Barber: Affordable Housing in Massachusetts

BARBER - FINAL (DO NOT DELETE)
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Affordable Housing in Massachusetts:

How to Preserve the Promise of 40B
with Lessons from Rhode Island
ERIKA BARBER*
ABSTRACT
Affordable housing is a deeply contentious issue in Massachusetts and

throughout the nation. This Note responds to the 2010 attempt to repeal the
Commonwealths Affordable Housing Law, 40B. The ballot measure
failed and the law survived but not without a fight.
In an effort to develop a solution that balances the need for affordable
housing production with the need for local community control over
development, this Note will explore Rhode Islands Low and Moderate
Income Housing Law as a potential for reform in Massachusetts. Rhode
Island has become a model for success in recent years as it has increased
affordable housing options while still emphasizing local planning and
community needs. This Note advocates for the Massachusetts Housing
Appeals Committee to adopt the structure of Rhode Islands State Housing
Appeals Board. This change would bolster the Massachusetts
comprehensive permitting process while promoting housing development.
Land use and zoning modifications will not solve the affordable
housing crisis, and any effort to increase access to housing must also
include a safety net for the states poorest residents. Accordingly, this Note
suggests shifting state resources from incentive payments to municipalities
under the Smart Growth Law 40R to a program that is already in
existence and that addresses the immediate needs of low-income families:
the Massachusetts Rental Voucher Program.
* Candidate for Juris Doctor, New England Law | Boston (2012). B.A., Public Policy
and Social Change, magna cum laude, Bentley College (2005). I would like to thank Brian
Flaherty, Nancy E. Letendre, Mark Bobrowski, and the Law Review staff for their research
assistance. I would also like to recognize the unwavering support from my spouse, Alex
Baquerizo, and my parents Kevin (`81) and Melanie Barber throughout the writing process.
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INTRODUCTION
magine you are a single mother of two, living in a state-subsidized

shelter program in Massachusetts. 1 You return home from a
meeting at the career center and knock on the neighbors door to
pick up your daughters, Nina, age two, and Michelle, four-and-a-half.2
Nina and Michelle are hungry. However, when you walk into the motel
room the state has placed your family in, because all of the traditional
shelter programs are full, you remember the room has only a dormitorysized fridge and a broken hotplate instead of a stove. You feed your girls
cold sandwiches and juice, praying that tomorrow your situation will
improve.
The next morning you have an interview at a local grocery store. When
you get the job you are thrilled and think this will be what you need to get
out of the shelter. But after three months of part-time, minimum-wage
work; paying your neighbor $50 per week to watch Nina and Michelle
when they are not in Head Start;3 buying groceries when your food stamps
run out; and treating your family to a hot meal at a fast food restaurant
once a week; you only have $732, and this is not even enough for the
security deposit on a market-rate unit.4 You have applied with every
housing authority in a fifty-mile radius for housing, but you are
disappointed to learn that many lists are closed and that many families in
Emergency shelter for families is mandated in Massachusetts; the Department of

Housing and Community Development (DHCD) finances shelter programs while private
non-profit organizations operate them. See generally Emergency Assistance Program, EXECUTIVE
OFF. HEALTH & HUM. SERVICES, http://www.mass.gov/dta/shelter (last visited Oct. 28, 2011).
1
2 The following narrative is a composite of the authors interaction with several

homeless families in her capacity as an employee for a homeless services organization. The
narrative is provided for illustrative purposes only and any similarity to real persons names
or identities is purely coincidental.
3 Head Start is a federally funded preschool program for low to moderate income
children; many of the families that are unable to obtain affordable homes also struggle with
child care and food expenses. See About the Office of Head Start, U.S. DEPT HEALTH & HUM.
SERVICES, http://www.acf.hhs.gov/programs/ohs/about/index.html#prog_desc (last visited
Oct. 28, 2011).
4 See, e.g., KINSEY ALDEN DINAN ET AL., LOW-INCOME FAMILIES IN MASSACHUSETTS:
RESULTS FROM THE FAMILY RESOURCE SIMULATOR 1-2 (2004), available at http://
www.nccp.org/publications/pdf/text_580.pdf (providing scenarios where low-wage workers
like the woman in this illustration are unable to afford housing for their families). The
Massachusetts minimum wage is $8.00 an hour; working twenty hours per week for three
months you would gross approximately $1920. After expenses and payroll taxes, your savings
would be minimal. See Minimum Wage Laws in the States - January 1, 2011, U.S. DEPT OF LAB.,
WAGE & HOUR DIVISION, http://www.dol.gov/whd/minwage/america.htm#Massachusetts (last
visited Oct. 28, 2011).
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your situation wait months or years for a unit to become available. 5

When you read a newspaper article stating that it costs Massachusetts
taxpayers $2.8 million per month to shelter 1010 families in temporary
facilities, you realize this means the state is paying $2772 per month for
your motel room with the broken hotplate.6 You wonder, why the state
does not put this money into a subsidy program and pay for two families
your size to each rent a two-bedroom apartment in your community? Or
better yet, why the state could not provide initial financing for a multifamily, mixed income development where the property owners profits
from market-rate rents would subsidize a portion of your rent, while you
pay the remainder from your part-time job?7
The easy response to your questions is that the state could provide you
with a voucher or a subsidy and could remove housing barriers to assist
you.8 The harder question is why the state chooses not to take this path.
This is an extremely politicized issue but it all boils down to one point:
Creating affordable housing9 requires political will.10 In an effort to
5 See, e.g., Frequently Asked Questions, BROOKLINE HOUSING AUTHORITY, http://
www.brooklinehousing.org/faq.html (last visited Oct. 28, 2011) (advising prospective
applicants that the wait list for one, two, and three bedroom apartments is currently closed
and that the wait time for a subsidized unit may be lengthy).
6
Jenifer B. McKim, Homeless Use of Motels Still on Rise, BOS. GLOBE, Sept. 16, 2009, at B7.
Sam Stonefield, Affordable Housing in Suburbia: The Importance but Limited Power and
Effectiveness of the State Override Tool, 22 W. NEW ENG. L. REV. 323, 335 (2001) (describing the
zoning only approach to achieving affordable housing whereby the developer uses a
portion of increased income from the density bonus to subsidize the below-market-rate
affordable units in the property).
8 See, e.g., 1 MICHAEL K. MURRAY & ALEXANDER A. RANDALL, MASSACHUSETTS ZONING
MANUAL 3.1 (Martin R. Healy ed., 4th ed. 2007) (recognizing the inherent politics in zoning
modifications by stating [i]t may fairly be said that the formula for enacting or amending a
zoning ordinance or bylaw is one part procedure to nine parts politics); Massachusetts Rental
Voucher Program Fact Sheet, HOUSING SOLUTIONS CAMPAIGN (Feb. 12, 2009),
http://
www.homesforfamilies.org/Policy_Corner/MRVPfactSheetFY10%20final.pdf
[hereinafter
MRVP Fact Sheet] (demonstrating the capacity of the State to offer vouchers for extremely lowincome families).
7
9 Housing is affordable when a household pays no more than 30% of its annual income
on housing. Affordable Housing, U.S. DEPT HOUSING & URB. DEV. (Sept. 13, 2011), http://
www.hud.gov/offices/cpd/affordablehousing/. An estimated 12 million renter and
homeowner households now pay more then [sic] 50 percent of their annual incomes for
housing, and a family with one full-time worker earning the minimum wage cannot afford the
local fair-market rent for a two-bedroom apartment anywhere in the United States. Id.
10 See, e.g., MURRAY & RANDALL, supra note 8 (explaining the real challenge for a zoning
lawyer is mastering the political process); see also Craig Charney, Political Will: What is it? How
is it Measured?, CHARNEY RESEARCH, 2 (May 2009), http://www.charneyresearch.com/
pdf/09May5_Charney_Newsletter_Political_Will.pdf (defining political will as the
combination of three factors: opinion plus intensity plus salience). In order to build political
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understand the politics of housing in Massachusetts, this Note will explore

Rhode Islands model as an avenue for reform in Massachusetts.11
Part I of this Note will take an in-depth look at developing multifamily mixed income housing and explain why the Massachusetts
Affordable Housing Law (40B) is absolutely critical to this process. Part
II will describe Rhode Islands Low and Moderate Income Housing Law.
Rhode Island in recent years has become a model example for reform as it
has increased affordable housing options while still placing great emphasis
on local planning and the needs of local communities. Part III will compare
the Massachusetts law with its neighbor, Rhode Island. Part IV will debunk
the arguments brought forth by the recent ballot initiative question aimed
at repealing 40B and will explain why now, more than ever, it is imperative
we preserve 40B. Part V will posit that the 40R smart growth movement
is a step in the right direction but that its incentive payment system is
flawed. This Note will suggest that land use and zoning modifications will
not solve the affordable-housing crisis alone and that any attempt at
improving Massachusettss housing situation must also include a safety net
for the states poorest residents. Accordingly, it will advocate for shifting
state resources that are tied up in incentive payments made to
municipalities to a program that is already in existence and that addresses
the immediate needs of low-income families: the Massachusetts Rental
Voucher Program.12
I.
Affordable Housing Development in Massachusetts: The Affordable

Housing Law, 40B
A. The Creation of 40B Was the Legislative Response to the Lack of
Affordable Housing.
In 1969, Massachusetts crafted the first legislative response in the

nation to address the lack of affordable housing in *a+n Act Providing for
. . . Low and Moderate Income Housing. 13 Commonly referred to as 40B
will around an objective such as the provision of affordable housing, the public must have an
opinion, that opinion must be strongly held, and it has to be conspicuously heralded to others.
See id.
11
See infra Part III.

