A New Approach to Housing: Changing Massachusetts's Chapter 40R from an Incentive to a Mandate.

AuthorForgione, Ryan

"But how do you build up when neighbors want down?" (1)


    The United States is facing a housing crisis. (2) Simply put, there is an enormous demand for affordable housing and the country's supply is not keeping up. (3) Both the private housing market and state subsidies for affordable housing have succeeded in increasing the housing stock, but have largely failed at closing the gap between supply and demand, leaving housing prices out of reach for many. (4) While the country as a whole feels the effects of this economic phenomenon, coastal cities experience the worst effects as an increasing number of jobs cluster into these areas. (5) As such, within the last year, both the California and Massachusetts state legislatures have attempted to address the root of the problem: local land use restrictions on constructing homes. (6)

    A state government encouraging the development of new, affordable homes is not an innovative approach. (7) In Massachusetts, chapter 40B of the Massachusetts General Laws (Chapter 40B or 40B) already provides legislative tools for private developers to build affordable housing where local zoning forbids such action. (8) What is new, however, is the recent shift from simply building affordable housing to building housing near transit. (9) This is a subtle shift, in the sense that the goal of affordable housing remains the same, but a shift that nonetheless has the potential to remake both large metropolitan cities and small municipalities alike. (10)

    In California, State Senator Scott Weiner proposed a Transit Zoning Bill (SB 827) that would have usurped local building restrictions for new construction near transit hubs. (11) The bill would have allowed residential developers to skirt local rules on height, density, and parking if their buildings are within a half-mile of transit. (12) Soon after, Senator Weiner proposed a revised version, Senate Bill No. 50 (SB 50), that attempted to add areas classified as "job-rich" to the transit areas covered in SB 827. (13) Less radically, in Massachusetts, Governor Charlie Baker proposed An Act to Promote Housing Choices (HB 4075), which would allow cities and towns to change their zoning practices by a simple majority, rather than the two-thirds supermajority currently required. (14) The key difference between the two states' approaches is the severity of the state preemption, as California's bills would have allowed developers in qualifying districts to build without local zoning input. (15) The Massachusetts proposal would simply make it less onerous for a municipality to change its local zoning laws through a majority vote rather than an often unattainable supermajority. (16)

    Although incomparable in land area size, both California and Massachusetts have robust and extensive mass transit systems that are vital to each state's economy. (17) These systems are not limited to urban areas such as Boston, Los Angeles, and San Francisco, but rather connect suburban, residential communities to urban areas where jobs are clustered. (18) These urban and suburban connections offer a case study for the housing crisis as a whole, as dense urban environments build a substantial number of housing units, while the suburban communities these transit connections serve are unable to build more housing due to local land use restrictions. (19) To combat the housing crisis, these communities must build more housing. (20)

    This Note will first examine the local land use controls used to restrict housing supply beginning in the early twentieth century. (21) It will then compare and contrast the various state legislative responses in the twentieth century to a growing affordable housing crisis. (22) This Note will also compare the twenty- first century approaches, examining Massachusetts's transit-based initiatives to bypass local zoning control in comparison with California's attempts to completely preempt local zoning regulations by allowing housing development near existing transit. (23) Part III of this Note will argue that Massachusetts's incentive-based approach to housing production has both failed to effectively address the crisis in the past and will fail again under the rebranded "Housing Choice Initiative." (24) Finally, this Note will argue that preempting local authority, as attempted in California, and establishing a nexus between housing and transportation provides a necessary solution to one of the country's biggest challenges: a critical lack of affordable housing. (25)


    1. Local Control

      1. The Origins of Zoning: The Euclid Decision

        As set forth in Village of Euclid v. Ambler Realty Co., (26) local zoning regulations are a valid exercise of state police power. (27) At issue in Euclid was a local ordinance that not only separated residential uses from commercial and industrial uses, but also separated certain types of residential uses from residential districts, namely apartment houses. (28) In its reasoning, the Supreme Court acknowledged the practical wisdom of separating land uses from one another, highlighting the traffic, fire safety, and noise concerns zoning can address. (29) But the Court also alluded to the exclusionary effects of zoning when it condemned apartment houses as "mere parasite[s]" when constructed in single- family neighborhoods. (30) In doing so, the Court held that segregating housing types is not only constitutional, but also sound municipal policy that courts will not interfere with if there is a rational basis for the zoning classification. (31)

