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A Narrative Summary of the Massachusetts 40R Smart Growth Statute

THE smart-growth zoning districts created under 40R are primarily designed for housing development, but such districts may also be used for commercial uses “consistent with primary residential use.”[1] A town or city should apply to the Department of Housing and Community Development (“DHCD”) with its proposal for a smart growth district, and upon approval, the town shall submit proof of adoption of either a zoning ordinance or by-law to DHCD for further approval.[2] The minimum requirements for a smart growth zoning district emphasize greatly the density of development: “[density] shall be at least 20 units per acre for multi-family housing on the developable land area: 8 units per acre for single-family homes on the developable land area; and 12 units per acre for 2 and 3 family buildings on the developable land area.”[3] At the same time, the statue works to preserve affordability — in developments of more than 12 units, at least 20 per cent of units must be affordable (to those whose income is 80%  or less of Area Median Income).[4]

The statue provides that a district should not restrict by age or other occupancy restrictions.[5] But there may be development specifically for the elderly, and such elderly developments must include at least 25% of its housing as affordable.[6] 

In return for meeting these stringent density and affordability requirements, cities and towns benefit from incentive funding from the DHCD. First, DHCD will pay incentive payments for the creation of a district itself, which are paid according to a schedule of up to $600,000 depending on the number of units allowed by the district.[7] Then, DHCD will pay construction bonuses of $3,000 per housing unit of new construction that is created in the district, paid within 10 days of proof of issuance of a building permit.[8] 

The Massachusetts 40R statute attempts to balance what are often referred to as conflicting equity interests: environmental justice and economic equality.[9] Environmental activists focus on the long-term costs of development; they argue that increased development disrupts natural environments and will increase long-term costs to society that are caused by over-development, such as flooding, drought, smog, etc.[10] In contrast, affordable housing advocates try to limit present day costs of development and use a balancing approach in mitigating as much environmental degradation as possible in the process.[11] 

The 40R statute strives to preserve affordability while controlling for environmental degradation and sprawl. The negative impacts of sprawl are well-known: scattered development, underdeveloped regions, large amounts of personal space surrounding single-family developments, lengthy commutes to work and leisure, high household and automotive expenses, segregation of land uses, and developments that are mismatched with their surroundings in terms of intensity or appearance.[12] Thus, the 40R statute addresses important environmental and social concerns in tandem.

The statute aims, in part, to reverse the suburbanization that has expanded in the Commonwealth of Massachusetts for many generations. A “frontier ideology” of moving away from urban life and conquering new, natural areas for human enjoyment, has become a way of American life.[13] And federal policies aided such advances into new frontiers, such as by providing mortgage insurance giving incentive to single-family home ownership.[14] White flight to suburbs around the middle of the 20th century was another essential driving force toward sprawl, while suburban communities and developer production of affordable track homes enabled this movement.[15] The American obsession with homeownership remains as an obstacle to 40R programs, and promoters of this policy must overcome an American want of space and privacy and an aversion toward communal living.[16] And these social attitudes manifest in the following way: in the 1980s and 1990s, the land consumption rate in Massachusetts was a staggering seven times higher than its population growth.[17]

Solving this land over-consumption has been largely left to the municipalities. Such broad discretion over land use might give power to those with the most nuanced understanding of the local geography. But there is a problem when environmentally inefficient uses of land — for example, the development of above-mentioned luxury single-family developments — are highly profitable for the municipality though environmentally harmful.[21] In such instances, environmental degradation produces costs for all members of society to varying degrees, but there is little recourse against municipalities so long as they comply with minimum federal or state-wide standards.[22] While municipalities have the power to regulate land use, they are sometimes ill-equipped to deal with a host of environmental issues caused, at least in part, by sprawl: air pollution and carbon emissions; water runoff pollution; reduction of open space and wetlands; ecosystem destruction; and increased use of fossil fuel and natural resources. 40R might allow municipalities to retain control over zoning while mitigating negative environmental outcomes.

For more information on affordable housing development, 40R, 40B, or the various local, state and federal agencies involved in such developments, please contact Glickman, Sugarman, Kneeland and Gribouski at your convenience.

[1] M.G.L. ch. 40R §3.

[2] M.G.L. ch. 40R §4.

[3] M.G.L. ch. 40R §6.

[4] Id.

[5] Id.

[6] Id.; There are multiple ancillary minimum requirements of proposed smart growth districts in the statute that are not as restrictive or cost determinative as those above-mentioned, and that for purposes of this paper are not enumerated.

[7] M.G.L. ch.40R §9

[8] Id.

[9] See, generally, Rusty Russell, Equity in Eden: Can Environmental Protection and Affordable Housing Comfortably Cohabit in Suburbia?, 30 B.C. Envtl. Aff. L. Rev. 437 (2003).

[10] Id. at 438.

[11] Id.

[12] Id. at 443.

[13] Id. at 449.

[14] Id.

[15] Id.

[16] Id. at 450.

[17] Karla L. Chaffee, Massachusetts’s Chapter 40R: A Model for Incentive-Based Land Use Planning and Affordable Housing Development, 10 Vt. J. Envtl. L. 181 (2008).

[18] Appendix at 20.

[19] Appendix at 21.

[20] Appendix at 20.

[21] See, generally, Rusty Russell, Equity in Eden: Can Environmental Protection and Affordable Housing Comfortably Cohabit in Suburbia?, 30 B.C. Envtl. Aff. L. Rev. 437 (2003).

[22] Id.

[23] Chaffee, supra note 17, at 185.

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