify for low-income housing.

    Massachusetts is the 3rd highest cost of living state in the entire country, not to mention, as an aside, we are the only state in the country who punishes people for 5 years when they get into an accident.

    Are you aware that the ‘Cares Van’ is owned by a large private insurance company, called Commerce. The Commonwealth pays Commerce who is a large Insurance Company to tow cars or provide gas to consumers. Isn’t this a conflict of interest? Hmmmmm.


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