Blog Post No. 2010-18: Vote No on Question 2

Stepping out of RTUF's general attempt to be neutral (or at least appear neutral) in all things...

In my day job, I recently helped organize and moderated a panel at a continuing legal education program at the Boston Bar Association regarding Question 2 on this year's Massachusetts fall election ballot. If passed by the voters on November 2nd, Question 2 would repeal Massachusetts General Laws Chapter 40B, Sections 20-23, variously known as the "Anti-Snob Zoning Act," "the Affordable Housing Law," the "Comprehensive Permit Act," or simply and somewhat misleadingly (since there are clearly many other sections within the chapter) "Chapter 40B." Boiled down, the law, which entered its existence in 1969 (the same year as your correspodent's own birth), does essentially 3 things:

1. Establishes an affordable housing "fair share" target of 10% for each and every city and town in the Commonwealth.
2. Provides that projects including at least 20-25% of their units as qualifying "affordable units" proposed in a city or town that is below the fair share target may seek a "Comprehensive Permit" from the local Zoning Board of Appeals that consolidates multiple local permits in a single decision and may override local zoning and other regulations.
3. Allows a Comprehensive Permit applicant to seek relief from an adverse local ZBA decision in the Housing Appeals Committee, a special state administrative forum that strongly favors approval of proposed projects.

I won't go into all of the back-and-forth on Chapter 40B's original intent, its somewhat checkered recent past, or the literally hundreds of previous legislative proposals for its repeal or radical revision over the decades. Suffice it to say here that Chapter 40B has been quite effective at delivering substantial numbers of mixed-income projects all across the Commonwealth's suburban communities. Suffice it here to also say that it has also evolved into virtually the only mechanism for getting any multi-family or even small lot residential development done in those communities. Quite simply: Chapter 40B or the threat of a proposed project "going" Chapter 40B has been the only way to build anything other than large-lot single-family developments in those same communities.

All of that being the case, and the Commonwealth facing a housing affordability challenge that hasn't been significantly lessened in the recent Great Recession (because we've lost less value in comparison to other regions of the country), the argument can and has been made that Chapter 40B's survival is more critical now than ever. And even if one were to accept the argument that Chapter 40B is too blunt an instrument -- what with its single fair share housing target and meat axe approach to overriding local regulation -- to survive in this more enlightened age, you still have the problem of what you're going to do to achieve the same affordable housing goals. Jon Witten, the Duxbury attorney who is the prime legal mover among repeal proponents, has advocated in print (and at the above-mentioned CLE) that we can achieve the same ends as Chapter 40B with a rational, comprehensive planning and zoning system, something we currently lack in Massachusetts as a statewide matter. Now, far be it from RTUF to denigrate planning, but there are plenty of places with comprehensive planning and zoning systems that still have housing affordability issues. But even if one accepts that argument, it is still true that approving Question 2 would only achieve the first part of the bargain -- doing away with the exsiting law. Until Question 2's proponents can come up with a second part of the bargain -- a workable system to achieve the same ends -- and are willing to pair it on the ballot with repeal so that they are unalterably linked, you may rest assured that this Massachusetts voter will be voting no.

DISCLAIMER: This blog post represents the author's own opinion and not the opinion of the Boston Bar Association or any other private, non-profit, or public entity with whom the author is associated or by whom the author is employed.