See MRVP Fact Sheet, supra note 8. MRVP helps bridge the gap for low-wage earning
workers by using a voucher to pay a portion of the family or individuals rent so that the rent
becomes affordable. See id.
12
13 1969 Mass. Acts 774 (codified as amended at MASS. GEN. LAWS ch. 40B, 20-23
(2008)); see Sharon Perlman Krefetz, The Impact and Evolution of the Massachusetts Comprehensive
Permit and Zoning Appeals Act: Thirty Years of Experience with a State Legislative Effort to
Overcome Exclusionary Zoning, 22 W. NEW ENG. L. REV. 381, 382 & n.4 (2001). Prior to
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for its location in the Massachusetts General Laws, this law was ahead of
the curve in many respects, as other states such as New Jersey and Rhode
Island did not promulgate affordable housing laws until 1985 and 1991,
respectively.14 The first national response to discriminatory barriers to
affordable housing was not reported by the Federal Department of
Housing and Urban Development (HUD) to the President until 1991.15
The purpose of 40B was to decrease the impact of exclusionary zoning16 on
affordable housing development and to increase the overall number of
affordable units in all Massachusetts communities.17 In over forty years,
40B has achieved these goals by allowing for more than 1000 developments
with over 56,000 units to be built under the 40B comprehensive permitting
system, 29,000 of which are affordable. 18 In spite of, or perhaps because of
this success, there has been considerable recent opposition to 40B resulting
in the 2010 ballot-initiative question aimed at total repeal of the Affordable
Housing Law.19 In light of the recent failure of the ballot initiative aimed at
repealing 40B, this Note will explore reasons for reform, not repeal, of 40B.
enactment, the statute was referred to as the Anti-Snob Zoning Law as it aimed to eliminate
the snob or exclusionary zoning that prevented low and moderate income families from
renting or buying in the suburbs. See Krefetz, supra, at 382 n.3.
14 N.J. STAT. ANN. 52:27D-301 to -329 (West 2010); R.I. GEN. LAWS 45-53-1 to -9
(2009).
15
See Krefetz, supra note 13, at 382-83 & n.8.

Exclusionary zoning was declared constitutional in 1926 when the Court held that it
was within the municipalitys police power to create a comprehensive zoning plan, under
which some areas of the city would be designated for single family homes while excluding all
other uses for land, others for industry, and others for commercial activities. See Vill. of Euclid
v. Ambler Realty Co., 272 U.S. 365, 393-97 (1926). The impact of this decision is that
municipalities create zoning regulations that effectively exclude certain uses, such as multifamily dwellings or apartment complexes. See generally Peter W. Salsich, Jr., Toward a Policy of
Heterogeneity: Overcoming a Long History of Socioeconomic Segregation in Housing, 42 WAKE
FOREST L. REV. 459, 459-65 (2007).
17 See, e.g., Krefetz, supra note 13, at 386-88.
18 The Fact Sheet on 40B - The States Affordable Housing Zoning Law, CITIZENS HOUS. &
PLANNING ASSN (Oct. 2009), http://www.chapa.org/pdf/40BFactSheetOctober2009.pdf.
16
19 Question 2: Law Proposed by Initiative Petition - Comprehensive Permits for Low- or

Moderate- Income Housing, ELECTIONS DIV., WILLIAM FRANCIS GALVIN, SECY OF THE
COMMONWEALTH, http://www.sec.state.ma.us/ele/elepip10/pip102.htm (last visited Oct. 28,
2011); see infra Part IV.A.
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B. There Are Several Zoning and Local Concerns Common to Housing

Development.
1.
Development Without the Comprehensive Permit
Developers of market-rate housing, industrial buildings, and offices

in effect anything that is not affordable housingare subject to a wide
variety of local regulations before they can get the green light for
construction.20 The problem with local ordinances and regulatory barriers
is that they often stymie development and stunt growth. 21 When a
developer cannot qualify for a comprehensive permit, the project will incur
significant costs in the pre-development stage where increases of 20-35%
in housing prices . . . are not uncommon.22 Often, the additional 20% to
35% markup incurred because of local zoning requirements means that
some construction projects will become economically infeasible and will
not come to fruition.23
Local government regulations include ordinances setting minimum
structure sizes and mandating low-density in residential settings.24 For
example, many of our nations suburbs prohibit housing development in
excess of ten units per acre, although high-quality housing located in more
urban areas exceed thirty-five units per acre.25 A developer of market-rate
units is subject to the ten units per acre ordinance and will be unable to
build a high-density apartment complex in a suburban neighborhood.
However, a qualified developer26 under 40B will be able to bypass this
20 A typical project without a comprehensive permit will require application with
several different agencies to obtain sewage, plumbing and gas, water, electricity, earth
removal, building, and other permits for project completion. See, e.g., Building Application Fees,
TOWN OF STOUGHTON (June 1, 2009), http://www.stoughton-ma.gov/Building/
BuildingDocs/BldgFee.pdf.
21 Long delays are commonplace with proposals for affordable housing development;
40B attempts to hasten the process by granting comprehensive permits to qualified projects.
See MARK BOBROWSKI, HANDBOOK OF MASSACHUSETTS LAND USE AND PLANNING LAW 18.01
(2d ed. 2002) (The statute prescribes streamlined procedure for the issuance of
comprehensive permits.).
22 JANE M. SWIFT, OVERCOMING BARRIERS TO HOUSING DEVELOPMENT IN MASSACHUSETTS
4 (2001), available at http://www.pioneerinstitute.org/pdf/bgc01_swift.pdf.
23 Mitigating Risk, ENTER. CMTY. PARTNERS, 1 (2001), http://www.practitioner
resources.org/showdoc.html?id=19646&topic=Housing%20Development%20Process&doctype
=Spreadsheet (Pre-construction overruns often stem from a lack of understanding of the
many steps needed to finance and permit a project . . . .).
24 SWIFT, supra note 22, at 4.
25 Id.
26 See Werner Lohe, History and Overview of Housing Appeals Committee (HAC), in
OBTAINING COMPREHENSIVE PERMITS: LEGAL AND PRACTICAL ADVICE FOR BUILDING AN
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same ordinance in order to build the exact same complex, provided he or

she allots a minimum 25% of the units for affordable purposes.27 This is the
impact of 40B: to promote development of affordable housing, even if the
proposed development directly conflicts with local laws. 28
The 40B law offers two chief benefits for qualified developers. First, it
allows the developer to streamline the pre-development process by
obtaining a comprehensive permit in lieu of multiple local board permits. 29
Second, it authorizes a state override of local zoning conditions when these
conditions are not consistent with local needs. 30 Before offering
suggestions for reform, this Note will first explain how these two chief
benefits currently operate.
2.
The Procedural Aspects of Obtaining a Comprehensive

Permit (CP)
Local zoning boards, replete with local politics, are a developers

nightmare.31 Conversely, CPs are a developers dream.32 In order to qualify
for a CP, the developer must be a public agency, limited dividend, or
nonprofit organization proposing to build low or moderate income
housing.33
AFFORDABLE HOUSING PROJECT 1, 9-10 (MCLE, Inc. 2002) [hereinafter OBTAINING

COMPREHENSIVE PERMITS] (listing three jurisdictional requirements to qualify for a
comprehensive permit: (1) the developer must be a public agency; (2) the project must be
fundable under a state or federal low or moderate income housing program; and (3) the
developer must control the site).
27
Id. at 28.
See Kara L. Dardeno, Chapter 40B Should Buy the Farm, 42 SUFFOLK U. L. REV. 129, 131
(2008). The same project could not be developed as of right because zoning law would
restrict the type and density of the housing proposed, but the legislature recognized the
importance of allowing an override tool for developments that could serve the public purpose
of increasing affordable housing. Id.
29 See infra notes 40-41 and accompanying text.
30 MASSACHUSETTS ZONING MANUAL 5.3.1(c) (Martin R. Healy ed., 5th ed., MCLE, Inc.
2010) [hereinafter MASS. ZONING MANUAL].
28
31 See supra notes 20-23 and accompanying text. But see Jerry L. Anderson & Erin Sass, Is
the Wheel Unbalanced? A Study of Bias on Zoning Boards, 36 URB. LAW. 447, 474-75 (2004)
(suggesting that boards are typically weighted toward white-collar interests and that there is
some development bias on most boards).
32
33
See supra notes 26-28 and accompanying text.

OBTAINING COMPREHENSIVE PERMITS, supra note 26, at 29.
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The Housing Appeals Committee (HAC)34 decision in Stuborn Ltd.

