Chapter 40B should buy the farm.

• Author: Dardeno, Kara L.
• Position: Massachusetts

"It's really the last remaining large piece of land in the entire town. It would just be an enormous loss not just for Winchester but really for the whole state, and really for the country. It's a property of national and even international significance. To see something like that disappear would just kill me because you can't reproduce it. It won't come back. It's gone forever." (1)

I. INTRODUCTION

Winchester, Massachusetts is a quaint New England town. (2) The town center, consisting of brick walkways and stone buildings, hosts small shops and boutiques with a limited number of commercial franchises bearing softened logos. (3) Large Victorian homes, a few buildings, churches, and other structures throughout the area surround the center of town. (4) Newer development located along the town lines has been limited to large, single-family dwellings. (5)

Although most of Winchester's six square miles are covered by homes and other structures, Winchester maintains its character through historic structures and green space. (6) In addition, the changing landscape of hills and valleys offers views that seem to defy the dense development. (7) Indeed, the town retains an old New England atmosphere. (8) Behind a sign bearing the words "THE FARM," one can catch a glimpse of green pastures, woods, and raspberry fields. (9)

Upon further examination, however, it becomes evident that this atmosphere has been consciously preserved. (10) Just down the street, at the bottom of a steep hill, an active intersection bears no traffic lights. (11) Sidewalks are scarce. (12) Removed from the center of town, there is no public transportation. (13)

It is thus unsurprising that residents disapproved when a large-scale development threatened to invade their neighborhood. (14) Residents were concerned that the developer would evade the local zoning laws by allocating a certain number of units to low-income housing on farmland of historical significance. (15) Additionally, the land, which contains wetlands, a pasture, and wooded areas, is of environmental significance. (16) Some residents also may have resisted the addition of low-income families to a community where most people belong to a country club. (17)

Massachusetts General Laws Chapter 40B (Chapter 40B) permits a developer to bypass local zoning laws by designating a number of units as low-or-moderate-income housing. (18) The Massachusetts legislature passed Chapter 40B in 1969 to counteract exclusionary zoning practices in suburban Massachusetts. (19) Exclusionary zoning restricts access to a community by instituting building standards that increase home prices. (20) Thus, exclusionary zoning incidentally bars low-or-moderate-income households and disproportionately restricts minorities. (21)

Zoning law implementation and enforcement has traditionally belonged to local, rather than state or federal government. (22) Chapter 40B, however, permits a state board to override local decisions prohibiting or restricting a proposed development that includes affordable housing. (23) Traditional zoning power returns to the locality only after 10 percent of the housing in a community meets the legislative definition of "affordable." (24) Thereafter, so long as 10 percent of the community's housing remains affordable, the locality need not grant permits to Chapter 40B developers. (25)

Winchester residents have been particularly cognizant of Chapter 40B since the former owners of the twenty-acre Hamilton Farm agreed to sell it to developer AvalonBay. (26) With merely 1.8 percent of its total units considered affordable under Chapter 40B, Winchester could not reasonably deny AvalonBay zoning rights under Chapter 40B. (27) Instead, Winchester exercised its right of first refusal under Massachusetts General Laws Chapter 61A, buying the land under the same terms as the Hamiltons had agreed to sell to AvalonBay. (28) Winchester was able to fend off the developer both because the land was listed as agricultural, and because residents agreed to pay the nearly fourteen million-dollar price tag. (29)

This Note will use the Hamilton Farm incident in Winchester, Massachusetts, to discuss the effects and inefficacy of Chapter 40B. (30) Part II, sections A and B, will first explore the history, usage, and contours of Chapter 40B. (31) Part II, sections C and D, will then address the law as applied to Winchester, Massachusetts, including the motivations behind Winchester's resistance to the proposed development of Hamilton Farm and the scheme Winchester took to avoid the law. (32) Next, section D will introduce the Massachusetts General Laws Chapter 40R (Chapter 40R) Smart Growth Zoning and Housing Production law as an alternative to Chapter 40B. (33) Part III will argue that Chapter 40B was, indeed, successful in motivating Winchester residents to implement more inclusive zoning laws, even though the law was not able to create affordable housing in this instance. (34) Finally, this Note will conclude that Chapter 40B is not the most efficient means to achieve Massachusetts's

affordable housing goals despite the legislature's admirable intentions. (35)

