By Dan Kennedy • The press, politics, technology, culture and other passions

Dear media: Please educate us on Chapter 40B

Today’s Boston Globe editorializes against a ballot measure that would repeal Chapter 40B, the state’s so-called anti-snob-zoning law. The law allows developers to circumvent local zoning ordinances in order to build affordable housing.

Frankly, I’m inclined to vote in favor of repeal. My impression — and here’s where I hope the media, especially the Globe, will do their job — is that the law simply hasn’t worked. In return for setting aside a fairly small percentage of units for affordable housing, developers are able to ram through ugly condo developments that enhance no one’s quality of life.

I’m all for greater density, smaller lot sizes and smaller houses in the suburbs. But with 40B, it seems that what you end up with are a few monstrous developments on the periphery of town, with no real change to overall zoning patterns.

The Globe observes that 40B developments could be built along commuter-rail lines. True, and pigs could fly if they had wings. What I’ve seen is that 40B developments are built along highways, dumping more cars and SUVs onto already-congested roadways.

Finally, 40B encourages overdevelopment in communities that just can’t handle it. Here in Danvers, we are under a perpetual drought watch. This summer was very hot and dry, so the current drought is real. But year after year, the water warnings here never let up, no matter how wet the weather is. That leads to a common-sense observation: we don’t have a water shortage; we have too much development. And 40B means that town officials are limited in their ability to stop things from getting worse.

Over the next few weeks, as we move closer to Election Day, I hope news organizations will take a good, hard look at Chapter 40B and whether it really deserves to be retained. What are the success stories? What are the failures? How could it be improved?

I would just as soon not vote against affordable housing, but right now I don’t see any reason to keep this law on the books.

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  1. L.K. Collins

    Your liberal halo is tarnishing, Dan.

    Of greater unacceptability is the habit of 40B developers paying construction companies that they own exorbitant rates for building, and then complaining to the housing authorities that they are losing money and need to be excused from the 40B requirements.

  2. Tina Cassidy

    Dear Dan, check out this website.

    There are lots of stories about 40b to read. 40b is the state’s primary tool for creating affordable housing, without this law seniors and working families would not be able to afford this state, and it creates jobs and economic development at a time when both are sorely needed.

    I think you should reconsider and vote no on 2.

    • Dan Kennedy

      @Tina: What we need is for someone really to drill down on this and tell the full story. I’ve explained why I think 40B hasn’t worked in my community, and trust me, I’m not hallucinating. No doubt there are some success stories, too. Here is a website put up by those seeking to repeal 40B. But I’m not going to bother reading it. (Well, I might take a peek.) I want neutral, trustworthy information, not advocacy on either side.

  3. Rick Peterson

    Way too late for this discussion before the election. The Globe or Herald could run a piece every day from now until the election without changing many minds. (You don’t expect analysis from local TV, do you?) 90% of the voters want simplistic quick fixes; witness how greyhound racing has moved elsewhere but its workforce has not after that plebiscite. (I wouldn’t worry too much about new “ugly condos” for a while. The market seems to be solving that problem.) Best venue for this discussion would be “Greater Boston”. They won’t get gangbuster ratings but at least their viewers probably vote.

  4. Dan, According to Citizens Housing and Planning Association, “80% of the affordable housing built outside of the major cities has been built because of this law. During that same period, the affordable housing law generated $9.25 billion in economic activity.” CHAPA head Aaron Gornstein has been one of the steadiest advocates for affordable housing over the last quarter of a century, and I have alerted him to your posting and asked him to respond.

  5. James Madden

    Dan, unfortunately in this debate one side’s “advocacy” is based on full information on comprehensive permit developments and numerous studies by academics at MIT, Tufts, and UMass while the other side’s is based on selected examples and one outdated report by the inspector general. Moreover, the full, careful studies that are out there are called “advocacy” by those seeking to remove this important tool. I too would love to see the media step up and handle it better, but that doesn’t take away from the value of the information the No on 2 advocates are trying to provide. Please do look at both sides websites. Look at the quality of information, and look at who the people behind both campaigns are. The difference is dramatic.

    This is the latest academic study on the issue. It concludes that repeal of this law would cost $9.25 billion in economic benefits.

    This 2009 study looks at the effects of certain developments and how they are perceived before and after construction.

    There are many more useful resources here Repeal minded people would call it advocacy because CHAPA has taken a stand, but what is wrong with taking a stand based on solid research and experience?

    • Dan Kennedy

      @James: What I reported about Danvers is accurate, if anecdotal.

  6. James Madden

    Dan, I didn’t say your Danvers anecdote was inaccurate. It is just one of 351 cities and towns affected by this law, and the studies I linked to (and more in the CHAPA list) evaluate how the law has impacted all of them.

