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40B, Arlington: A brief, tense history

1969 law lost its way

Massachusetts General Law c40B is a 46-year-old law that contains sections that have lost their way. It was enacted in 1969 in response to a desire to bring uniformity to regional planning. Included were three sections (21, 22, 23) that were to create additional affordable-housing units. Quite controversial, it passed by a single vote. The law is officially known as the Regional Planning Law, with most people seeing 40B as the three sections dealing with affordable housing.

In 2007 and 2010, repeal efforts led by the Coalition for the Reform of 40B, focused on the need to make the affordable-housing sections more productive and viable, as Arlington has done through its programs and bylaws and which the state Legislature has consistently failed to bring out of committee!

Some interesting comments about 40B: Former Governor Michael Dukakis said, "The number of units developed is piddling" and "The whole program is outrageous at this point."

Developer Robert Engler, the self-proclaimed "father of 40B," in a letter seeking developers’ donations for opposing the repeal, stated, "It's for your financial best interests"! Gee, what happened to "we need affordable housing"?

Impact on Arlington

So what is the impact on Arlington of 40B Sections 21 through 23?

The three sections are only four paragraphs in total, but the regulations that govern their application have literally thousands of paragraphs. All focus on disarming a town's ability to plan municipal requirements and control development.

These regulations allow projects that contain affordable units to circumvent local zoning and conservation bylaws, which may impede "fast-tracking" a 40B project. Marginal and problematic sites -- such as Mugar, in Arlington -- become favored by predatory developers, who too often abuse the intent of 40B.

Audits performed by a former inspector general (IG) have involved inexpensive marginal sites that, by using inflated land-value figures, created profits exceeding the allowed profit level. These IG audits uncovered profits of more than $110 million that were never returned to the involved cities and towns, as required by law. Included was an excessive profit cited in an Arlington project. [Sources: IG investigation outcomes (scroll down); Sullivan on YouTube]

History of town's exposure

The 40B law is protected by industry lobbyists. Opponents to the repeal petition raised more than $1 million for their campaign, with significant contributions from out-of-state firms. Ninety percent of donations over $1,000 came from out of state. Interesting that so many out-of-state firms want to support affordable housing in Massachusetts. The majority of dense projects are from such companies.

Arlington's first exposure occurred in 2000 and was so problematic it never got off the ground. The second one in 2005 resulted in providing four affordable units and 16 market-rate units. A third one was so problematic it also was not built. In the intervening years, Arlington's inclusionary zoning bylaws, and the Housing Corporation of Arlington without using 40B, far outstripped the production that the 40B projects offered.

Arlington has done a better job providing affordable housing than most municipalities. Uniquely, the preponderance of our units was provided long before 40B activity accelerated in the late 1980s. So why would a developer invade Arlington with plans for uncharacteristic density? The easiest answer is our hot real estate market, with the potential for rapid sales at premium prices. In addition, the track record of the appeal process for denials skewed to a developer's advantage by a Housing Appeals Court, known to favor developers. These factors make us a prime target!

Positive affordable-housing record

Here's the Town of Arlington’s record: We enacted inclusionary zoning requiring any development of six or more units to include 15 percent affordable. A number of bills seeking that as a state mandate did not get out of committee. Arlington enacted a bylaw requiring all affordable units, by deed, were to remain so in perpetuity. Again, state bills stipulating perpetuity failed to emerge from committee. The town voted to establish a housing corporation to redevelop properties as affordable units and provide support through Community Development Block Grants. And for the second session in a row, I have submitted a bill seeking an increased percentage of affordable units in a 40B project.

To put our position in perspective, let’s see where Arlington is in the big picture of Massachusetts’ affordable-housing status. Of the 351 cities and towns, only 35 percent (144) have an equal or higher percentage (over 5.6 percent) of affordable units. Of that number, only 8 percent (29) exceed Arlington’s total number of housing units and 7 percent (24) off these are cities. We are an exemplary town in the provision of affordable housing.

What have the town’s efforts accomplished? Of the 351 cities and towns, Arlington has the 11th highest number of public-housing units. (The other 10 are primarily our gateway cities.) Even more significant, Arlington's public-housing numbers per 1,000 citizens places us as No. 1 in the state. At 5.6 percent affordable, only 11 percent of 351 cities and towns have a higher number toward the mandated 10 percent. With 1.5 percent of our land area already containing affordable units, as I calculate it, Arlington would be only the third town to attain that level. Rather astounding considering we are the third densest town in the Commonwealth. 

Note to ZBA: Get ready

Arlington's governing bodies would be remiss if the recently proposed, 219-unit Mugar project is allowed. Arlington, much as many 40B-victimized towns, is not equipped with the expertise and knowledge that a developer's legal and technical resources will bring to the table. I am not belittling our boards, committees or staff. Having been involved over the past 15 years with hundreds of towns, I find Arlington teams as dedicated, intelligent and capable as any with which I have worked.

40B is a complex process, and a remark by developer Engler in a documentary interview sums it up: "Zoning Appeal Boards do not have the expertise required for 40B projects; there is expertise available for the towns to buy." Easier said than done! With the constricted time frames imposed by 40B and the budget crunch that most towns experience, difficult decisions all too often result in conceding to developers’ demands.

The Mugar site has too many adverse impacts on East Arlington neighborhoods, including traffic, schools, municipal services, flooding and local planning. This project is too large to be considered, and a failure by the Zoning Board of Appeals to reject it would be a travesty.

I believe Arlington has more than enough reasons and tools to make this a winnable denial. If those who govern us don’t work to deny the Mugar project, and if it arrives before the ZBA, I plan to join a number of our citizens that have significant degrees of expertise and 40B knowledge to provide defenses that will make for the Mugar team what an old curse attributed to the Chinese says: "May you live in interesting times"! 


This viewpoint was published Thursday, April 2, 2015.

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