II. HISTORY

1. Chapter 40B--An Overview

   The Massachusetts Constitution confers to the legislature the power to "limit buildings according to their use or construction to specified districts of cities and towns." (36) Subsequently, the legislature delegated this power to municipalities. (37) A legislative committee, however, found that municipalities abused this power by implementing restrictive zoning practices that frustrated the construction of low-income housing. (38) The committee noted that the number of low-or-moderate-income homes was insufficient to provide housing for families already living within those communities. (39) The committee was concerned, among other things, that Vietnam War veterans would not be able to return to their former communities. (40) Consequently, the legislature withdrew some of these powers formerly entrusted to cities and towns. (41)

   The committee intended the resulting measure both to prevent unreasonable exclusion of low-income housing and to afford "the least interference with the power of the community to plan its own future." (42) Accordingly, the Massachusetts legislature enacted Chapter 40B, which operates by incentive to encourage developers to construct affordable housing. (43) Under Chapter 40B, also known as the "Comprehensive Permit Law" and the "Anti-Snob Zoning Law," developers may flout local zoning regulations by designating a number of units to aid low-or-moderate-income households in municipalities that have not attained the threshold of affordable housing. (44) For instance, Chapter 40B includes, but is not limited to, construction of multi-family structures in zones reserved for single-family dwellings. (45)

   The Chapter 40B, section 20 threshold is met when 10 percent of the total housing units in a municipality consist of low-or-moderate income housing. (46) A regulation code defines "low-or-moderate-income households" as those earning an amount equal to or less than 80 percent of the area's median household income. (47) Unless the municipality achieves this percentage or has made recent progress toward this goal, any applicable proposed developments are presumed "consistent with local needs." (48) Thus, any municipality that has not met its housing minimum may not deny such a comprehensive building permit without proving that the regional need for affordable housing is outweighed by other interests that may include "the protection of the safety and health of the town's residents, development of improved site and building design, and preservation of open space." (49)

   A developer proposing to build under Chapter 40B may file for a comprehensive building permit with the local zoning board. (50) Additionally, the developer may appeal to the Housing Appeals Committee (HAC) if the local board subsequently declines the proposal or conditions approval on stipulations that would make the development "uneconomic." (51) HAC then determines whether the local zoning board's decision was "reasonable and consistent with local needs." (52) HAC may not order a municipality to issue the permit, however, if that municipality has met the 10 percent minimum. (53) Conversely, HAC may overturn the locality's decision if it finds the local board's rejection of, or limitations to, the project are unjustified. (54) The superior court possesses the power to review HAC's decisions. (55)

   Municipalities and individuals alike have expressed opposition to the use of Chapter 40B. (56) In the past, town boards have objected to and refused to grant permits to development owners' operations. (57) Landowners abutting these projects have also taken action by bringing suits as persons aggrieved by such permits. (58) Nevertheless, town and abutter resistance have not had great success. (59)

   In Zoning Board of Appeals of Wellesley v. Housing Appeals Committee, (60) the Supreme Judicial Court (SJC) affirmed a HAC decision that directed the Town of Wellesley to issue a comprehensive building permit. (61) The Town of Wellesley alleged that the intended site was unequipped to provide facilities for the increased population and that the plan would endanger the future residents. (62) Ultimately, the town concluded that these considerations outweighed the need for a limited number of affordable units. (63) Even so, the HAC, as well as the SJC, held that the board's decision was not consistent with local needs, or otherwise reasonable, and thus ordered the board to issue a permit. (64)

   The HAC also denied neighboring landowners' motion to intervene in Enterprise Village, LLC v. Yarmouth Board of Appeals. (65) The landowners raised such concerns as the safety of the population residing in a commercial zone, the quality of life for those residents, traffic concerns, and the impact on the surrounding commercial properties. (66) The HAC...