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The Argument

Should the state do away with Chapter 40B?


Jonathan Witten , of Duxbury, a lawyer and land-use planner who teaches at Boston College Law School and Tufts University’s Department of Urban and Environmental Policy and Planning

Supporters of the comprehensive permit statute rely on tired rhetoric: Opponents of Chapter 40B projects are “NIMBYs” and “snobs.” But the truth is that the statute is driven by those who have long fed at the trough of 40B -- the “pigfest,” as it was characterized by the Commonwealth’s former inspector general.

The statute is punitive; it obliterates local land-use and fiscal control and imposes a one-size-fits-all policy that insults the distinctions among the state’s 351 municipalities.


Although cloaked in unassailable objectives, the statute perversely attempts to cram city-like densities and large-scale infrastructure into suburban and rural towns. It has no roots in land-use planning principles, no counterpart in the nation, and results in the destruction of neighborhoods and marginal lands from Gloucester to the Berkshires.

The solution is easy. States as diverse as California and Rhode Island build more affordable housing than Massachusetts through burden sharing between the developer and the community. Unlike Chapter 40B — which is nothing more than a gift of taxpayer dollars to private developers — these states, and many others, require developers to participate in the creation of affordable housing, not just profit from it.

The Legislature continues to ignore the havoc the statute has wrought upon cities and towns. Incapable of observing the successes in other states regarding the production of affordable housing, the Commonwealth clings onto an almost 50-year law written by urban legislators to punish Boston’s suburbs for supporting efforts to integrate Boston’s public schools.

As with most bad laws, 40B will soon be remembered as a sad chapter in Massachusetts’ byzantine politics. An enlightened Legislature — with leadership from the new governor — will replace the statute with the tools so successfully used elsewhere in the United States.


Rather than cities and towns fighting developers and their projects, development consistent with adopted municipal master plans will be welcome. Rather than real estate speculators destroying municipal zoning with developments of unlimited density — and lining their pockets at the expense of municipal residents — developers will become part of the solution, not just another obstacle in the production of meaningful affordable housing.


Michael McGowan, of Scituate, president of South Shore Housing, a Kingston-based nonprofit affordable-housing and related services agency serving Bristol and Plymouth counties

We are all concerned that our adult children can’t afford to live in their hometowns and that elderly residents have few affordable options when they can no longer maintain and sustain their homes. We also know that our communities and our economy are weaker because police officers, teachers, service workers, and other moderate-income workers can’t afford to live in our towns.

Addressing these issues will require all the tools at our disposal to develop and preserve moderately priced housing in all of our communities, and no existing tool has been more effective in this regard than Chapter 40B, Massachusetts’ affordable-housing law.

Chapter 40B was enacted in 1969 to address local zoning and land-use restrictions that make it impossible or economically infeasible to build affordable housing in many communities. Since then, South Shore Housing has developed over 200 affordable apartments and owner-occupied homes in Carver, Kingston, Marshfield, Plympton, and other communities under 40b. In most of these cases, we worked cooperatively with the towns on these developments.


Those 200 units have been South Shore Housing’s small contribution to the over 60,000 affordable homes built in Massachusetts through 40B. According to Citizens’ Housing and Planning Association, 78 percent of all new affordable-housing units were produced in rural and suburban communities between 1997 and 2010. And best of all, many of these projects required no state housing subsidies.

It’s for all these reasons that residents across the state voted by a 58 percent to 42 percent margin in 2010 to retain the law when it was challenged through a ballot initiative.

That’s not to say that there aren’t bad 40B project proposals or that the law can’t be improved. I’ve opposed 40B project proposals in my hometown of Scituate because of their scale, design, location, and environmental impact. But that’s not a reason to oppose the law. Instead, communities with low percentages of affordable housing should develop and implement plans to increase their affordable-housing stock. Scituate has a housing production plan to give the town more control over housing development. In Scituate and other communities, Chapter 40B will be a critical tool in such plans.

As told to Globe correspondent John Laidler. He can be reached at