Chapter 40B is a state statute that facilitates construction of low- and moderate-income housing. It establishes a consolidated local review and approval process, known a comprehensive permit, which empowers a municipality's board of zoning appeals (BZA) to hold hearings and make binding decisions that encompass all local ordinances and regulations.
In certain circumstances, a BZA's comprehensive permit decision may be appealed to the Massachusetts Housing Appeals Committee (HAC). The HAC has the power to affirm, modify, or overturn local decisions. State regulations create some "safe harbor options" that allow a BZA to deny a comprehensive permit without risk of its decision being overturned. These provisions are intended to recognize a community’s efforts to create low- or moderate-income housing, so in most cases they create some breathing room.
|Project Eligibility (PE) App.||Comprehensive Permit App.||Public Hearing Date|
Edison St & Hyde Sts
Ryder Development Corp. (09/26/2019)
345 Ralph Talbot St
Ryder Development Corp. (04/04/2018) - DENIED
Intent of Chapter 40B
The purpose of Chapter 40B is to ensure that low- or moderate-income housing is available in all market areas in the Commonwealth. This objective is achieved with a consolidated permitting process that not only prevents cities and towns from blocking or impeding low- or moderate-income housing through zoning, but further allows developers to override regulatory barriers that make housing expensive to build. In effect, Chapter 40B promotes regional distribution of low- or moderate-income housing by enabling developers to override local zoning ordinances or bylaws.
Stages of a Chapter 40B Project
There are five stages for every Chapter 40B development:
- Project Eligibility Determination (Site Approval)
- Comprehensive Permit Process
- Final Approval
- Construction and Occupancy
- Post-Occupancy Oversight
Stages 1 and 2 are the most important for public comment.
Project Eligibility Determination (Site Approval)
Before submitting a comprehensive permit application, a developer must comply with Chapter 40B's pre-qualification requirements. The mechanism for meeting these requirements is known as Project Eligibility (PE) determination, or Site Approval.
Site Approval authority lies exclusively with Massachusetts' four subsidizing housing agencies. These include MassDevelopment, MassHousing, the Massachusetts Housing Partnership, and the Massachusetts Department of Housing and Community Development (DHCD).
When a developer submits a Site Approval application, the Subsidizing Agency notifies the municipality's Chief Executive Officer and schedules a site visit. This notification starts the clock on a 30-day public comment period. This period is an opportunity for the municipality to organize a coherent response to the developer's Site Approval application.
It is important to remember that Subsidizing Agencies want to encourage low- and moderate-income housing, so it is unrealistic to expect them to issue a denial simply because a community objects to a proposed development. The most constructive community response typically focuses on matters that clearly fall within the Subsidizing Agency’s decision criteria, which are listed in 760 CMR 56.04.
Comprehensive Permit Process
If Site Approval is granted, the developer is free to submit a comprehensive permit application to the municipality's BZA. Receipt of this application starts the clock on a number of critical deadlines, including the opening and closing of a public hearing. Find a list of Chapter 40B deadlines here.
A municipality's BZA must issue a decision on a comprehensive permit application no later than 40 days following the close of its associated public hearing. This decision must be approved by a majority of the BZA members sitting on the case.
Chapter 40B authorizes a BZA to approve an application as proposed, approve with conditions, or deny a comprehensive permit application. The Housing Appeals Committee will uphold a local denial of a comprehensive permit if a municipality meets one of the safe harbor provisions under the Chapter 40B regulations. The most common safe harbor provisions include:
- The number of low- or moderate-income housing units within the municipality is more than 10% of the total number of housing units reported in the most recent federal (decennial) census.
- Low- or moderate-income housing exists on sites comprising 1.5 percent or more of the municipality's total land area zoned for residential, commercial, or industrial use.
- The municipality has met DHCD’s “recent progress” threshold (760 CMR 56.03(1)(c) and 56.03(5)). This means that within the last 12 months, the municipality has created new subsidized housing units equal to or greater than 2% of the total year-round housing units reported in the most recent federal census.
- The municipality has a DHCD-approved Housing Production Plan (HPP) and has been granted a certification of compliance with that plan. To become certified, the municipality must increase its number of low- or moderate-income housing units during a single calendar year in an amount equal to or greater than the number enumerated in its approved HPP.
Except for these circumstances, the Housing Appeals Committee has generally not supported a BZA's denial of a comprehensive permit application. If the BZA denies a comprehensive permit or approves it with conditions unacceptable to the developer, the aggrieved applicant can file an appeal with the Housing Appeals Committee. Other parties seeking to challenge a comprehensive permit decision may file an appeal with the Superior Court or Land Court pursuant to Chapter 40A, Section 17 of the Massachusetts General Laws.