New Wrinkle For Divisive Housing Law | Updated 40B rules allow some non-residential uses
There is probably no Massachusetts land use law more controversial than Chapter 40B, the state’s “anti-snob” zoning law.
Now, opponents of the law say, it’s primed to get even more contentious.
Chapter 40B requires communities where less than 10 percent of the housing stock is considered “affordable” to permit residential developments that violate some of the normal zoning regulations, as long as at least a quarter of their units are affordable. But in a new twist, the state Department of Housing and Community Development tweaked its regulations to allow some commercial uses in the developments as well.
In the Details
The DHCD made the changes in February after the state Supreme Judicial Court ruled that an Ipswich apartment complex including a day care and some other limited commercial uses was acceptable under 40B.
Bill Reyelt, the smart growth program coordinator for DHCD, said the changes will probably have little effect on 40B projects. He said they’re intended to formally allow the addition of small coffee shops, convenience stores, dry cleaners and health clubs at large residential developments. Before this, he said, the law didn’t address that sort of ancillary business one way or the other.
“This was an attempt to at least clarify that a little bit,” he said.
But supporters of local land-use oversight warn that the new language could allow much more significant commercial development.
In an article in the Boston College Environmental Affairs Law Review, Cotuit lawyer Jonathan Witten wrote that regulatory language allowing “ancillary” nonresidential uses as long as they complement the residential uses and foster “vibrant, workable, livable…” neighborhoods is too vague.
“After all,” Witten wrote, “Wal-Mart, liquor stores, and movie theaters certainly add to the vibrancy, workability, livability, and attractiveness of neighborhoods – at least from the perspective of the developer.”
So far, both opponents and proponents say the new regulations have not been tested. But Fred Marcks, a spokesman for the Massachusetts Slow Growth Initiative, a loose coalition of local groups based in Acton, said developers may have an incentive to try a 40B development with a large commercial component these days.
“40B is a market-driven solution to housing, and the market is slowing down,” he said.
Marcks said his group worries about sprawl, the impact of new development on roads and sewers and further loss of local control.
But Reyelt said the slow-growth advocates have little to worry about. Any proposal for commercial development that was obviously not “incidental” to a residential project would be shut down by the local zoning board of appeals, or in the appeals process if it came to that, he said. Reyelt said the restrictions might be less firm in cases where the underlying zoning in an area slated for development already allows commercial projects in strictly residential areas, but the new rules shouldn’t mean much change in what’s ultimately allowed.
“I’m sure at some point that somebody will push the envelope too far and then we’ll get some greater clarity on it,” he said.
But Marcks said the Slow Growth Initiative isn’t comfortable waiting for the results of a complicated review process.
“I think we all are distrustful of allowing regulations to be so vague as to just leave it up to a proponent of a project,” he said.
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