Partnership v. Barnstable Board of Appeals35 clarified the three fundamental
criteria with respect to housing in order to qualify for a CP: (1) it must be
for occupants whose income does not exceed 80% of the median income as
defined by the Metropolitan Statistical Area;36 (2) while not all units need
be affordable, a minimum of 25% of the units must be for families at 80%
of median income;37 and (3) the housing must remain affordable for at
least fifteen years (the lock-in period).38 As the opinion explains, these
minimum requirements, while not mandated in the statute or regulations,
have been generally accepted as an integral part of the comprehensive
permit system.39
If the developer believes both her company and her project qualifies,
the developer will go directly to the municipalitys local Zoning Board of
Appeals (ZBA) and request a CP that will allow her project to bypass all
of the various local agencies or officials that would otherwise have the
ability to impose restrictions on her proposed development.40 If granted,
operating under a CP will save enormous amounts of time and money, as
the ZBA will provide one centralized review of the project proposal with
the capability to act on behalf of all local boards to grant any permit
necessary for construction.41
Once an application for a CP is filed, the ZBA must schedule a public
hearing within thirty days and must announce a decision, based on
majority vote, within forty days of the hearing. 42 The ZBA can respond in
34 HAC, the administrative review board that handles all appeals by aggrieved
developers, is located within the DHCD, the state agency charged with the provision of safe,
decent affordable housing opportunities. Exec. Office of Hous. & Econ. Dev., Department of
Housing and Community Development, MASS.GOV, http://www.mass.gov/hed/economic/
eohed/dhcd/ (last visited Oct. 28, 2011) [hereinafter DHCD Website].
35 1 MHACR 599 (1999).
36 Id. at 601. Fair market rents (FMR) are available on the Housing and Urban
Development Website; for example, in Boston the FMR for the 2011 fiscal year was $1349 for a
two-bedroom apartment. Final FY 2011 Fair Market Documentation System, HOUSING & URB.
DEV., http://www.huduser.org/portal/datasets/fmr/fmrs/docsys.html&data=fmr11 (last visited
Oct. 28, 2011).
37 Stuborn, 1 MHACR at 601. Alternatively, a developer can set aside only 20% of the
housing for affordable purposes if it is available to renters or buyers at 50% or less of the Area
Median Income (AMI). Id. at 601 n.7.
38 Id. at 601.
39 Id. at 601 n.8.
40 MASS. ZONING MANUAL, supra note 30, 5.3.
41 See id. 5.3.2 (explaining developer may use this single application in lieu of separate
applications); see also Building Application Fees, supra note 20.
42
MASS. ZONING MANUAL, supra note 30, 5.3.2.
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one of three ways: (1) grant the permit unconditionally; (2) grant the permit
with conditions; or (3) deny the permit.43
Often the developers zeal to obtain a CP is matched by the equally
powerful force of a private-property owners determination to ensure that
the developer is met with a denial.44 In recognizing the competing interests,
the legislature has allowed for multiple forums for review of the ZBA
decision.45 An unsuccessful applicant can appeal a straight denial or
conditions attached to a permit to the HAC, a state administrative review
board housed within the Department of Housing and Community
Development (DHCD).46 Any person with standing wishing to challenge
the grant of a CP can appeal directly to the courts, arguably a more neutral
location for review, as the courts are not charged with the responsibility of
creating affordable housing.47 The HAC operates under a de novo standard
of review while the courts act in their appellate capacity and only overturn
the ZBA when the grant of the permit was clearly erroneous.48 The
administrative review process gives the HAC the most control in
determining whether a permit will issue, as courts are required to grant
deference to agency decisions.49
43
Id.
Compare Coal. to Repeal Chapter 40B, Affordable Housing Now: Support Real Affordable
HousingVote
Yes
to
Repeal
40B,
AFFORDABLE
HOUSING
NOW,
http://
www.affordablehousingnow.org/news.htm#3 (last visited Oct. 19, 2011) (People are finally
catching on to the fact that 40B builds mostly unaffordable homes while doing nothing to help
our affordable housing crisis.), with Colleen M. Sullivan, 40B Vote Both Heartens and Hardens:
Multifamily, Mixed-Use Developments May Get Boost After Repeal Failure, BANKER & TRADESMAN
(Nov. 8, 2010), http://www.riemerlaw.com/media/139099/110810_vaughan_ 408%20vote%
20both%20heartens%20and%20hardens_banker%20and%20tradesman.pdf (The law is a
crucial tool for building workforce housing, argued Mark Vaughan, a senior partner at Boston
law firm, Riemer & Braunstein, who represents developers seeking permits.).
44
45 See MASS. ZONING MANUAL, supra note 30, 5.3 (demonstrating multiple outlets for
appealing board decisions).
46 Id.; see DHDC Website, supra note 34.
47 See MASS. ZONING MANUAL, supra note 30, 5.4.2.
48 Id.
49 MASS. GEN. LAWS ch. 30A, 14(7) (2008) (explaining that the court may set aside or
modify the decision [of the agency] . . . if it determines that the substantial rights of any party
may have been prejudiced because the agency decision is constitutionally unsound, arbitrary
and capricious, based on an error of law, or unsupported by the facts, among other factors,
and these factors require granting deference to agency adjudications).
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C. Review at the HAC: Was the Decision to Deny a Comprehensive

Permit Consistent with Local Needs?
The statute defines whether a proposed development will be consistent
with local needs.50 Rather than leave the decision to the suburban towns,
which consistently voted against any form of affordable housing, 51 the
drafters of the law established a statutory framework for determining
when the granting of a CP for affordable housing would be in the best
interests of the community.52 In its current form, 40B establishes a complete
defense for any ZBA in its decision to deny a CP as long as one of three
conditions is met.53 The first condition is the 10% affordable-housing
mandate.54 If the town has already produced 10% of its total housing stock
as affordable, the HAC cannot overturn the decision of the local zoning
board denying the issuance of a CP as not consistent with local needs.55
The second condition is premised on the percentage of land occupied by
low or moderate income housing. Namely the ZBA can protect its decision
to deny a permit if 1.5% or more of total land is zoned for residential,
commercial, and industrial use.56 The last defense protects the town from
having to absorb excess amounts of housing development in one calendar
year.57 If issuing the permit would result in the commencement of
construction of low or moderate income housing on sites comprising
more than three-tenths of one percent of such land area or ten acres,
whichever is larger, in any one calendar year, the ZBAs restriction will be
considered consistent with local needs.58
In sum, if the municipality can meet any of the three requirements
total number of units, total land space, or total number of developments in
one calendar yearit is entitled to reject a developers proposal for a CP,
50
See MASS. ZONING MANUAL, supra note 30, 5.4.2.

See Stonefield, supra note 7, at 343 n.68 (relating findings from a 1974 study indicating
the importance of state directives as demonstrated by the fact that although incentives were
available, only one town voluntarily adopted a multi-family affordable housing development,
and that decision was motivated by the desire to gain a grant to improve the towns water
supply).
51
52
See infra notes 53-56.

