A Refresher on the 40B Process
By Gregory T. Federspiel
The proposed 40B project at Shingle Hill has necessitated a bit of a crash course in the intricacies of the state law that governs these projects. It has been nearly 2 years now that the Town has been dealing with the proposal to build a large apartment complex on what, at best, can be called a challenging site.
Chapter 40B, Sections 22-23, known as just “40B” is a state law passed back in 1969 designed to facilitate the construction of low- or moderate-income housing in all communities. Developers can use 40B to obtain waivers from local regulations in communities that have less then 10% of their housing stock deed restricted as “affordable” per state definitions – housing that requires no more than 30% of the income of a family that earns 80% of the area’s Annual Median Income. The law basically allows developers to build projects that otherwise do not comply with local zoning and other regulations.
Not all 40B projects are adversarial. So called “friendly 40B’s” are possible when a community can work with a developer in crafting a project that the community endorses. While this was attempted in the case of the Shingle Hill proposal, the effort was not successful. Certainly, the constraints of the site hindered a positive outcome.
The project moved next to a conventional 40B whereby the Zoning Board of Adjustment, ZBA, undertakes a comprehensive permit review process. All local permitting is consolidated under the authority of the ZBA. After many months of hearings where testimony has been given by the applicant, peer reviewers hired by the Town and paid for by the applicant, Town staff and board members, many residents, and experts hired by different interest groups, the ZBA has closed the evidentiary portion of the hearing process and are now deliberating on the decision they need to make. The ZBA can approve the project with various conditions, or they can deny the project. In either case, a decision must be based on the evidence collected during the hearings. A decision is due 40 days after closing the evidentiary portion of the hearing – September 5th in this case.
The ZBA has held one deliberative session during which major concerns regarding environmental degradation and public safety dominated the discussions. The ZBA will be continuing their deliberations on August 16 starting at 6:30PM. While these sessions are open to the public no public comments can be taken now that the evidentiary portion of the hearing has been closed.
Regardless of an approval with conditions or a denial, the applicant can appeal the decision to the State’s Housing Appeals Committee. The Committee has set a very high bar for upholding a ZBA’s denial of a 40B project. The vast majority of denials are overturned by the HAC. As part of a state agency whose mission is to see more affordable housing built, they require compelling, well documented local needs that outweigh the regional need for more affordable housing. Their mandate is to build new affordable housing units. In the rare cases the HAC has denied a project, significant environmental degradation or major public safety concerns have often been the reason. Even in cases of a ZBA approval, the conditions that the ZBA places on the project can be appealed by the developer to the HAC where typically many conditions are removed due to causing the project to be “uneconomic” in the eyes of the applicant and the HAC.
The appeal process before the HAC is de novo, meaning that the proceedings before the ZBA are not part of the record. In essence, the hearing process starts all over. The applicant and the Town submit pre-hearing testimony. An HAC hearing officer conducts the hearings during which the applicant’s and the Town’s legal counsel cross examine the witnesses (typically consultants hired by either side) based on their pre-filed testimony. This process before the HAC can take a year or so to complete.
Once the HAC has rendered a decision, the applicant, the Town or other parties can appeal to the courts. The court appeal process is based on the record established during the HAC process. The court proceedings can take multiple years to complete.
While I am not a betting person, I do not think I am going too far out on a limb to say that regardless of what decisions are made by the ZBA, one party or another will be appealing, and we have many more years ahead of us before a final resolution on this proposal is reached. Given all that we know about the area, I wonder if the time and money might better go toward a deal that preserves this land in its natural state.