Click on image to see larger view - Union Square in Franklin, MA

These apartments were transformed from an old mill.

Summary of Chapter 40B

Developers can apply for Comprehensive Permits from the Zoning Board of Appeals instead of going through the normal routes of review by the Planning Board and other town departments as a result of Chapter 40B of the Massachusetts General Laws. By bypassing local regulations, developers can also bypass zoning densities, a major benefit to the developer in wealthier communities. Only a portion of the housing has to be classified as affordable, yet the entire development bypasses local bylaws and regulations. Towns with less than 10% affordable housing are subject to this type of development, and many are now facing multiple applications representing hundreds of units.

What Can Towns Do?

Most communities can agree that affordable housing should be increased in Massachusetts, however, accomplishing it by sidestepping zoning restrictions may have serious impacts on the town's infrastructure and ability to provide services. In some cases it may lead to over allocation of scarce resources such as water supply to a dangerous level. At the least, long term Capital Improvement Plans for meeting the town's needs through buildout may need significant adjustment.

Although many developers might suggest otherwise, there are some controls that towns can apply to reduce the impact on the community. These include state wetlands regulations, stormwater regulations and Title 5 septic system regulations among others. Only specifically local bylaws and regulations can be bypassed, and then only to the extent that they might significantly affect the project's economic feasibility. But many ZBA's do not have the capacity or experience with developments from this angle to effectively shape the project and end up accepting potentially inferior developments. Some ways to improve the situation include:

Assess infrastructure potential impacts
Review the economic calculations for the development for aggressive assumptions
Require permanent affordable status to avoid future problems
Develop a long-term plan to meet affordable housing needs
Require affordable housing as a percentage of all developments so that they will all have to follow the town's bylaws and regulations

How CEI Can Help

CEI has helped dozens of towns with environmental and development issues since its incorporation in 1987. Since we do not work for developers as a general rule, we bring a unique perspective and can work 100% on the community's behalf. CEI has worked both for ZBA's and for Conservation Commissions relating to Chapter 40B developments, and we are particularly strong at bringing together the comments of all departments to assist the ZBA in the Comprehensive Review. Experienced staff with expertise in Chapter 40B include:

Civil Engineers experienced in drainage and familiar with the new federally-mandated Phase II requirements on towns
Community Planners experienced in developing affordable housing plans and in reviewing Chapter 40B plans
Wetlands Scientists experienced in reviewing impacts on wetlands from Chapter 40B developments
Water Supply Specialists experienced in evaluating the impact and in allocating demands to new developments
Landscape Architects familiar with water supply and stormwater issues that can help to minimize the impact on the towns' environment and community character