See MASS. ZONING MANUAL, supra note 30, 5.4.2.
54 MASS. GEN. LAWS ch. 40B, 20 (Requirements or regulations shall be consistent with
local needs when imposed by a board of zoning appeals after comprehensive hearing in a city
or town where (1) low or moderate income housing exists which is in excess of ten per cent of
the *existing+ housing.).
53
55
56
57
58
See id.
Id.
See id.
MASS. ZONING MANUAL, supra note 30, 5.4.2.
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and the HAC must honor that decision as consistent with local needs. 59
While the framework appears to set a 10% minimum quota for
affordable housing in all communities, both the HAC and the Supreme
Judicial Court determined that cities and towns can count all units
including those rented or sold at market ratein developments that were
built with a 40B CP towards the statutory minimum. 60 This has the
practical effect of allowing cities and towns to block much-needed
developments by asserting that their community already has 10%
affordable housing, when in reality the affordable-housing count can be as
low as a mere 2.5% of total housing.61 In 2005 to 2009, there were 2,465,654
families living in Massachusetts, approximately 10% of which were living
below the federal poverty threshold.62 Even without considering moderate
income families that also desperately need affordable housing, the current
levels of housing production are inadequate to meet the need. A change in
the law that would require counting only affordable units would produce a
true 10% of homes that are affordable for low to moderate wage-earning
families.63
Although the calculation of the 10% is troublesome for practical
reasons, it is undoubtedly a political necessity, at least for the time being. 64
About fifty cities and towns are above the 10% threshold giving them the
ability to reject 40B projects, and another forty are above 8%, many
winning moratoriums because of their progress. 65 Any effort to change the
calculation method to only count units that are actually affordable would
59
Cnty. Dev. Co. of Billerica, 1 MHACR 88, 89 (1974) (If the town has met any one of
these mathematical criteria, the *ZBAs+ denial meets the statutory definition as consistent
with local needs and HAC cannot overturn it.). Even if none of the criteria are met, HAC can
still overturn a ZBAs denial of a CP if after examining the regional need for low and
moderate income housing and weighing this need against health and safety considerations,
statutory requirements for good site and building design, and the need for open space, it
determines that the need for affordable housing is greater. Id.
60 MASS. ZONING MANUAL, supra note 30, 5.4.1(e) (citing Zoning Bd. of Appeals of
Wellesley v. Hous. Appeals Comm., 433 N.E.2d 873, 878 n.7 (Mass. 1982)).
61 See id. The regulations require a 40B applicant to reserve 25% of units for affordable
housing; the remaining 75% can be rented or sold at the prevailing fair market rate, yet market
rate units are still counted towards the 10% minimum. See id.
62 State and County QuickFacts - Massachusetts, U.S. CENSUS BUREAU, http://
quickfacts.census.gov/qfd/states/25000.html (last visited Oct. 28, 2011).
63 See, e.g., DINAN, supra note 4, at 1-2 (demonstrating that market rate rental units are
truly inaccessible for families earning incomes at or below the poverty level).
64 Cities and towns can reject CP applications if they meet the 10% minimum threshold.
Without this carrot there would be considerably more opposition to the law. See, e.g., Jon
Chesto, Voters May Have Say on Already-Shrinking 40B Efforts, THE PATRIOT LEDGER, Mar. 20,
2010, at 21.
65
Id.
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likely move every community in the state out of the safe harbor and
open to the threat of revamped 40B proposals.66 This would surely
reignite the movement for repeal of the law from all communities,
essentially ensuring that 40B would be overturned at the next election.67
Considering the political necessity to allow cities and towns to inflate
their affordable-housing unit count, housing advocates should examine
other possible ways to provide more housing opportunities, such as
mandating comprehensive planning and producing additional subsidies
for the poorest families in our communities.68
II. Affordable Housing Development in a Plan State
A. The Difference a Plan Makes in Rhode Island
Rhode Island is known as a plan state, meaning that each municipality
is required to create and adopt a comprehensive plan to address land use
at a macro level by taking the need for housing, the environment, and the
fiscal impact of development into consideration. 69 The idea for statemandated planning began in California in 1927 when state legislators
became concerned with the need to plan for rapid growth.70 Since that time,
California has required local governments to institute comprehensive
development planning.71 However, in California, the state legislature does
not possess the direct ability to sanction local governments that fail to
plan.72 Instead, California leaves enforcement to the discretion of the courts
by way of reviewing plans for substantial compliance with the states
planning act.73 As such, only the courts can react by issuing injunctions
against further development if the existing plan is inadequate for the
66 See Christine Wallgren, Housing Law Changes Dont Appease Towns: Locals Say 40B Will
Still Favor Builders, BOS. GLOBE, Dec. 9, 2007, at S1 (providing an appended chart that indicates
the highest percentage of units considered affordable in any community is the City of
Brockton at 12.8%; even assuming all 40B projects in Brockton voluntarily chose to allocate
50% of the units for low-income occupants, the citys count under a true 10% formula would
drop to 6.4%, and it would be vulnerable to new CP proposals).
67 See infra Part IV.A (discussing the arguments for repeal).
68 See infra Parts III.A.2, V.A-B.
69 See Jonathan Witten, Adult Supervision Required: The Commonwealth of Massachusetts's
Reckless Adventures with Affordable Housing and the Anti-Snob Zoning Act, 35 B.C. ENVTL. AFF. L.
REV. 217, 253 n.140 (2008); see also R.I. GEN. LAWS 45-22.2-2 (2009) (requiring all cities and
towns without a comprehensive plan to adopt one).
70 RAYMOND J. BURBY ET AL., MAKING GOVERNMENTS PLAN: STATE EXPERIMENTS IN
MANAGING LAND USE 28 (1997).
71
72
73
Id. at 29.
Id.
Id.
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137
purpose of prodding the municipality into compliance.74

Rhode Islands legislature also requires each city or town planning
board or commission to make studies and prepare plans for physical,
economic, and social growth and specifically identifies land use and land
use regulation as one of the components of the plan.75 However, Rhode
Islands legislature has taken the additional step to authorize the states
Department of Administration, Division of Planning to oversee the
development of local plans by requiring all local plans to follow the state
guide plan.76 In order to enforce local planning, the states Department of
Administrationnot the courtshas the power to issue sanctions against
municipalities that fail to update their local plans.77 Sanctions can include
withholding Community Development Block Grant funding, a significant
funding source for municipalities.78 As a result, Rhode Islands cities and
towns are active planners with the state spearheading the effort to increase
affordable housing through its Five Year Strategic Housing Plan: 20062010.79
In a plan state, any attempt to alter a zoning ordinance must be
consistent with the plan, or the courts will rule it void and will disallow it.80
This requires cities to develop pursuant to a rational plan, the result being
a more logical and ordered design.81 Part of the benefit of a locally
controlled plan is that municipalities are better able to determine how they
will meet a state-mandated goal, such as the production of 10% affordable
74
Id.
See R.I. GEN. LAWS 45-22.2-7 (2009).
76 See id. 42-11-10(a) (finding that the continued growth and development of the state
presents problems that cannot be met by the cities and towns individually and that require
effective planning by the state; and state and local plans and programs must be properly
coordinated with the planning requirements and programs of the federal government).
77 See E-mail from Nancy E. Letendre, Land Use Attorney, Ursillo, Teitz & Ritch, Ltd., to
author (Feb. 23, 2011, 15:02 EST) (on file with author).
75
78
Id.
See R.I. HOUS. RES. COMMN, RHODE ISLAND FIVE YEAR STRATEGIC HOUSING PLAN 20062010, at 4, 5 (2006) [hereinafter R.I. FIVE YEAR PLAN], available at http://
www.planning.ri.gov/housing/shp06.pdf. The plan suggests that 5000 new affordable units
need to be developed in five years in order to move towards the statewide 10% goal. Id. While
no silver bullet exists for solving the states housing crisis, the plan recommends increasing
state funding and providing planning grants to implement zoning changes that will lead to
increased densities. Id.
79
80 See Daniel J. Curtin, Jr. & Jonathan D. Witten, Windfalls, Wipeouts, Givings, and Takings
in Dramatic Redevelopment Projects: Bargaining for Better Zoning on Density, Views, and Public
Access, 32 B.C. ENVTL. AFF. L. REV. 325, 328-29 (2005).
81 See id. (explaining the process in a plan state ensures bargaining is in accord with a
planning analysis).
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housing units.82
B. Rhode Islands Low and Moderate Income Housing Law
In concert with its comprehensive planning efforts, Rhode Island has
adopted its own affordable-housing law allowing for comprehensive
permits to be issued to developers of affordable housing.83 Under the
statute, any public agency or any nonprofit organization or . . . any
private developer may apply for a permit provided that the proposed
housing will be subsidized by a federal, state, or municipal government
subsidy.84 As originally enacted, the Rhode Island legislature determined
that for-profit developers should be able to utilize the law for the public
purpose of increasing affordable housing.85 However, even in the laws
infancy, towns were being overburdened by an unprecedented volume
and complexity of development applications from private, for-profit
developers.86 As such, the legislature chose to institute a one-year freeze on
applications from the for-profit applicants in an attempt to lessen the
administrative burden placed on local review boards. 87 This provides one
example of a political concession made to affordable-housing opponents in
order to maintain the laws overall viability.88
In order to fully address the realities of urban and suburban
communities, Rhode Island set the statutory minimum requirement of
affordable units at different levels for cities and towns. 89 The legislature
determined that for all urban cities and towns containing 5000 or more
year-round rental units, the local zoning ordinances must reserve at least
15% of the total occupied year-round units for low or moderate income
residents to be consistent with local needs.90 In the case of all other cities
or towns, affordable housing must comprise at least 10% of the total year82 See, e.g., Witten, supra note 69 (citing the Rhode Island comprehensive planning rules
allowing for the state to mandate penalties on municipalities that fail to meet their burden of
affordable development).
83
See R.I. GEN. LAWS 45-53-1 to -4 (2009).

45-53-3(9) (defining low and moderate income housing by naming the permissive
applicants for a comprehensive permit). But see 45-53-4(b)(1)-(2) (imposing a moratorium on
the use of comprehensive permit applications by private, for-profit developers from January
2004 through January 2005).
84
85
See 45-53-3(9) (naming for-profit and limited equity housing cooperatives as eligible
applicants).
86 45-53-4(b)(1)-(2).
87 Id.
88 See generally MASS. ZONING MANUAL, supra note 30, 3.1 (providing practical advice
on negotiating the political process).
89
90
45-53-3(4)(i)-(ii).
43-53-3(4)(i)(A).
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139
round units.91 As such, this statutory minimum required for a community

to preclude review of an application for a CP is 10% in small cities and
suburban areas and 15% in urban cities.92
1.
The Procedural Aspects of the Application and Review

