A Narrative Summary of the Massachusetts 40R Smart Growth Statute

  • By Terrence Rubino
  • 16 Sep, 2015
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.
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.

GSK&G Legal News

By Darren Griffis 06 Nov, 2017

In a decision that will significantly impact the evidence that can be used against defendants charged with driving under the influence of marijuana (or, as they say in Massachusetts, operating under the influence or “OUI”), The Massachusetts Supreme Judicial Court recently restricted the extent to which field sobriety tests (FSTs) can be used as evidence of marijuana intoxication at trial. In Massachusetts, if a defendant is charged with OUI for allegedly being under the influence of alcohol, a police officer can testify about the person’s level of intoxication based on how they perform on the FSTs. However, the Court found that police officers may not use their observations of a defendant’s performance on these tests as a basis for drawing a conclusion about whether the defendant was under the influence of marijuana.

The case, Commonwealth v. Gerhardt , stems from a 2013 traffic stop in which the defendant, Thomas Gerhardt, allegedly “failed” multiple FSTs after being pulled over by a state trooper. Based on the defendant’s inability to adequately perform the tasks involved in these FSTs, the officer testified that he came to the conclusion that the defendant was “high” after smoking marijuana. Mr. Gerhardt’s attorney argued that such tests were designed to test one’s alcohol intoxication level and that they do not directly translate to the context of marijuana use. Fortunately for Mr. Gerhardt, the SJC agreed with that argument.

 While standard FSTs are generally accepted by courts as reliable representations of a person’s intoxication from alcohol consumption, there is no scientific consensus about whether the tests are indicative of marijuana impairment. According to the SJC’s decision in Gerhardt , scientists have found that, unlike alcohol, which has a relatively predictable effect on most people, marijuana can affect different people in vastly different ways. Because of this variation, the court concluded that the FSTs do not necessarily predict whether a defendant is under the influence of marijuana. Thus, the court concluded that an officer may only testify as to his or her observations of a defendant’s performance on the tests and not about whether he or she concluded that a defendant was under the influence of marijuana based on the defendant’s ability to complete the administered tasks. 

Furthermore, after the court’s decision in Gerhardt , an officer may not testify that a defendant “passed” or “failed” any FST, since that language “improperly implies that the FST is a definitive test of marijuana use or impairment.” The court also instructed that officers should avoid calling the FSTs “tests” in these types of cases and should instead refer to the tests as “roadside assessments” to prevent a jury from impropely jumping to a conclusion that the tests are scientific evidence of a defendant’s sobriety or intoxication. Finally, the court included model jury instructions for future trials that will tell juries that evidence of performance on FSTs alone is not sufficient to support a finding that a defendant’s ability to drive safely was impaired due to the consumption of marijuana.

If you are facing criminal charges, including charges that you drove a car while under the influence of marijiuana, please contact James Gribouski or Darren Griffis at Glickman, Sugarman, Kneeland & Gribouski for more information about how they can put their legal knowledge to work for you.

By Darren Griffis 01 Nov, 2017

November 1, 2017, East Brookfield District Court, East Brookfield, Massachusetts

Attorney James J. Gribouski’s client, a twenty-two year old Webster, Massachusetts woman was stopped by a Dudley, Massachusetts police officer for allegedly crossing the middle lines on the roadway. After the client performed standardized field sobriety tests, including the walk and turn and one-legged stand, the officer arrested her for OUI.

Attorney Gribouski obtained the police reports and booking video, and after reviewing that evidence, recommended that his client proceed to trial. At trial, Attorney Gribouski cross-examined the police officer on his observations of the client and presented a copy of the booking video in his client’s defense. After the judge heard the cross-examination of the officer and watched the booking video, Attorney Gribouski's client was acquitted of the OUI charge.

By Darren Griffis 31 Oct, 2017

October 27, 2017, Central District Court of Worcester, Worcester, Massachusetts

Attorney James J. Gribouski’s client, a twenty-seven year old native of Revere, Massachusetts, was happily cruising down Route 146 at 94 miles per hour in Uxbridge, Massachusetts, smoking a bowl of marijuana when a Massachusetts State Trooper pulled him over. After the client admitted that he had just smoked the marijuana, the Trooper requested that he perform field sobriety tests and then charged the client with OUI marijuana.

During the pendency of the case, the Massachusetts Supreme Judicial Court issued an important decision in  Commonwealth v. Gerhardt .  In that case, the SJC ruled that police can no longer offer an opinion as to whether a person was impaired by marijuana based on field sobriety tests (which are now to be referred to as "roadside assessments). Based on that recent ruling and his evaluation of the facts in the trooper's report, Attorney Gribouski recommended that his client proceed to trial, and the client was quickly acquitted.

By Darren Griffis 26 Oct, 2017

October 26, 2017, Concord District Court, Concord, Massachusetts

Attorney James J. Gribouski’s client was stopped at a Massachusetts State Police Sobriety Checkpoint in Concord, Massachusetts. After performing field sobriety tests he was arrested for OUI. After carefully reviewing the police reports that he obtained, Attorney Gribouski recommended that his client proceed to trial.

At trial, Attorney Gribouski was able to point out several issues with the prosecution's case during cross-examination of the arresting officer. For example, he established that she did not observe that his client had slurred speech or was unsteady on his feet. Additionally, the officer testified that she did not see the client drive in an erratic manner.  After establishing these favorable facts, Attorney Gribouski was able to rest his case without calling any witnesses. The judge then found his client not guilty of OUI.  


