To 40B or not to 40B, that is Question 2

More than 30 years ago, housing activists in Newton, mindful that young adults who had grown up in town couldn’t afford to live there and that elderly homeowners couldn’t afford to find replacements for their homes, set about encouraging low and moderate-income housing. Today it’s called affordable housing, but the principle is the same.


The Newton Community Development Foundation (NCDF),  founded in 1968, came up with the idea of building handfuls of mixed-income housing on around 10 sites scattered across the city. The theory was that, if you were building in all neighborhoods, no single neighborhood could complain it was being disproportionately burdened. The proposal backfired. People who had never had a thing to do with each other, from the rich to blue collar, from the south side of the city to the north, formed an alliance, beat back the housing proposal, and fielded aldermanic candidates in the next election who opposed the NCDF proposal. Opposition to affordable housing is a powerful force.

Not long thereafter, Newton did manage to institute a 10 percent rule, which held that a developer who set aside ten percent of the units in a project for affordable housing would be able to move more easily through the zoning approval process. Since then, hundreds of affordable units have been built. Even so, Newton’s percentage of affordable units has only hit eight percent.

In 2009, the median home price in Newton was $710,000, up more than 57 percent since 1999. Under the ten percent rule, 1,300 affordable homes have been built. Of these, 675 are restricted for households earning approximately $65,000 or less for a family of four. Since 1997, 86 percent of affordable housing built in Newton could not have been built without the affordable housing law, all of this according to Rep. Kay Khan, writing in The Newton Tab.
Which brings me to 40B, the state law that allows developers in communities that haven’t achieved ten percent affordable housing access to a comprehensive permitting process. That process makes it possible to build more units than zoning restrictions dictate if building only the allowable number of units is deemed to be “uneconomic” and if community needs for low-middle income housing make the larger size development desirable. Statewide, 80 percent of affordable housing units built outside the largest cities have been due to the ten percent rule. Some 130 communities are at or near ten percent affordable units.

Question 2 on the ballot would repeal 40B on the theory that local communities can’t handle the large number of units the law has permitted. Highly respected journalist and social critic Dan Kennedy has joined his voice to the opponents’ based on what he has observed in Danvers.
A 2008 change in the regulatory process may already have dealt with some of the earlier problems with 40B, requiring state regulators to weigh density and other factors that determine how a proposal fits in with local patterns.

Additionally, communities may be exempted from 40B if they are developing a comprehensive housing plan and acting on it, moving it forward. Ten municipalities are under this exemption. So there are ways to deal with 40B if a community is serious about meeting their housing goals.

My take: don’t jettison the law that has been the principal reason affordable housing has been built (some 58,000 units, according to those opposing repeal). Find ways to fix it. Better still, find ways to bring lagging communities up to the ten percent threshold for affordable housing. Vote no on Question Two.