Process
With Massachusettss 40B administrative interpretations and judicial

decisions as its guide, Rhode Island set forth a detailed review procedure
directly in its statutory text.93 By setting forth the standard of review for all
applicable regulatory playersthe local board, the State Housing Appeals
Board (SHAB), and the courtsthe Rhode Island statute provides a
helpful roadmap for potential developers and municipalities.94
First, a developer wishing to utilize the comprehensive permit process
must apply to the local review board in the locality where the housing will
be constructed.95 To eliminate litigation on the issue of what constitutes an
appropriate proposal, the legislature expressed that the procedure is only
available for proposals containing at least 25% low or moderate income
housing96 and specified the submission requirements for a developer. 97 The
benefit to the developer of applying for a CP is that it can bypass many
local ordinances and regulations.98 The law requires that the developer
identify the applicable local ordinances and regulations from which it
requests a waiver and to note the request in the application. 99 The local
regulations can be completely prohibitive, such as an outright ban on
multifamily dwellings in business-zoned districts, or could create
additional hurdles that affordable housing developers may be unable to
surpass, such as a requirement for expensive granite curbing throughout
91
45-53-3(4)(i)(B).
See id.
93 See Krefetz, supra note 13, at 384.
94 Cf. Stuborn Ltd. Pship v. Barnstable Bd. of Appeals, 1 MHACR 599, 601 n.8 (1999)
(noting that in its regulations, both the Massachusetts legislature and HAC failed to give
explicit minimum requirements to be used in the CP review process, leaving HAC to construe
the income, percentage of affordable units, and the lock-in rate factors on a case-by-case
basis).
95 45-53-4(a).
96 See id.
97 These include a letter of eligibility from the applicable funding source; a list of the
specific sections and provisions of applicable local ordinances from which the developer is
seeking relief; timetable for construction; deed restrictions; identification of a long-term
affordability monitoring entity; financial pro-forma; and a land-development plan for either a
major or minor project as the case may be. See 45-53-4(a)(1)(i)-(vii).
92
98
99
See 45-53-4(a)(1)(ii).
Id.
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the development.100
Upon the developers submission to either the zoning board or the
planning board in the proposed community, the board will hold hearings
to address public concerns and questions about the application. 101 The local
board is required to make positive findings, supported by legally
competent evidence on the record [as to whether] . . . [t]he proposed
development is consistent with local needs as identified in the local
comprehensive community plan.102 The Rhode Island legislature also
identified the required findings of fact that the local board must make in
order to grant, deny, or grant with limitations a CP application.103
The section entitled Appeals to state housing appeals board Judicial
review sets forth the procedural mechanisms for review of CP
applications.104 The SHAB is the venue for aggrieved developers to request
a review of the unfavorable disposition of an application.105 SHABs
standard of review is specified in the statutes text and is a standard
administrative review procedure, granting wide discretion to the agencys
findings of fact.106
ANALYSIS
III. Rhode Islands Low and Moderate Income Housing Law: Presenting
Ideas for Reforming Massachusettss 40B
A. The Rhode Island Housing Law Offers Important Benefits When
Compared with the Massachusetts Law.
Rhode Islands Low and Moderate Income Housing Law is almost
identical to its Massachusetts precursor, 40B.107 However, two important
100
See, e.g., E. Bay Cmty. Dev. Corp. v. Zoning Bd. of Review of Barrington, 901 A.2d
1136, 1141 (R.I. 2006) (naming waivers requested from a developer under the Low-Mod
Housing Law that included relief from zoning restrictions, application fees, lot coverage,
parking, and curbing requirements).
101 See 45-53-4(a)(4)(i)-(vi) (elucidating the requirements of public notice, public hearing,
and the standard of review).
102
45-53-4(a)(4)(v)(A).
See 45-53-4(a)(4).
104 See 45-53-5.
105 Any applicant who is denied or whose permit is granted with conditions and
requirements that make the building or operation of the housing infeasible may appeal this
unfavorable disposition to SHAB. Id.
103
106
107
See 45-53-5(a)-(c).
Nancy E. Giorgi, Instructions for Review of Comprehensive Permits Under the Rhode
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141
differences exist: First, Rhode Island explicitly states a preference for units
built to remain affordable for ninety-nine years and provides a minimum
thirty-year affordability restriction;108 and second, Rhode Islands law
places a premium on local planning by granting deference to a citys or
towns approved affordable-housing plan.109 The requirement that at least
two members of the SHAB be from municipal planning departments
demonstrates this deference to local plans.110
1.
The Thirty-Year Affordability Restriction Should Be

Required in Massachusetts.
Massachusetts simply defines low or moderate income housing as

any housing subsidized by the federal or state government . . . whether
built or operated by any public agency or any nonprofit or limited
dividend organization.111 The Massachusetts legislature failed to define
the minimum period of affordability, leaving that determination to the
subsidizing agency.112 While many subsidizing agencies have a minimum
period during which each unit will have to remain affordable, some do
not.113 Accordingly, units built with a loan that does not restrict the length
of affordability could be converted to market rate at any time after
construction is completed.114 If the conversion to market-rate units were to
occur, not only would 40B fail to address its laudable, affordable-housing
purpose, it would also change the character of the community without any
Island Low and Moderate Income Housing Act, R.I. B.J., Jan.-Feb. 2004, at 7, 7. Compare MASS. GEN.
LAWS ch. 40B, 21-23 (2008) (naming the Housing Appeals Committee as the reviewing body
in Massachusetts), with R.I. GEN. LAWS 45-53-4(a)(viii) (naming the State Housing Appeals
Board as the reviewing body in Rhode Island).
108 See R.I. GEN. LAWS 45-53-3(9).
109 See ROLAND F. CHASE, RHODE ISLAND ZONING HANDBOOK 79, at 108-09 (2d ed. 2006);
see also 45-53-4(a)(4)(vii)(A).
110
See 45-53-7.
MASS. GEN. LAWS ch. 40B, 20.
112 HUD and the Massachusetts Housing Finance Agency are examples of subsidizing
agencies. See MASS. ZONING MANUAL, supra note 30, 5.4.1.
111
113 The Federal Home Loan Bank of Boston was deemed a subsidizing agency in
Stuborn Ltd. Partnership v. Barnstable Board of Appeals, 1 MHACR 599, 599 (1999). See generally
Bank Facts, FED. HOME LOAN BANK OF BOS., http://www.fhlbboston.com/aboutus/thebank/
08_01_02_bank_facts.jsp (last visited Oct. 28, 2011) (offering below-market-rate
predevelopment loans and mortgage loans for affordable housing development which are not
time-restricted).
114 See, e.g., Robert Engler, An Inclusionary Housing Case Study: Newton, Massachusetts, in 2
NATL HOUS. CONF. AFFORDABLE HOUS. POLY REV., INCLUSIONARY ZONING: LESSONS LEARNED
IN
MASS.
18,
19
(2002),
available
at
http://www.nhc.org/media/documents/
IZ_lessons_in_MA.pdf.
142
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public purpose.115 The absence of a minimum period of affordability has

resulted in precisely this effect: For-profit developers are able to bypass
local zoning regulations such as minimum lot sizes, density, and setbacks
to get an expedited issuance of a CP solely because they agree to make at
least 20% of their units affordable.116 However, when market forces are
allowed to dictate, the subsequent purchaser of the building may convert
the affordable units to market-rate units in order to increase profits.117
The expiration of affordability is already occurring in communities
such as Newton, where a local inclusionary zoning ordinance produced
225 units of affordable housing in a thirty-year periodthen subsequently
lost more than fifty of these units as affordability restrictions expired and
the for-profit owners chose to convert the units to market-rate rentals.118
The fact that the Massachusetts legislature has been silent on the length of
the affordability restriction has the perverse effect of allowing local zoning
ordinances to be sidestepped for a very limited benefithousing
affordability for only fifteen years. 119 While as a practical matter, many of
the units built pursuant to 40B may remain affordable for greater than
fifteen years because of restrictions from subsidizing agencies,
Massachusetts should still consider amending its law to require a thirtyyear-or-longer minimum restriction to strengthen the promise of affordable
housing.120 An amendment of this type will resound with local officials
who want to see more affordable housing but who are suspicious of
developer intentions and who would prefer to see units affordable in
perpetuity.121
115
See id. (explaining that units with expired use restrictions are converted to market
rate).
116
See Dardeno, supra note 28, at 131.

See, e.g., Engler, supra note 114, at 19.
118 Id.
119 See Benjamin Fierro III, Summary of House and Senate Bills to Amend Chapter 40B, in
OBTAINING COMPREHENSIVE PERMITS, supra note 26, at 131, 136 (listing the text of a proposed
house bill that would have amended the use restriction to no less than forty years and a senate
bill advocating for units to remain affordable in perpetuity to a household whose income is
not greater than 80% of median income).
117
120 See id. But see Archstone Cmtys. Trust v. Woburn Bd. of Appeals, 1 MHACR 696, 707
(2003) (recognizing the policy considerations supporting perpetual affordability for 20% of the
420 units proposed in the Woburn development). Although no minimum period of
affordability is required in the text of the Massachusetts law, it is likely that a town
challenging a developer or subsequent buyers decision to remove the affordability restriction
would prevail, suggesting that the majority of units developed pursuant to 40B will remain
affordable. See id. (citing a recent Supreme Judicial Court decision holding that unless
otherwise expressly agreed to by a town, so long as the project is not in compliance with local
zoning ordinances, it must continue to serve the public interest for which it was authorized).
121
One suburban Town Administrator stated *w+e in Walpole want *the units+ to remain
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143
Rhode Islands Ability to Demand Compliance with

