Opinion 1: Inclusionary zoning is answer to 40B
It's time to repeal 40B. That is exactly the plan currently underway, supported by tens of thousands of Massachusetts residents in every corner of the state, in blue and white collar communities and in cities and towns. The only questions left are why and what next? The 40B statute relies on tired and worn innuendo (opponents of 40B projects are "NIMBYs" and "snobs"), and has been driven for 38 years by real estate developers and others who have long fed at the "pig fest" so aptly described by the commonwealth's inspector general. The statute is punitive, it obliterates all local land use, fiscal and planning control, it ignores the countless other critical issues facing cities and towns today, and it imposes a one size fits all policy that insults the distinctions between Cape Cod and Cape Ann, the Berkshires and the Blackstone Valley.
Even those who believe that the statute was "well intentioned," now admit to widespread abuse. But the statute was never well intentioned. The statute remains a perverse attempt to cram city-like densities, building types and large-scale infrastructure into suburban and rural towns. It has no roots in sound land use planning principles, no counterpart anywhere else in the nation, and it results in the destruction of neighborhoods, marginal lands and any rational reason for why local residents would ever again attend town meeting or city council meetings to adopt or support land use regulations.
It is not disputed that 40B results in the construction of new housing. But at what cost? The commonwealth could have safer roads and cleaner water if the income tax rate was doubled, but I doubt such action would be tolerated. The ends never justify the means in a democratic society, yet 40B remains the ultimate ends versus means legislation. But not for long.
The answer to what's next is easy. Massachusetts must join with the numerous other states that have adopted comprehensive land use planning legislation that enables, cities and towns to impose, among other things, inclusionary zoning requirements and to collect impact fees. States as diverse as California, Maryland and Rhode Island build far more affordable housing than Massachusetts ever will through the use of these techniques. Unlike 40B, which is nothing more than a cynical gift of tax payer dollars to private developers, inclusionary zoning, impact fees and development agreements require developers to participate in the creation of affordable housing, not just profit from it.
40B should have been repealed years ago. The absence of courage on Beacon Hill thwarted past attempts, but no longer. The statute remains an embarrassment and obstacle to the production of true affordable housing. The legislature and the governor have an opportunity to lead - or follow - in the repeal effort.
Jonathan Witten is a lawyer representing many cities, towns and neighborhoods challenging 40B projects. He is on the faculty of the Boston College Law School and Tufts University's Department of Urban and Environmental Policy and Planning.
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