The Commonwealth has had a longstanding interest in providing affordable housing. The first legislation to address this issue is the famous (or infamous, depending on your point of view) “40B” enacted in 1969 as the Comprehensive Permit Law. Here is the CHAPA (Citizen’s Housing and Planning Association) Fact sheet regarding 40Bs. And, of course, you can go to the Mass.gov website found here to review the Comprehensive Permit Law in detail.

The reason for going into some detail about 40B is that the Planning Board has a very strong preference for 40R and, in its marketing campaign promoting 40R, 40B has become something of an older evil sibling. Our view is that 40Rs can be just as “unfriendly” as “unfriendly” 40Bs - it really is a matter of the developer’s attitude toward the town. Dismissing one to promote the other overlooks the good 40Bs have done providing housing for the elderly and families.

Our Zoning Board of Appeals has been involved in 5 40B applications over the past 15 years, one of which it denied. ZBA’s are provided state assistance to help understand the law and the negotiations so common during the permitting application process. 40Bs and 40Rs are both intended to reduce barriers inhibiting affordable housing development, specifically local zoning and approval processes.

The Zoning Board of Appeals is the permitting authority in the 40B scenario. There are two paths a developer can choose to proceed: negotiating directly with a town (a “LIP” or local initiative project or “friendly” 40B) or going directly to the State should local negotiations fail. Here is a link to the town of Weston’s home page describing its experience with 40Bs. Weston, like Pepperell, is behind in the number of local affordable housing units (subsidized housing inventory, or SHI). Pepperell has built 130 affordable housing units; it needs 60 more units to reach safe harbor status.

The developer receives a letter of site eligibility after the state review. The developer then submits an application to the local Zoning Board of Appeals for a comprehensive permit. The ZBA consults with town boards, commissions, departments and committees soliciting their recommendations. The review process typically involves any number of public hearings during which the ZBA receives Town Counsel advice (and representation, if needed) and public input - especially from abutters. This process can last up to six months; once the public hearing process is closed, the ZBA has 40 days to write its opinion either approving as submitted, approving with conditions (usually reflecting town recommendations), or denying the application. If the application is denied or the developer believes the ZBA has placed unreasonable constraints such that the project is economically unfeasible, the developer can appeal to the State’s Housing Authority if the town is below the 10% affordability threshold (towns with less than 10% of its year-round housing that qualifies as affordable) or less than 1.5% of developed land is dedicated to affordable housing. According to the most recent information we’ve read (2018, CHAPA report) two thirds of appeals that reach the Housing Authority are negotiated and settled.

It is this appeal process to the State that has earned some 40B applications the description of being “hostile.” But 40Bs also allow residents to appeal a ZBA decision if they feel the proposed 40B negatively impacts their community. There are guidelines which stipulate grounds for a successful appeal.

40B has been very successful promoting affordable housing and many towns continue to approve 40B development. Powder Mill Place in Acton is a 40B development (2018-2019) and Groton has just received a major 40B project on the previous NEB property. The project is being called “Groton Farms” and is for 200 units, 50 of which will be affordable housing. The link is to the approval letter from MassHousing so that readers can see what an approval letter looks like.

40R requires a zoning amendment and, therefore, becomes a use-by-right. This is a work-around to “hostile” 40Bs in that it allows towns to focus affordable housing development in specified areas. It does not mean, however, that 40B projects can’t occur in other areas of town outside 40R zoning. And abutter appeal under 40Rs is so financially onerous that it is all but impossible to do. Presumably, this is to prevent “frivolous” appeals but the net effect is to prevent any appeals whatsoever - even for neighboring abutters who may have legitimate concerns regarding the impacts to their neighborhoods.

Here is our crib sheet comparing 40B and 40R. This crib sheet is to get you started; it is not intended to be a final, definitive word on the comparison between the two. It’s out best effort, nothing more.

Our focus is on considering the consequences of a zoning change not just in terms of current specific projects but impacts down the road. It is for this reason we offer a case study of a town that has engaged in a two year long process to study the implications of growth on town services (including schools).

Rutland developed a Growth Management Steering Committee (2017-2019) which produced two reports linked below. Rutland has experienced considerable growth pressures in recent years and early on attempted to pass a Growth Management Bylaw in 2003 but failed to get the 2/3rd majority vote. The Phase 1 Growth Management report notes: “If the bylaw had passed it would have capped the number of building permits issued to 56 per year between 2003 and 2008, with an opportunity to extend the date. The passage of this bylaw would have leveled out the building activity over the years of peak growth, between 2003 and 2007.” See link here for Phase 1 report and Phase 2 presentation as well as other reports initiated by Rutland’s Planning and Community Development.

Rutland’s Zoning Bylaw now includes a Development Rate Limitation Section XIII. It was passed in 2019 as a deliverable of the Growth Management Steering Committee’s work. This bylaw amendment allows the town breathing space to continue with its growth management planning. It has a sunset clause in the section so that it expires in 2024 although the town may choose to extend the development limitation bylaw for another five years.

Pepperell has a Development Rate Limitation section in its Zoning Bylaw as well: Section 3600. That section is now blank, as it had a sunset clause in 2005 and it was never extended. We will provide more background information on this Section as soon as we can.

Finally, the Cape Cod Regional Planning Council (2019) has an extensive report regarding growth concerns for Barnstable County. Both Provincetown and Barnstable have growth management bylaws which can be found here and here.

In sum, it is not whether you think 40R is better than 40B. These laws and their regulations are tools the State uses to expand affordable housing around the Commonwealth. Towns are grappling with how to manage growth in a sustainable way. It’s a conversation we, in Pepperell, need to have - and we need to have sufficient time to have it.

We conclude with this quote from Barnstable’s bylaw linked above: “The rate of residential development in Barnstable is determined by and should not exceed the ability of the Town to provide adequate infrastructure and to protect the natural environment. In addition, this development rate is intended to further the legitimate commonwealth and local interests in the provision of a fair share of housing that is affordable to persons with both low and moderate incomes. This development rate will also guard against potential increases in the growth rate, which could adversely affect the Town's environmental resources, economy and land values.”