Local Plans Promotes Affordable Development.
The major difference in Rhode Islands law is its focus on local

planning and its deference to the city or towns approved affordable
housing plan.122 If an aggrieved party can prove that the application for a
CP would disturb the goals of the plan, he or she should, in theory, have a
greater chance as compared with the same situation in Massachusetts of
getting the SHAB to overturn the granting of the permit.123 At first this may
appear to be detrimental to affordable housing development. 124 However,
planning can actually build political will in the town to allow for new
development.125 If the reader accepts the premise that cities and towns are
inherently selfish and that they would intentionally exclude certain land
uses and structures, such as affordable housing, he or she will recognize
that a plan to include these uses increases the probability that the land will
be used accordingly.126 Whether local planning will help aggrieved
developers obtain a reversal of a denial for a permit at the SHAB or upon
further appeal to the states supreme court remains largely unanswered, as
more case law will need to be developed regarding this issue.127
Like Rhode Island, Massachusetts law also requires municipalities to
establish a planning board that shall make a master plan of such city or
affordable in perpetuity if youre getting a zoning exemption from the town to build them.
Wallgren, supra note 66.
122 See R.I. GEN. LAWS 45-53-4(a)(4)(vii)(A) (2009); CHASE supra note 109, at 107.
123 See Telephone Interview with David Craven, Law Clerk, Ursillo, Teitz & Ritch, Ltd.
(Jan. 15, 2011). Although some Massachusetts communities have comprehensive building
plans, the Affordable Housing Law grants no consideration to these plans, while Rhode
Islands law directly considers planning. See 45-53-4(a)(4)(vii)(A)-(B) (In reviewing the
comprehensive permit request, the local review board may deny the request . . . [if] the
proposal is inconsistent with the affordable housing plan.).
124 See CITIZENS HOUS. & PLANNING ASSOC., THE FACES OF 40B, at 36-38 (2003), available at
http://www.chapa.org/pdf/Facesof40B.pdf. Chapter 40B has been responsible for the
production of more housing than any other state housing production tool in the
Commonwealth, so any CP denials would likely result in reduced housing production. Id. at
38.
125 See, e.g., Engler, supra note 114, at 18 (opining on a Newton ordinance that
dramatically increased the towns affordable housing stock by capitalizing on resident
support for the local plan).
126
Witten, supra note 69, at 217.

See one of the few Rhode Island Supreme Court cases on this issue for an example.
Hous. Opportunities Corp. v. Zoning Bd. of Review of Johnston, 890 A.2d 445, 450-51 (R.I.
2006) (determining that SHABs decision was based on substantial evidence that the size,
density, and intensity of the proposal was inconsistent with the Comprehensive Plan, in spite
of the fact that development would lead to more affordable housing in that region). See Giorgi,
supra note 107, at 7 (explaining very little case law exists on the topic).
127
144
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town . . . designed to provide a basis for decision-making regarding the

long-term physical development of the municipality.128 However, this
requirement has little practical effect, as there has never been a
requirement in Massachusetts that local zoning relate to the CP. 129 If the
state could require municipalities to actually zone in accordance to the
plan, this would increase the validity of the plan and its chance for
success.130
B. Administrative Agency Review of a Denied Permit Application as an
Alternative to the Court System Is Fundamental to Housing
Development.
Administrative agencies have been granted the power to apply an
existing rule or statute to a set of facts to determine what outcome is
required, much like a court.131 Agency decisions, while subject to judicial
review, have the same force of law as if decided by a court. 132 Significantly,
decisions by the two agencies described belowHAC and SHABare
subject to the arbitrary and capricious standard of review. 133 This
standard gives housing developers the benefit of a deferential review if a
favorable agency decision is appealed to the courts. 134 Both Massachusetts
and Rhode Island allow for an aggrieved applicant to appeal to an
administrative review board.135 While both states begin with an
administrative adjudication, there are two fundamental differencesthe
statutory mandate of the office housing the review board and its
composition.136
128
BOBROWSKI, supra note 21, 12.13.

Id.
130 See Witten, supra note 69, at 228 (*T+he application can be in complete derogation of
any plan or policy adopted by the community.).
129
131 WILLIAM F. FUNK ET AL., ADMINISTRATIVE PROCEDURE AND PRACTICE: PROBLEMS AND
CASES 17 (4th ed. 2010).
132
Id. at 19.
R.I. GEN. LAWS 45-53-5(d)(6) (2009) (stating that [t]he court shall not substitute its
judgment for that of the state housing appeals board as to the weight of the evidence on
questions of fact). The arbitrary and capricious standard instructs a court to affirm a
decision unless the judges can say that the decision is arbitrary. FUNK ET AL., supra note 131,
at 27.
134 FUNK ET AL., supra note 131, at 27 (describing the arbitrary and capricious standard
of review as the most deferential).
133
135 In Massachusetts, DHCD houses the HAC. DHCD Website, supra note 34. In Rhode
Island, the Office of the Secretary of State is home to the SHAB. Housing Appeals Board, Rhode
Island, OFFICE OF THE SECRETARY OF STATE, http://sos.ri.gov/govdirectory/index.php?page
=DetailDeptAgency&eid=420 (last visited Oct. 28, 2011) [hereinafter SHAB WEBSITE].
136
DHCDs mission is to strengthen cities, towns and neighborhoods to enhance the
2011
1.
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145
In Order to Preserve the Integrity of the

Administrative Review, Massachusetts Should Adopt
the Rhode Island Review Boards Structure.
In Massachusetts, the review board is within an agency whose primary

purpose and statutory objective is to create decent, affordable housing.137
Alternatively, Rhode Islands review board is located in a much broader
executive office that addresses the needs of the business community,
elections, and public records.138 While critics of the Massachusetts process
have deemed the administrative review process a farce, 139 Rhode Islands
review board has not attracted the same criticism. 140 Although the
placement of the board should not affect its members from ruling fairly
and objectively on a denial or qualified approval for a CP, politics play an
instrumental role in land use.141 As such, the Massachusetts legislature
should revisit the decision to place its HAC within an agency specifically
charged with the creation of public housing, as this could create a conflict
of interest and an inimical response to any decision by the Committee.142
The composition of the board and its voting process pose an even
greater concern than the placement of the review board. 143 The HAC is
comprised of five members, one of whom is the Chairman. 144 According to
one commentator, *t+he remaining four Committee members, while they
sign decisions rendered by the Committee, do not attend the adjudicatory
hearings and do not vote in a public meeting. Upon information and belief,
opportunities to present arguments before the full Committee have never
quality of life of Massachusetts residents . . . [by promoting] decent affordable housing

opportunities, economic vitality of communities and sound municipal management. DHCD
Website, supra note 34. The Secretary of State is the states third ranking elected official,
following the Governor and Lt. Governor. State law gives the Secretary of State many
different duties. SHAB WEBSITE, supra note 135 (follow About Us hyperlink; then follow
History & Duties hyperlink).
137
See DHCD Website, supra note 34.

See SHAB WEBSITE, supra note 135 (follow About Us hyperlink; then follow History
& Duties hyperlink).
138
139
See Witten, supra note 69, at 228 & n.46.

Rhode Islands Low-Mod Housing Law itself has been subject to some opposition, but
only as to the potential for abusive profits at the hands of developers. See R.I. GEN. LAWS 4553-4(b)(1) (2009). As a result, Rhode Island citizens instituted a moratorium on for-profit
developer applications rather than a complete repeal of the law. See id.
140
141
See MASS. ZONING MANUAL, supra note 30, 5.3.1(c).

One expert calls the HAC process a charade that deceives the public by convincing
them that the government is guarding their interest. Dardeno, supra note 28, at 143 & n.125.
143 See Witten, supra note 69, at 228 n.46.
144 Id. The author suggests the HAC process resembles the Wizard of Oz, presumably
with respect to the Chairmans all-knowing and irrefutable authority. See id.
142
146
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v. 46 | 125
been permitted.145 The Code of Massachusetts Regulations, addressing the

conduct of a HAC hearing, does not state any time limitation for the
Chairman, nor does it recognize any specific requirements for Committee
appointees.146 The current Chairman, Werner Lohe, has only voted to
maintain the municipalitys ZBA decision to deny a CP a dozen times or
so in literally hundreds of appeals by aggrieved developers. 147 HAC
consistently votes against the municipalitys interpretation of whether the
proposed development is consistent with local needs.148
In stark contrast to the Massachusetts system of administrative review,
the Rhode Island legislature provides for a far more balanced process. 149
The Rhode Island SHAB consists of eight members, seven of whom are
voting members with diverse interests, appointed by the governor for
three-year terms.150 Members include four local officials (three voting, one
alternate) (two from small towns and two from cities or towns with a
population greater than 25,000, one of each of the four should represent the
local zoning board, local planning board, a city counsel member, and a
town counsel member); one affordable housing developer; one affordable
housing advocate; one representative of the business community; and one
attorney knowledgeable in land use regulation, who should be chairperson
of the board (all four voting).151 Not only does Rhode Island appoint a
more diverse board, it requires appeals to be heard by the appeals board in
full and for decisions to be based on a majority vote. 152
After considering both states systems of review, it appears that Rhode
Islands board encompasses more characteristics of an impartial forum
better suited to review a CP denial or qualified approval. 153 To be sure, the
adoption of a more varied review board and movement of such board to a
more neutral executive office or administrative agency in Massachusetts
may result in the denial of some CPs. 154 However, this proposed change
has the potential to produce immeasurable soft benefits in the form of
145
Id.
See 760 MASS. CODE REGS. 56.06(7)(e) (2008).
147 Telephone Interview with Mark Bobrowski, Professor of Law, New England Law |
Boston (Nov. 30, 2010) [Hereinafter Telephone Interview].
146
148
See id.
See R.I. GEN. LAWS 45-53-7 (2009) (describing a diverse review board).
150 45-53-7(a)(1), (b).
151 45-53-7(a)(1).
152 See Union Vill. Dev. Assocs. v. Town of N. Smithfield Zoning Bd. of Review, 738 A.2d
1084, 1085 (R.I. 1999); see also 45-53-5(c).
153 See supra Part III.B.1.
154 As it stands, HAC has relentlessly and repeatedly reversed the decision of local ZBAs
in favor of developers. Telephone Interview, supra note 147.
149
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greater acceptance by and support from localities.155 While in the short