    This is why I appreciate your call for more investigation of the issue. I just want to point out the work that has already been done towards that end.

  7. If Danvers requires more affordable housing and Danvers can not support more large scale development, 40B does not contain a workable solution for anyone on any side of the argument.

    It’s perfectly reasonable to be pro affordable housing and anti-40B. There are clear weaknesses in 40B, which does more to serve developers of the suburban-style apartment fiascoes one sees off of 128, 93 and rt 1 in Saugus than it does to serve those who should benefit from the program. There is nothing smart about those growths.

    I just think it’s time to go back to the drawing board and come up with an alternative to a one-size-fits-all communities solution.

  8. Patrick Hart

    Dan, at the end of your post you ask how 40B “could be improved.” I think that’s an important question, and I don’t believe that 40B is a perfect law, but if the law is repealed, it’s gone. If the law stays on the books, there will be opportunities to improve it — indeed, in the last three years, the Patrick Administration made several regulatory changes to Chapter 40B, many of them aimed at increasing the ability of towns to take control of their own development destiny as long as the towns had sensible, realistic plans to improve affordable housing. For instance, the state allows communities to create Housing Production Plans that exempt them from large 40B developments coming in if they have made a small amount of progress toward their housing production goals.

    Regarding your final point about what the reasons to keep the law on the books are, I think the links above show some very compelling reasons. The thousands of affordable homes built through this law, as well as the projects that will be stopped (and accompanying jobs lost) if the referendum passes. The vast majority of affordable housing created outside our cities has been created through this law, and repealing it will make it that much harder for low and moderate-income families to find homes in the suburbs.

    I can’t speak directly to the Danvers situation because I do not know the town or the various water infrastructure issues there well. As I mentioned, no law is perfect, but at the same time, many provisions of the 40B regulations, as I mentioned earlier, give towns a lot of say if they engage in planning how needed affordable housing will be created. If the law remains on the books, we will have continued opportunities for discussion about how to improve the law. If the law is repealed, our single most effective tool for creating affordable housing in one of the country’s most unaffordable states will be gone.

  9. Mike Stucka

    Dan’s concerns about water shortages are very real concerns indeed — but the link to 40B’s a bit tenuous, given the marginal increase in density in an already fairly densely populated area.

    And if 40B can be tweaked, so can water usage.

    If memory serves, a community neighboring Danvers gets its water from wells, but watering restrictions are based upon river flow, e.g., a different source of water.

    But I think any water department can chart the water usage on a monthly basis for you. Most people are going to be flushing the toilet about as often in January as they do in August. (Note: There are many inside-the-house water conservation measures you can take, too.) But summer water usage typically skyrockets — when availability is low — because people keep watering their lawns.

    There’s answers to that, of course — enforcement and education among them. Why plant a lawn that needs watering, or why not learn to live with a brown lawn? Why not get a rain gauge on an automatic sprinkler system, so you’re not watering the lawn during a storm or when your lawn’s already gotten 2 inches of rain that week?

    Or, to come full circle here: Do people value their lawns more highly than allowing teachers to buy a home in their community?

    Or, you folks can go the smart way and move to Georgia, where $150,000 gets you a huge house, drought-resistant Bermuda grass, taxes of a couple thousand bucks a year, sweet tea, and Waffle House. =)

  10. Mike LaBonte

    I have followed for some time the anti-40B Massachusetts Slow Growth Initiative, but have yet to learn much of anything new from them. My fear is that anyone arguing for 40B on the basis that it creates affordable housing is misinformed, but on the other hand those arguing against it most strongly have direct financial interests in having 40B go away.

    So I think Dan is on to something, and Rick Peterson says it well too. The media and most people have largely ignored this complicated issue, and it is too late in the election cycle to catch up.

  11. Bob Gardner

    I’ve seen 40B abused for almost 30 years,but the abuse of 40B is a much smaller problem than the lack of affordable housing. From what I’ve seen the objection to 40B isn’t that it doesn’t produce enough affordable housing–it’s that it produces any affordable housing at all.
    Personally I’d rather see a return to rent control, which would provide much more affordable housing at much less cost, and would have protected tenants in foreclosed buildings.
    Any town that wants to avoid the bad features of 40B just has to facilitate enough affordable housing to reach the threshhold of 10%. And they’ve known this for almost 30 years.
    Why is it that so many towns have failed? And what are the chances that if 40B is repealed, that it will be replaced with something better?

