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The 40B Conundrum
Bill Manzi, President, Methuen City Council

Chapter 40B, (“anti snob zoning”) the State law designed (in theory) to promote affordable housing, has been a source of controversy for some time now. The law has prompted many suburban legislators in the State Legislature to call for its outright abolition, and has been a serious source of tension in many municipalities, as developers use it to impose megadevelopments in the face of strong local opposition. Governor Romney created a special task force to study Chapter 40B, and the Commission’s report is available online at www.mass.gov. /dhcd/ch40btf/. Methuen is now facing a second 40 B application centered off of Tyler Street, with strong opposition recorded at the first public hearing held last week.

What are the issues that drive opposition to Chapter 40B, and are the charges hurled by 40B proponents (principally that local zoning is designed to unfairly thwart development of needed housing) accurate? Let's look at those issues. In Methuen and elsewhere in Massachusetts, developers have used the law to promote developments that are huge by any standards, and in conflict with local planning regulations. A project in East Methuen that applied and was approved under 40B will be built on landzoned industrial. The conflict between sound planning and the wrecking ball of Chapter 40B is obvious. Local planners spend time and money developing master plans for their community, usually with significant public input, and a 40B application can totally alter the planning landscape. With developers using the threat of appeal to the state of any local denial, local officials are in a position where they must negotiate the best deal possible in light of the probable success of the appeal.

The negotiations essentially target development size, infrastructure and public safety concerns. In light of this, developers usually come in with oversized projects, and “negotiate” them to smaller sizes. Opposition from the citizens of an affected area has been derided by proponents of the law as strictly NIMBY, but does that charge hold up to scrutiny? Certainly, citizen opponents of Chapter 40B projects have made some claims that probably don’t hold water, but many claims made are substantive, and the impacts highlighted severe. Some of these impacts (traffic, school size issues, quality of life issues, budgetary concerns) are openly derided by the law's proponents. These concerns are not invented or specious, but are in fact substantive and real. As an example the second Tyler Street 40 B project is centered in an area already under near traffic gridlock at peak traffic hours. The overwhelming concern among neighbors that an already bad traffic situation will be made worse is not a manufactured concern, but a true quality of life issue.

Chapter 40B requires that 10 percent of a community's housing stock be “affordable”.  The definition of affordable is another point of dispute, and legislation that adopted some of the Governor’s task force recommendations passed the House but has not as of yet been taken up by the Senate. This legislation, if enacted, would have probably placed Methuen over the ten percent threshold. In fairness, I do not doubt that many communities do not desire any new housing and have promoted zoning policies to achieve that goal. Even in those cases, however, 40B as it currently exists is the wrong answer. The goal of promoting affordable housing should be achieved in cooperation with localities, not by trampling over them. The State needs to reform the existing system, and look at a comprehensive new approach to meeting housing needs in Massachusetts. The Governor’s point person on housing matters has articulated the goal of combating the spread of “sprawl”, and that should be an important consideration in the formulation of new policy. Read a short synopsis of 40B at www.02133.org/issue.cfm?ID=103.

Finally, I would like to point out that massive 40B developments severely impact municipal budgets by way of school capacity, fire protection, police protection, garbage pickup, sewer and water services, and general DPW services. With the State currently promulgating fiscal policies that will force layoffs in Police, Fire, and DPW, they are in no position to be imposing additional costs on municipalities. For that reason alone this law needs to be reformed, with the State taking a more proactive financial role in assuming some of the incremental costs that Chapter 40B imposes on the property tax.  The drive to force property tax increases on citizens by the State needs to be stopped now! The next 40B ZBA meeting on the Tyler Street project is scheduled for November 3rd and should deal with the issue of traffic. Look forward to seeing you there!

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Prior Columns by Billy Manzi