term a change in the review process could threaten some CP approvals, the
long-term benefit of ensuring the integrity and credibility of the review
process would help preserve the promise of affordable housing by
protecting 40B in the face of another repeal movement. 156
IV. Recent Attempts to Repeal 40B by Initiative Petition
A. Why the Arguments for Repeal Continue to Fail
On November 2, 2010, voters recognized the necessity of 40B and voted
by a margin of 58% to 42% to retain the law in its current form.157 Although
many commentators have criticized the effectiveness of this law over its
forty-two years of operation,158 there is no evidence that any other
politically viable option would function as a better alternative.159
The recent repeal movement introduced arguments that the vast
majority of 40B units are no longer considered affordable and that
development under 40B has reached exorbitant costs. 160 Under the first
argument, opponents presume that the increase in the housing costs is a
155 This forum would appear much more balanced and would likely appeal to
municipalities that have indicated frustration with the current HAC process. See Wallgren,
supra note 66.
156
Some reasons for opposing 40B include the potential for developers to abuse profit
restrictions and the strong presumption that any proposed development will be consistent
with local needs in spite of a ZBA initial denial of a permit. See Alexander Estates, LLC v.
Billerica Bd. of Appeals, 1 MHACR 886, 886 (2006) (noting that the regulations include a
planned production regulation that results in a temporary safe harbor from unwanted
comprehensive permit developments as an incentive for [towns] to plan for and construct
affordable housing). Arguably, this temporary safe harbor may improve the publics
perception of 40B because it will allow towns to address shortcomings in affordable housing
production on their own terms. See id. at 887 (describing the planned production presumption
as irrebuttable by HAC, meaning that the town would be able to plan where production
could occur within its boundaries).
157 The ballot initiative Question Two garnered 2,155,164 total votes with 1,254,759
(58%) of those voting finding in favor of retaining 40B in its current form. WILLIAM F. GALVIN,
RETURN OF VOTES FOR MASSACHUSETTS STATE ELECTION (Nov. 2, 2010), available at http://
www.sec.state.ma.us/ele/elepdf/rov10.pdf.
158 See, e.g., Mark Bobrowski, The Massachusetts Smart Growth Experience: Chapter 40R, 92
MASS. L. REV. 1, 6 (2009).
159 See, e.g., Dardeno, supra note 28, at 155 (admitting that local governments are unlikely
to utilize 40R absent the prod of 40B, yet still suggesting that 40R would be a sufficient
response without 40B); Witten, supra note 69, 254-55 & nn.141-43 (justifying repeal based on
certain procedural flaws, yet failing to demonstrate how local planning would result in more
low-income people obtaining housing).
160
Coal. to Repeal Chapter 40B, supra note 44.
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result of development under 40B.161 What the opponents fail to explore is

the complete lack of housing that would exist without the Comprehensive
Permit Act.162 They also declined to introduce any alternative to 40B and
simply advocated for its repeal, while explicitly stating that Massachusetts
ranks forty-ninth in national housing unaffordability.163 It is
unconscionable that a group of citizens could align themselves with the
cause of promoting affordable housing, while at the same time advocating
for the repeal of the primary vehicle for affordable housing production in
the state.164
The repeal movements abuse argument, while carrying more merit,
does not justify wholesale repeal of the law.165 A Boston Globe article
covered the story of a 40B proposal for development of a loft apartment
complex on an $800,000 lot that eventually brought in $80 million for the
developer, not the city.166 This occurred because the original propose of the
project was to be able to bypass local ordinances to earn a huge return on
investment (selling the parcel for $5.2 million six days after 40B approval),
and the ultimate builder was able to further increase the density of the
property.167 While this is an unfortunate result and a clear abuse of the
system, it by no means indicates the entire law should be abandoned. 168
One possible solution would be to amend the regulations governing 40B to
restrict companies obtaining a CP under 40B from transferring the property
until after construction has been completed.169 In this way, the property
will represent the true cost of development and will not have any increased
costs associated with inflated land values.170
161
See id.
See id. (lacking any explanation for the assertion that 40B will not produce sufficient
housing).
162
163
See id.
See id. (claiming that the coalition supports affordable housing, but not offering
anything more than criticism of Massachusettss primary production vehicle, 40B).
165 See generally Christine McConville, Whos Profiting?, BOS. GLOBE, May 31, 2007, at
NW1.
164
166
Id.
Id.
168 There is the potential for abuse of many government programs, including statefunded health insurance programs, yet few would suggest this is reason to eliminate these
programs. See, e.g., Teva Settles MassHealth Fraud Lawsuit, BOS. GLOBE, Jan. 6, 2009, at B6.
169 See McConville, supra note 165 (explaining that some cities and towns issue nontransferable permits).
167
170
See id.
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149
B. Why 40B Will Have an Even Stronger Impact on Development

When the Housing Market Recovers
Critics of the states controversial affordable housing law often warn
that it has let loose a flood of projects that threaten the cherished character
of our towns.171 This flood rapidly declined from its peak in 2004, when
134 CP applications were filed, and reached a low of only twenty-eight CP
applications in 2009 and two as of March 2010.172 It is clear that the increase
in cities and towns meeting the 10% mandate, combined with the rapid
decline in the housing market, have greatly contributed to the decrease in
40B applicants; however, the future remains to be seen.173 The one thing
both sides of the debate can agree on is that the use of 40B will regain
steam as the housing market recovers. 174 With an expected increase in
applications, it is imperative that housing advocates work to repair major
points of contention now, in order to preserve 40B for future
development.175
V. The Role of Smart Growth and Subsidy Programs in Affordable
Housing Development in Massachusetts
A. Smart Growth Represents an Important Shift Toward Planned
Development, but the Concept of Incentive Payments for Planning Is
Flawed.
A new movement in land planning in Massachusetts known as smart
growth176 encourages cities and towns to zone for compact residential
units in smart, transit-friendly areas by returning control to municipalities
and offering financial incentives for development. 177 Enacted in 2004, the
state is set to pay out as much as $36.8 million if the recently rezoned areas
in twenty-seven communities are fully built out.178 As of October 2009, 1127
171
Chesto, supra note 64.

Id.
173 See id. (stating the biggest factor in Chapter 40Bs future is the voters).
174 Id.
175 See supra Part III.
176 See MASS. GEN. LAWS ch. 40R, 1 (2004). Smart Growth Zoning and Housing
Production has many benefits, such as making development decisions predictable,
encouraging community and stakeholder collaboration in development decisions, and
emphasizing mixed land uses. Id.
172
177
ANN VERRILLI & JENNIFER RAITT, THE USE OF CHAPTER 40R IN MASSACHUSETTS AS A
TOOL FOR SMART GROWTH AND AFFORDABLE HOUSING PRODUCTION 5 (2009), available at
http://www.macdc.org/research/f_1256847562Chapter40RReport.pdf.
178
See id. at 17, 22-23.
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units were built or scheduled for construction under this provision.179

While it appears that the rezoning efforts under 40R have spurred
development, a Citizens Housing and Planning Association (CHAPA)
report indicates that all but five of the 1127 units were in planning before
the local city or town created the 40R smart growth overlay district.180 This
may have been because cities and towns, faced with the stick of 40B,
were already considering proposals to develop these same sites for
affordable housing.181 This suggests that the $36.8 million the state is
prepared to pay out to municipalities to reward and incentivize the
production of smart growth districts is unnecessary.182 Furthermore, all but
forty-one of the units are additionally supported by a state or federal
subsidy program, meaning that the portion of the 1127 units that are
deemed affordable requires additional funding to actually meet that
benchmark.183
A logical question stems from projects planned under 40R: affordable
for whom?184 While the vast majority of low-income families require a unit
with three or more bedrooms, only 10% of the total planned or constructed
units will be three-bedroom units.185 Moreover, smart growth only
179
Id. at 41.
Id.
181 See Bobrowski, supra note 158, at 6-7. 40R is not focused on developers; instead, it
allows a municipality to establish a smart growth overlay district allowing for higher density
developments near areas of public transit or in another highly suitable location. Id. at 6.
There are many important public purposes served by 40R; however, these same benefits could
be accomplished without the incentive payments if Massachusetts were to mandate that
towns adopt comprehensive plans. See, e.g., E-mail from Nancy E. Letendre, Land Use
Attorney, Ursillo, Teitz & Ritch, Ltd., to author (Feb. 23, 2011, 15:02 EST) (on file with author)
(explaining that the State Plan Guide requires municipalities to adopt comprehensive plans
that conform to the State Plan).
182 Rhode Island does not have, and arguably does not require, a smart growth statute
because localities already plan to produce affordable housing while still keeping the
environmental impact, cost, and the community character in mind. See generally RI FIVE YEAR
PLAN, supra note 79, at 1-5.
183 In some cases, developers are able to bring in great enough returns on market-rate
units in developments that they can fully subsidize non-market-rate units for the minimum
lock in period (ranging from fifteen to thirty years). See Krefetz, supra note 13, at 386-88.
180
184 Chapter 40R bylaws require that at least 20% of the housing units developed within
the 40R-zoned district be affordable, meaning reserved for households with incomes below
80% area-median income for a minimum of thirty years. VERRILLI & RAITT, supra note 177, at
23.
185
Id. at 43 ([T]hree-bedroom units have comprised 5% of the total units or in