    • Dan Kennedy

      @Bob: But how do you get to the 10 percent? Vast swaths of Danvers consist of small, older homes on tiny lots. That would be true of our neighborhood, which is in the center of town — an urban planner’s dream, except that we commute to work. We also have a couple of trailer parks. And a few 40B projects. Yet we’re not at 10 percent.

  12. Bill Schweber

    I’m so confused—there’s all this talk about the need for more “affordable” housing, yet home prices are down 10, 20, 30% in the last few years, and are therefore far more affordable. Has 40B reduced housing costs any more than a solid recession has done? Is the need for 40B–whatever pros and cons it’s supporters and detractors claim–been greatly diminsihed by the recession? Or is housing “affordable” only when it is almost free? These laws seem to be static, cast-in-concrete creations, while the real world is always changing.

  13. Aaron Read

    @Dan: the bigger problem is the thoroughly idiotic structure of “351 Cities and Towns” that make up Massachusetts. Having moved to upstate NY, I’m not exactly endorsing a broader, county-level government per se…stupidity in government is like toxic waste, it doesn’t matter how thinly you spread it out – it’s still gonna kill you. But there is absolutely no need for Massachusetts to have such incredible duplication of services so close to each other. And that ultra-small-town mentality also directly leads to 40B problems and public utility problems like Danvers’ water issues. Imagine if, instead of the haphazard method of which areas are “on the Quabbin” and which aren’t…you had a system that inherently required all of Middlesex county to either be on it or off it. And if the latter, than some other source that was county-wide would be the water source.

    @Bob: Given the wild swings in housing prices, rent control looks attractive now, to be sure. But it’s a Pyrrhic victory at best. It provides for much more stability in the housing market by virtually guaranteeing overall stagnation. Not exactly an ideal situation…and it tends to push off the problems of today onto a later date, which NEVER works out well.

  14. Al Fiantaca

    Having just scanned this thread, my opinion is similar to Patrick Hart, which is that while 40B is not perfect, simply taking the tack that repeal is the solution is not the path to follow. What should we do, vote to repeal, then hope that towns and developers do the right thing and encourage a healthy mix of affordable and market rate housing in their areas, or that the Legislature comes up with a more effective, passable alternative that accomplishes it’s desired goals? It has been my experience both here in MA, and also in CT, that whenever the words “affordable housing” are uttered, the same arguments appear, “I don’t want those people in my community, it’ll lower my property values”, and I don’t even want to mention the complaints about the potential owners, themselves. I saw it happen time and again when I worked in a company that served developers. Keep what we have, then make improving it a priority task.

  15. Repealing 40B is really a red herring for. other problems (no surprise here, isn’t everything these days?). The problem with 40B is that a handful of projects have garnered headlines. Activists of all kinds can target these projects and “greedy developers” to garner even more headlines, creating the “40B bad” meme. The data says otherwise. Ideally, looking at the law and what projects should be built, is an important process and there have been some reports. The larger issues though are the following:

    1) The state really missed smart growth opportunities that Romney was smartly promoting (for a few hours) when he was governor, strategies that have not been effectively implemented due to the archaic process of govt., difficulty building over commuter rail tracks, and push back from local officials. The 40B law is needed because most developers don’t create housing that regular folks can afford – they create housing that has the biggest markup and biggest profit, just like every other business sector. Housing being a necessity requires a 40B law (or a reasonable facsimile) to make sure that there are housing opportunities for the rest of us. Ideally, the two are intertwined but somewhere along the way, someone dropped the ball.

    2) The larger problem of zoning, housing, and 40B, comes down to a subset issue: School costs. School costs are very high and this is driving the preservation of current zoning. I have been looking at these issues for more than a decade and I’ve come to the conclusion that there is a veiled (and no so veiled) “war on. families,” or, more accurately, a “war on poor and lower-middle-class families,” hidden deep inside community zoning. Most towns are happy to bend over backwards for a 55-plus community or 40B project because the costs associated with the new residents are relatively low (ignoring the costs of an increase in EMT hires needed in some cases). Just keep the new families with children out. New families with children boost school enrollment. With higher school enrollments comes the need for more teachers. With teacher union pay scales at some of the highest in the country, a bunch of families moving into town in one year can bust a school budget or boost class sizes, never mind the “problems” that the children of poor or lower-middle-class families bring with them. This “logic” goes against reality, since “rich” folks who can afford these towns also have children, some of them with deep, expensive problems. But, no one says word one about them moving into the affluent town, since they could afford the $800K house. Back in 2002, I was following a story about a school district that was openly finding apartments in another town for parents of children with very expensive special needs, in order to not have to service those children. Better to spend a few thousand helping them move out than spend $80K paying for them to be educated at the Cotting School. School costs really drive the argument. So, instead of talking about the high cost of education – kindergarten teachers with doctorate degrees making $94,000 a year in one town I know, for example – we’re talking about 40B.

