Developer’s reject Newton’s Chapter 40B claim

Developers of a proposed 135-unit apartment complex on Rowe Street in Newton have challenged the city ’s assertion that it has met an affordable housing threshold that would put it outside the parameters of the state’s Chapter 40B affordable housing law.

Scott Oran and Mark T. Dufton filed the challenge with the state’s Department of Housing and Community Development on Dec. 29, a week after Newton’s Zoning Board of Appeals put them on notice that the city had met the requirement.

The state agency is in the process of reviewing the city’s figures for the percentage of its land area taken up by affordable housing, and is expected to decide by the end of this month whether Newton has satisfied the law’s threshold.


Chapter 40B, enacted in 1969, allows developments that include a certain percentage of affordable housing units to bypass most local zoning restrictions in communities that do not meet the law’s criteria.

Communities in which at least 10 percent of the housing stock is considered affordable, or with at least 1.5 percent of the developable land area being used for affordable housing, retain the authority to enforce zoning limits for affordable housing projects.

Newton City Solicitor Donnalyn B. Lynch Kahn reiterated last week she is confident that the city used a conservative formula in determining that 1.88 percent of its land is being used for affordable housing, and that the state will agree with its finding.

Kahn said up until the Rowe Street project, the city used estimated figures to determine the percentage of land used for affordable housing.

“Those were the best numbers we had at the time,” she said. “Once we realized we had the ability to calculate the figures using GIS capability and overlay maps to ensure that land areas were not being over-counted, we were able to hone in on a number that we really have sufficient back-up to support.”


If the state determines that the city has met the threshold, the Rowe Street project and other 40B affordable housing proposals can still go forward.

The focus of the review process would be shifted, however, with the city having a greater ability to address local concerns, said James Freas, Newton’s acting planning director.

In addition, rather than a developer being able to appeal a Zoning Board of Appeals decision to the state Department of Housing and Community Development, it would have to go through state Land Court, which is a potentially lengthier and more costly process.

The 135-unit Rowe Street proposal calls for a mix of studio, one-, two-, and three-bedroom apartments, with 27 to be set aside for households earning below 50 percent of the area’s median income, on a nearly 3-acre parcel in Auburndale and West Newton.

Many nearby residents have opposed the project, saying it would be too big and would exacerbate already dangerous neighborhood traffic conditions, among other concerns.

Ellen Ishkanian can be reached at eishkanian@gmail.com.