The story is often the same.
A developer proposes to build a densely populated, mixed-income housing complex in a community. The proposal evokes outrage from local residents who argue the development will be disruptive. The influx of so many new people will exacerbate traffic, unfairly add costs to municipal budgets and strain local infrastructure, the argument goes.
“The proposed development is poorly designed and too intense for a site that is just over an acre in size,” wrote the Wellesley Board of Selectmen in a letter objecting to mixed-income developments on Stearns Road and Worcester Street. ”(It) must be denied at this level of density.”
Despite the local outcry, however, developers often end up building what they want because the law is on their side.
The story is old news in Massachusetts and it’s known colloquially as “40B.” The comprehensive permitting process has raised ire in cities and towns for decades, and new proposals crop up fairly consistently, especially in years when the economy is strong.
At least 38 projects totaling 3,337 units were proposed statewide in 2017, which is far more than the five projects totaling 391 units proposed in 2010, the basement of the Great Recession.
Beneath the surface of debate, however, is a glaring issue in Massachusetts, and one 40B was designed nearly 50 years ago to fix -- a shortage of affordable housing. The problem persists today and is part of a larger housing shortage problem that Gov. Charlie Baker, a Republican, has called a crisis.
Unabated, most cities and towns have not developed enough affordable housing during the last five decades. According to the 2010 Census, Norwood has 1,035 affordable housing units, putting it at 8.3 percent, below the 10 percent needed to stop such developments. The Census will be done again in 2020. Recently, the town purchased the Forbes Hill property to take control of land that was slated for a 40B development.
Housing officials say the environment has improved in recent years. But the trend remains widespread and could ultimately stunt the state’s ability to grow.
“The big-picture risk is that we price our economy into a place where we can’t afford to grow anymore,” said Paul McMorrow, director of communications and policy at MassHousing, a quasi-public state agency that reviews the majority of 40B projects. “We already know the average family, whether it’s renting or buying, has a hard time affording an average house, and that’s not a situation that’s sustainable over the long term. The workforce has to be able to afford to live.”
Chapter 40B, as it’s technically known, became law in 1969 after the state Legislature determined there were too many local barriers to developing affordable housing. The law is multifaceted, and allows developers to bypass local zoning requirements if the proposal is more than 25 percent affordable and the municipality has less than 10 percent affordable housing.
The law begets friction in a state where municipalities typically have broad authority over local planning and development issues.
“There are a lot of cities and towns that feel like 40B happens to them, which is the worst dynamic that can exist,” McMorrow said. “If development is something that happens to you, and it’s something that you resist – it’s something you fight tooth and nail. That’s not a healthy dynamic locally, and it’s not going to allow us to grow.”
Nearly 50 years since the law was enacted, and more than eight in every ten of the 351 Massachusetts municipalities still fall short of the 10 percent benchmark. Almost 50 percent have less than 5 percent of affordable housing units and 42 communities don’t count a single unit.
The numbers will only get worse in a few years after the U.S. Census Bureau recounts housing units because the current stock is based on 2010 numbers. When the census recounts in 2020, all units developed since then will be added to the total, making the current makeup of affordable units appear less rosy.
“There has been some progress made, but the overall point is that most communities are under the 10 percent threshold and some are well under it,” said Tom Callahan, executive director of the Massachusetts Affordable Housing Alliance, a nonprofit advocate for affordable housing ownership.
There’s no monetary penalty if a community falls below the 10 percent benchmark. But it does become harder to deny 40B projects, meaning developers have greater leverage when proposing such projects. The dynamic is playing out in many communities, including Wellesley, where affordable housing units total 6.3 percent.
“The town has recently been inundated with 40B site eligibility notices,” Wellesley wrote to the state.
By and large, the majority of the cities and towns that fall below the 10 percent requirement are in central to western Massachusetts, where market demand for affordable housing isn’t terribly strong. But most Bay State residents live in the eastern part of the state, and there are a slew of municipalities with a shortage of affordable housing, making them prime locations for developers seeking to earn a profit.
The 40B program is market driven, and attractive to the state in the sense that affordable units are not -- for the most part -- publicly subsidized, meaning there’s no upfront cost to the taxpayer. But local concerns often surround back-end costs, including increased school budgets, water and wastewater systems and public safety.
There’s also underlying trepidation about the idea of “affordable housing,” often foreign to affluent suburban and small-sized communities. The concerns, Callahan said, are unsubstantiated.
“There’s a misconception, still, this many years later that’s not justified by the actual experience,” Callahan said. “There’s a knee-jerk reaction that affordable housing is going to destroy the environment, cause traffic problems, bring in undesirables and racial minorities that’s not keeping with the character of a town or community.”
Indeed, affordable housing often makes people think of low-income housing. But for 40B affordable units, the law says residents must not make more than 80 percent of the area’s median income. For the more-affluent areas of Massachusetts, where the median household income exceeds $100,000 per year, the 80 percent benchmark is still far more than the U.S. median household income of $59,039.
By most measures, 40B is the state’s best tool to incentivize the development of affordable housing. About 70,000 housing units have been built since the law was enacted, and more than half have been deemed affordable, according to McMorrow.
The amount may not sound like much for five decades of development, but Massachusetts hasn’t done a great job developing housing at a rate comparable to its growth.
“That’s not an insubstantial number of affordable units when you view it in the context that many suburban communities are built out,” McMorrow said. “40B has been the primary driver of multifamily production. In many communities, anything that’s not a single-family subdivision was likely built with 40B.”
Of course, not all communities struggle to provide affordable housing, as 60 municipalities exceed the 10 percent benchmark, including Brockton, Cambridge, Danvers, Framingham and New Bedford.
There are also some limited examples of communities that have embraced the high demand for affordable housing, and more are taking proactive steps toward solving the problem before a 40B project is proposed. Cities and towns submit “housing production plans” with the state, which are entirely separate plans for developing more affordable housing. About 147 communities have received approval for such plans from the Mass. Department of Housing and Community Development.
The plans provide municipalities -- including Abington, Brookline, Dennis, Gloucester and Southborough -- with a blueprint for future development. It also affords them a greater ability to deny 40B projects, even if the city or town falls below the 10 percent threshold.
Others, like Amherst where affordable housing accounts for 11.3 percent of all units in the town, have embraced the 40B permitting process entirely, finding it more tenable than the myriad of restrictions and procedural requirements that come along with local zoning ordinances.
The approach is called “friendly 40B,” and it brings developers and local stakeholders together to design a plan that makes the most sense for all involved. The state, for its part, is taking some steps toward allocating more money for housing. In December, the state announced a new initiative aimed at creating 135,000 new housing units by 2025. On May 14, the state announced a pilot program that awarded $2 million to 15 municipalities to help increase housing production.
The reality, however, is that much more will be needed to reach more sustainable levels of housing for the fast-growing Massachusetts economy. And while 40B is one tool, the 10 percent benchmark -- which most communities don’t reach -- is still not enough.
“If every town built to 10 percent and stopped, we still wouldn’t have enough affordable housing,” McMorrow said.
Eli Sherman is an in-depth and investigative reporter at Wicked Local and GateHouse Media. Email him at email@example.com, or follow him on Twitter @Eli_Sherman.