    3) Some will say Proposition 2 1/2 is part of the problem, and there is a little bit of reality to that. Sometimes, government costs go up more than 2.5% a year. However, with good planning, frugality, and new opportunities, a 2.5% increase in property taxes, along with higher rates on new growth, should be more than enough to sustain municipal government even in good times. And when things are bad, it should be WAY more than enough. However, it hasn’t been. Why? Well, unfunded state and federal mandates are one reason. Another is the increases in municipal employee health care costs. Municipal employees and teachers receiving built-in 6% to 9% pay increases each year in some communities is another reason. If your town budget is 80 percent salaries and the bulk of those employees are getting these kinds of pay increases but you can only raise property taxes 2.5% divided by the levy limit, you’re heading for layoff city … So, again, we’re back to the high costs of education employees, municipal employees, etc., while not really discussing it.

    I could write a book about some of the things I have seen over the years. But what is so surprising is that the information is right there for all to see … we just don’t really want to have a conversation about it. Instead, we just call people “teacher haters” and say that anyone who wants to have a logical discussion about the cost of government is a “right-wing lunatic.”

  16. Sean Roche

    Keep in mind that municipalities who have done little or nothing to provide affordable housing affirmatively have failed to act in the shadow of the sword of Damocles that is 40B. The odds that they will add affordable housing without the threat of 40B is completely unrealistic.

    That doesn’t mean that 40B can’t and shouldn’t be tweaked to result in better, more sustainable development.

    By the way, if we want more smart growth, one thing we could do is suspend all municipal zoning within some distance of a transit hub (T station or commuter station) if the area doesn’t meet some density (commercial and residential) threshold.

  17. Bob Gardner

    @ Dan,
    You ask “But how do you get to the 10 percent?” which is a good question. There are lots of ways, ranging from free market solutions, such as loosening up zoning to allow people to subdivide their homes or put in “mother-in-law” apartments, to the more conventional left wing solutions, such as co-ops, limited equity projects, public housing, rent controls, etc. And lots of stuff in between.
    You don’t have to like all these solutions; you just have to tolerate some kind of policy that gets your town from, let’s say six percent affordability to ten percent.
    The problem is that no one at the town level wants more affordable housing, period. There are lots of reasons, but rather than getting into a debate about the reasons, or worse, demonizing everyone who dislikes affordable housing, just look at the results, over almost thirty years.
    I’m all for reforming 40B into something that gets more affordable housing built with less of a payoff to developers, but nobody is proposing any such reform, least of all the people who are pushing for 40B to be repealed.

  18. C.E. Stead

    DK – here is a link to a column I wrote last June.

    Since that time, the Conservation Law Foundation has filed suit to force a six BILLION wastewaster program onto the Cape, similar to its suit to clean up Boston Harbor. We are overbuilt now, but the state wants to force us to build more houses. In East Cambridge, you can slap up a 10 storey affordable building, and it goes towards quota. We don’t have the infrastructure to support such a project. Meanwhile, foreclosed condos are going for $50 thousand from banks in Haynnis, but housing authorities can’t buy them. The law insists on new construction.

    The law also makes no allowance for resort communities. Of our ‘stock’, vast numbers are unoccupied second homes. We can’t use a number of homes with year round residents, because technically, all those second homeowners could move in full time tomorrow. Also, as hotels went condo, all those tiny holiday rooms are counted as housing units in their own right. What are our chances of ever reaching that arbitrary ten percent figure?

    I’ll be writing more as the election rolls around, but the main failure of 40b is its insistance that all the state is just like the city.

  19. James Madden

    Just looked at the DHCD website, and Danvers is above the 10% threshold. It could potentially drop back after the census, but it has met the goal.

    • Dan Kennedy

      @James: Town officials anticipate falling below again. Soon.

  20. @Dan: You’ve clearly touched a nerve. The most intelligent comments of the bunch come from Aaron Read and Cynthia Stead, who allude that land use planning in Massachusetts is archaic. We should be planning and siting affordable housing on a region-by-region, rather than town-by-town, basis. Before they got distracted by the repeal threat, CHAPA was working with a consortium of 37 municipalities across the state on a bill that would have injected rational, smart growth planning into affordable housing permitting. The bill I drafted, cosposored by Rep. Brownsberger and Sen. Panagiotakos (yes, from Lowell), and endorsed by the Mass. Municipal Association, died in the Joint Housing Committee last year, like so many reform bills before it. Hopefully we can all return to the table after this election and hash out a sensible reform bill that preserves what’s right about 40B, and fixes what’s wrong.

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