Getting up to speed on the 40B Process
By Gregory T. Federspiel
At this past Monday’s land management “summit”, where the various land management boards, the Selectmen and the Finance Committee all met together to review the status of many planning initiatives, an in-depth discussion on the 40B process with Town Counsel also was held. The discussion afforded board and committee members an opportunity to better understand what to expect once the Town receives the formal submittals of a proposed 40B project.
A 40B project is one where a developer proposes a new housing development with at least 25% of the units being below market rate. Typically, a 40B project seeks a higher density of units than what the zoning regulations normally allow. Mass General Law Chapter 40B allows this higher density, overriding local zoning, in exchange for the provision of affordable housing units for low- and moderate-income residents.
With less than 5% of our current housing stock officially deemed affordable, we are not able to claim the town’s housing stock is “consistent with local housing needs” (a minimum of 10% is required before being able to make this claim.) Nor are we eligible for other “safe harbors” that would give us greater say in shaping a 40B project (having over 1.5% of our land base used for affordable housing – we are under 0.5%; showing definitive progress on our housing production plan; having an application for more than 200 units.)
What this means is that a developer is very likely to be successful in obtaining the needed permits for the construction of a 40B project. Even if our local zoning board of appeals, which serves as the issuing authority for the needed comprehensive permit for the project, denies the project the developer can appeal the decision to the state’s Housing Appeals Committee where a permit will most likely be awarded due to the committee’s desire to see more housing.
As explained by Town Counsel during Monday’s meeting, having the Selectmen negotiate a development agreement before the formal permitting process gets underway with the ZBA can help steer the project in a way that is more beneficial to the Town. A development agreement with the Selectmen can work through issues such as the number of units, units set aside for local preference, visual impacts, and mitigating measures to off-set impacts on municipal services. Without these issues settled beforehand, the ZBA process can be more drawn out and the developer can appeal the ZBA’s decision to the state. The Town losses a good deal of its leverage at this point.
The Selectmen believe it is worth pursuing a Local Initiative Project allowed by the statute (“friendly 40B”) and thus negotiate a development agreement. We anticipate that the developer will provide detailed submittals of the proposed project, slated for land across the street from Atwater Avenue on Upper School Street, by early September. The Selectmen will hold public meetings in the fall during which the developer will present their proposal and an open process of negotiations takes place. Prior to this as well as during the negotiations, the Selectmen will seek the input from our various land management boards and the general public. The aim will be to reach an agreement with the developer by November.
With a development agreement in hand, the developer can request a project eligibility letter from the state. (Alternatively, the developer can request this from the state without an agreement with the Town, but the process is quicker with a town agreement.) Once the project eligibility letter is received, the project moves into the formal hearing process before the ZBA. Hearings before the ZBA can take a few months to conclude. If a development agreement is in place, the conditions contained in the agreement are made part of the ZBA decision. Assuming a positive decision is reached, the project moves ahead. If not, the developer can appeal to the state where a green light is likely to be given. While the state decision is appealable, the success rate of appeals by towns is not very high.
Despite the negative reputations of some 40B projects (and there are some that deserve this) a collaborative process where both the developer and community come together on a mutually acceptable project is possible. A key goal of our Master Plan is to diversify our housing stock as well as expanding our taxable commercial real estate base. It is possible to advance these goals and others through a friendly 40B project.