construction and about 5% of the units in projects with plan approval but not yet built where
we have information on the planned unit sizes.).
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requires 20% of the total planned units to be affordable.186 As such, no more

than 225 of the units would be affordable, and only twenty-two units
would be suitable for low-income families.187 At a cost of $36.8 million, you
might ask, just whom does this law benefit?
While 40B is controlled at the state level, 40R advocates are more
concerned with home rule and would prefer to see a system where local
officials retain more control over how the local land is used. 188 While Rhode
Island has demonstrated that participation by localities can often lead to
less opposition to affordable developments, the state still retains ultimate
control through its State Guide Plan and its ability to penalize towns that
fail to conform their planning efforts to state mandates by withholding
CDBG funding.189 Alternatively in Massachusetts, 40R can and has resulted
in expensive rezoning efforts by communities, which unfortunately fail to
come to fruition for lack of developer interest.190
B. A Call to Shift the Focusand the Fundingfrom the 40R Trust
Fund to the Massachusetts Rental Voucher Program
Smart growth can be accomplished if Massachusetts follows the
example of Rhode Island by becoming a plan state. 191 Towns already have
an incentive to rezone areas that are close to transportation, in order to
avoid the stick of 40B.192 There is no need to pay cities and towns when
developers can already collect unlimited profits under 40R. 193 If there is
186
MASS. GEN. LAWS ch. 40R, 1 (2004).

Id.
188 See, e.g., Bobrowski, supra note 158, at 6. While the importance of local land control
cannot be underestimated, a state like Rhode Island has the ability to mandate additional
affordable units under its plan, while Massachusetts cannot. Compare R.I. GEN. LAWS 42-1110(a) (2009), with MASS. GEN. LAWS ch. 40R, 1 (2004).
189 40R requires the municipality to approve the site location for the proposed
development. It gives the municipality more ability to reject a proposal. See Bobrowski, supra
note 158, at 6 (listing the required components for an eligible location).
187
190 VERRILLI & RAITT, supra note 177, at 6 (Three districts (Bridgewater, Holyoke and
North Andover) that account for 1400 of the 9780 future zoned units have no developer
interest . . . .).
191
See supra Part II.A.

See Krefetz, supra note 13, at 396 (indicating that local response to CP applications is
largely negative, with only 20% of municipalities granting the permit outright; denying 30%;
and granting just over half with conditions that made the proposals economically infeasible).
193 While unlimited profits for developers and incentive payments for municipalities are
certainly advantages if you view housing production from the eyes of a developer, these
additional costs will not necessarily correlate to greater housing development. See supra text
accompanying note 180. Cf. Bobrowski, supra note 158, at 6-7 (explaining that 40R has two
chief advantages over 40B, one being that while there are no profit limitations on 40R projects,
192
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truly a market purpose behind these new zoning smart growth overlay
districts, the market itself should guide them, not incentive payments from
the state.194 These funds could be better spent assisting families who are
currently struggling to meet high housing costs. The same new
developments that are now touted as 40R success stories could continue to
be built by obtaining comprehensive permits under 40B.195 Towns are not
prohibited from courting developers or suggesting ways that the local
board of review (zoning board of appeals) could expedite the developer
approval process.196
Instead of authorizing an ongoing incentive program for cities and
towns to plan for this type of growth, the state should mandate it.197 If
Massachusetts became a plan state, many of these ideas would naturally
result.198 If funding can be freed by eliminating incentive payments for
rezoning under 40R, the state can reallocate this funding for other housing
purposes.199 In conjunction with any zoning effort, it is imperative that the
state recognizes the need to continue to provide vouchers for the shortterm needs of families.200 If the millions of dollars of funding going to
incentivize planning were shifted to an existing voucher program, it would
40B developers must limit profit to not more than twenty percent of total project
development costs). From the eyes of a housing advocate, allocating funds to rezoning efforts
that may or may not result in actual future development will remove funding from direct
subsidies and vouchers that could assist low-income families now. Compare VERRILLI & RAITT,
supra note 177, at 17 (explaining that the legislature authorized the diversion of up to fifteen
million dollars a year in loan repayments to the Massachusetts Housing Finance Agency
(MassHousing) to fund 40R incentive payments and incentive programs), with MASS. HOUS.
FIN. AGENCY, MASSHOUSING INFORMATION STATEMENT 39 (2011) (noting that in FY 2009 the
Patrick administration requested MassHousing to commit $5 million to fund a portion of
MRVP for that fiscal year). If both 40R and MRVP rely on the public non-profit MassHousing
to make up for state-funding shortfalls, increased 40R contributions will necessarily decrease
MRVP funding. See MASS. HOUS. FIN. AGENCY, What is MassHousing? https://
www.masshousing.com/portal/server.pt (last visited Oct. 28, 2011) (explaining that
MassHousing does not take taxpayer dollars but instead uses debt financing to offset budget
cuts to state housing programs).
194 See MASS. GEN. LAWS ch. 40R, 1 (2008) (stating that 40R makes development
decisions predictable, fair and cost effective).
195 See supra text accompanying notes 179-83.
196 40R has the benefit of expediting the review process, whereby the local approving
authority must hold a hearing and issue a written notice of the decision within 120 days of
receipt of the application by the city or town clerk. See DOUGLAS A. RANDALL & DOUGLAS E.
FRANKLIN, 18A MASSACHUSETTS PRACTICE SERIES: MUNICIPAL LAW AND PRACTICE 17.34, at
292 (5th ed. 2010 & Supp. 2011).
197
198
199
200
See supra Part V.B.

See supra Part III.A.2 (describing Rhode Islands status as a plan state).
See supra note 193 and accompanying text.
MRVP Fact Sheet, supra note 8.
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help alleviate the housing crisis during the recession.201 In order to meet the
housing needs of low-wage earners, the states response must include both
a means for the development of additional affordable units and a subsidy
program to help families rent market-rate units in the interim.
CONCLUSION
Providing affordable housing is a multifaceted, extremely politicized
issue in Massachusetts and throughout the nation. In order for any effort to
meet the housing needs of low and moderate income families and to be
politically viable, it must adequately address local concerns and planning.
Equally important is the requirement of an impartial review of any zoning
modifications or waivers. A well-developed effort will combine land-use
modifications aimed at increasing the housing stock with rental subsidy
programs to reach the states poorest families in the interim. Massachusetts
is capable of improving its housing situation and would be well-advised to
turn to Rhode Island for guidance in reform, not repeal, of its affordable
housing law, 40B.
201 In Brockton, the number of foreclosed or distressed properties per one thousand is
37.7the state's highest. . . . The state average is 13.7. Robert Knox, Foreclosure Crisis Deepens
South of Boston, BOS. GLOBE, Nov. 25, 2010, at S1. While the majority of households require
long-term affordability, voucher programs could assist some low-income residents in the
short-term with the expectation that they can eventually return to market-rate housing. See,
e.g., id.

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Affordable Housing in Massachusetts:

Affordable housing is a deeply contentious issue in Massachusetts and

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New England Law Review

magine you are a single mother of two, living in a state-subsidized

Emergency shelter for families is mandated in Massachusetts; the Department of

2 The following narrative is a composite of the authors interaction with several

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Affordable Housing in Massachusetts

your situation wait months or years for a unit to become available. 5

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New England Law Review

understand the politics of housing in Massachusetts, this Note will explore

Affordable Housing Development in Massachusetts: The Affordable

In 1969, Massachusetts crafted the first legislative response in the

See infra Part III.

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Affordable Housing in Massachusetts

See Krefetz, supra note 13, at 382-83 & n.8.

19 Question 2: Law Proposed by Initiative Petition - Comprehensive Permits for Low- or

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New England Law Review

B. There Are Several Zoning and Local Concerns Common to Housing

Development Without the Comprehensive Permit

Developers of market-rate housing, industrial buildings, and offices

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Affordable Housing in Massachusetts

same ordinance in order to build the exact same complex, provided he or

The Procedural Aspects of Obtaining a Comprehensive

Local zoning boards, replete with local politics, are a developers

AFFORDABLE HOUSING PROJECT 1, 9-10 (MCLE, Inc. 2002) [hereinafter OBTAINING

See supra notes 26-28 and accompanying text.

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New England Law Review

The Housing Appeals Committee (HAC)34 decision in Stuborn Ltd.

MASS. ZONING MANUAL, supra note 30, 5.3.2.

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Affordable Housing in Massachusetts

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C. Review at the HAC: Was the Decision to Deny a Comprehensive

See MASS. ZONING MANUAL, supra note 30, 5.4.2.

See infra notes 53-56.

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Affordable Housing in Massachusetts

purpose of prodding the municipality into compliance.74

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New England Law Review

See R.I. GEN. LAWS 45-53-1 to -4 (2009).

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Affordable Housing in Massachusetts

round units.91 As such, this statutory minimum required for a community

The Procedural Aspects of the Application and Review

With Massachusettss 40B administrative interpretations and judicial

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Affordable Housing in Massachusetts

The Thirty-Year Affordability Restriction Should Be