        State legislatures swiftly responded to Euclid. (32) All states eventually passed a zoning enabling act--modeled after the Standard State Zoning Enabling Act (SSZEA)--that delegated zoning authority from the state level to municipalities. (33) State legislatures intended these acts to promote zoning schemes that adhered to a comprehensive plan, rather than the "hodgepodge" of authorities previously governing land use. (34) These zoning acts reflected the prevailing opinion of the time, namely that zoning is primarily a local concern, best handled by residents of that particular community. (35) And so, "Euclidean zoning" was born. (36)

        Since state legislatures passed their zoning enabling acts, zoning power is largely concentrated with local decision-makers. (37) And as the Court noted in Euclid, courts give deference to state and local land use decisions. (38) As such, cities and towns enjoy almost unlimited power to restrict the use of property as long as they can provide a rational basis for doing so. (39)

      2. The Mechanics of Local Control

        State zoning enabling acts give municipalities zoning power. (40) From there, zoning ordinances and bylaws aim to promote the public health, safety, and welfare by regulating both land uses and building types. (41) In exercising their zoning rights, municipalities act under their independent police power, entitling them to the traditional deference this power affords. (42)

        Due to this broad grant of power, there is no shortage of ways in which a municipality can restrict where and what type of building a developer can construct. (43) Courts have upheld minimum lot size and setback requirements, single-family residential districts, and height restrictions as a valid use of the police power. (44) In this sense, the power to zone is best thought of as the power to exclude. (45)

        But the power to exclude is not limited to types of buildings or uses; rather, it often includes the power to exclude people. (46) For example, municipalities may set minimum lot sizes far above what a prospective buyer needs, thus significantly inflating the cost of entry into the market. (47) Likewise, minimum lot space requirements force buyers to purchase larger houses than they can afford, and age restrictions force families to compete for a limited supply of housing. (48) In essence, the original purpose of zoning--to prevent overcrowding and congestion--justifies using zoning ordinances to exclude all but a well-off few. (49)

      3. Effects of Local Control

        The exclusionary phenomenon of land use regulations, which prevents a new supply of housing, negatively affects prospective homebuyers and contributes to residential stagnation. (50) Areas with high demand for jobs are unable to attract new workers due to exclusionary land use restrictions. (51) Without workers to satisfy demand, residential stagnation suppresses economic growth and separates communities along class lines. (52)

        In a similar vein, exclusionary zoning contributes to, if not causes, racial segregation. (53) It is well-settled that a zoning law explicitly seeking to exclude racial minorities is unconstitutional. (54) But exclusionary zoning techniques that raise the price of housing or discourage renting indirectly bar poor minorities from living in certain areas and exacerbate segregation. (55)

        Finally, exclusionary zoning negatively affects the environment by producing "sprawl." (56) Restraining the supply of new homes does not restrain the demand for new homes, creating a phenomenon where development sprawls outward from urban areas into open land. (57) This sprawl causes longer vehicle trips and commutes, which in turn increases carbon dioxide emissions. (58) Likewise, exclusionary zoning pushes development into environmentally-sensitive areas, such as wetlands, once cities and towns effectively ban new development. (59)

        Courts, when evaluating zoning challenges, consider only whether the municipality enacted zoning "to further the general welfare." (60) This standard's vagueness makes a zoning challenge almost impossible, as municipalities only need to argue they proceeded "with the welfare of its own residents in mind." (61) Further, courts are reluctant to step into an area they view as a matter of local control. (62) As such, one of the most effective approaches to overcoming local zoning control was a landmark piece of Massachusetts legislation, Chapter 40B, aptly...

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