By Darren Griffis 23 Oct, 2017

In a landmark recent decision, Brangan v. Commonwealth , the Massachusetts Supreme Judicial Court held that judges must take a defendant’s financial resources into consideration when setting bail in a criminal case. Moreover, the SJC made it clear that, where the amount of bail appears to exceed a defendant’s financial resources, a judge must provide written or oral findings of fact and a statement of reasons for the bail decision.

This ruling is the result of a challenge to a lower court’s refusal to lower a $50,000 cash bail for a defendant who was confined for three-and-a-half years in Hampden County pending armed robbery charges. In reversing the Superior Court’s denials of the defendant’s requests for a lower bail, the SJC ruled that the judges failed to properly account for the defendant’s financial resources when in setting the amount of bail in the case.

According to the court, judges violate defendants’ due process and equal protection rights when they set bail amounts that have the effect of confining indigent defendants while charges are pending without regard for their financial constraints. Defendants who cannot afford to post bail suffer a loss of liberty during a period when they are supposed to enjoy a presumption of innocence and also lose the ability to fully participate in the preparation of their defense. While the court unfortunately stopped short of requiring judges to set a bail in an amount a defendant can afford, the decision in Brangan made it clear that judges must more clearly delineate the reasons for setting a bail that a defendant will not be able to pay.

Although judges were already required to consider a defendant’s financial resources in setting bail, this ruling should require judges to more carefully weigh that particular consideration, as well as requires judges to provide a statement of reasons when the bail amount exceeds the defendant’s resources.

If you are facing criminal charges, please contact James Gribouski and Darren Griffis at Glickman, Sugarman, Kneeland & Gribouski for more information about how they can put their legal expertise to work for you.


By Darren Griffis 23 Oct, 2017

In August, Massachusetts’ Executive Office of Public Safety and Security (the “EOPSS”) launched an investigation into the Office of Alcohol Testing (the “OAT”), the agency responsible for ensuring the reliability of breath test machines used by police officers in drunk driving investigations. The EOPSS recently released its summary of that investigation, which concluded that the OAT systematically withheld documents from defense attorneys during the pendency of a lawsuit challenging the reliability of breathalyzer test results because of an “unwritten policy not to turn these documents over to any requester.”  The documents that were withheld contained evidence that some of the breathalyzer machines were not properly calibrated during the process used to certify the devices.  

As a result of the investigation, the head of the OAT was fired. The EOPSS report laid the blame for the failure to provide the potentially exculpatory evidence squarely on the leadership of OAT, concluding that the agency committed “serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded . . . and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions.” OAT’s failure to turn over documents allowed prosecutors handling the cases in which defense attorneys were challenging the breath test machines’ reliability to incorrectly represent that the state had complied with its discovery obligations.

Questions about the reliability of the particular breathalyzer (the Draeger 9510) were initially raised in 2015, but were ultimately dismissed by prosecutors, who maintained that any flaws in test results were because of mistakes made by officers in calibrating the machines and not because the machines themselves were malfunctioning. Defense attorneys again raised suspicions about the tests in July after a judge ordered the State to hand over roughly 400 worksheets that accompany breathalyzer calibration checks performed by state chemists, which had strangely not been disclosed by the State. When the missing worksheets were finally turned over, defense attorneys discovered that they documented serious flaws with the results that OAT obtained during the certification process.

The investigation raises series questions about over 58,000 drunk-driving prosecutions in which the Draeger 9510 machines were used. These cases date back to 2011 that and could impact more than 750 defendants over that time period.  A further hearing on the problems with the breath test machines is scheduled for mid-November.

Massachusetts has been involved in a series of scandals involving state laboratories’ failure to properly maintain and analyze evidence. The convictions of two state chemists, Annie Dookhan and Sonia Farak, resulted in the dismissal of more than 21,000 charges against defendants who had drug cases. This investigation by EOPSS and the ongoing litigation regarding the state’s use of the breathalyzer machines is especially critical given that the OAT is the only agency in the state that performs scientific testing that is not audited by an independent accrediting organization.

If you pleaded guilty to, or were convicted of, driving under the influence of alcohol or OUI as the result of breath test results, you may have grounds to challenge your conviction. Although this post does not constitute legal advice, you should contact Attorneys James Gribouski and Darren Griffis at Glickman, Sugarman, Kneeland & Gribouski to find out whether your case may be impacted by the pending investigation.

By gskandg 29 Sep, 2017
September 28, 2017, Central District Court of Worcester, Worcester, Massachusetts Attorney James J. Gribouski’s client, a thirty-two year old Worcester, Massachusetts man was stopped in Auburn, Massachusetts by an Auburn police officer for operating without headlights.  After speaking with the client and detecting a strong odor of fresh marijuana, the client was requested to perform […]
By gskandg 27 Sep, 2017
September 26, 2017, Central District Court of Massachusetts, Worcester, Massachusetts Attorney James J. Gribouski’s client, a twenty year old Assumption College student was stopped by an Assumption College campus police officer for not having any taillights.  After giving him field sobriety tests, the officer arrested the client for OUI/DWI. Attorney Gribouski recognized that the roads […]
By gskandg 27 Sep, 2017
September 26, 2017, Central District Court of Worcester, Worcester, Massachusetts Attorney James J. Gribouski’s client, a twenty-six year old Worcester, Massachusetts woman was stopped by a Massachusetts State Trooper on Harding Street in Worcester, Massachusetts.  After giving the client field sobriety tests, the trooper arrested the client for OUI/DWI. Attorney Gribouski obtained the police reports […]
By gskandg 27 Sep, 2017
Operating a motor vehicle while under the influence (OUI) is a serious offense no matter where you live. But in Massachusetts, the repercussions you may face if you are convicted of this offense can be particularly harsh. A first conviction can get you up to two-and-a-half years in jail, a year-long driver’s license suspension, and […]
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