Newton is a liberal bastion whose politically ambitious mayor, Setti Warren, talks a great game on affordable housing. So why are the city’s lawyers trying so hard to defang Chapter 40B, the state’s most important affordable-housing law? And why is the construction of subsidized units in Newton happening at so glacial a pace?
“For the first time in a generation,” Warren said in an interview, “Newton is being proactive in housing.” He’s sponsoring an “open house” on the subject at Newton North High School Sunday afternoon. The city’s plan to remake a public parking lot in Newtonville as a mixed-use complex, one with 17 below-market-rate units, is a textbook example of smart growth.
Yet Newton’s recent record of accomplishment on affordable housing is as spotty as its plans are forward-looking: Two years ago, a proposal for nine apartments for formerly homeless people degenerated into a divisive citywide spectacle, until Warren finally pulled the plug. In a city with nearly 90,000 people and a median home price of $941,000, a total of 17 new affordable units have been completed in the last five years; about 70 more have been approved, but some of those projects may still face funding or legal challenges.
On June 5, the companies behind two stalled projects filed a complaint against the city with the federal Department of Housing and Urban Development. They argue that the bazillion ways in which neighborhood opponents and city officials can derail new housing construction add up to a major violation of federal fair-housing laws — and that Newton has assured HUD it’s remedying inequities in the housing market while doing the opposite.
One of the projects, by Boston-based Cabot, Cabot & Forbes, is an innovative effort to retrofit part of an aging office park as a mixed-use community with 334 housing units; the other, by Newton-based Marcus Lang Investments, is a small five-unit project on Goddard Street. Both projects would include some subsidized units. Both had been proposed under Chapter 40B —an anti-snob-zoning law that gives housing developers some recourse when NIMBYish local boards turn them down.
Newton has rejected both projects, on different grounds. And it’s trying to wiggle out of 40B altogether.
Alas, land-use laws are often hard to summarize in plain English. So take a swig of coffee and read on. Chapter 40B helps developers by letting them challenge unfavorable decisions at the local level by going to the state, which has a strong interest in getting more housing built. The law doesn’t apply in cities and towns where more than 10 percent of the housing units are subsidized, but Newton is 800 units short of that target.
On to plan B: In the last couple of years, a few communities have zeroed in on a different escape hatch in the law, a previously obscure provision exempting cities and towns that have set aside more than 1.5 percent of their land for affordable housing. In December and January, Newton’s zoning board cited this rule to block two 40B projects, including the one on Goddard Street.
The developers in both cases appealed to the state’s Department of Housing and Community Development, which rejected Newton’s argument. After a similar verdict, the Town of Milton didn’t appeal. Newton, however, is girding for a long legal battle.
Warren said adopting this strategy wasn’t up to him. “The bottom line is, I don’t control whether 1.5 is invoked or not,” he said. It was the Zoning Board of Appeals that did so, he said, with help from hard information gathered by the city’s planning and law departments.
Then again, Newton’s mayor appoints the Zoning Board of Appeals as well as the planning chief. Meanwhile, the math in question requires a lot of subjective judgments. Do golf courses count as developable land? How do you classify a huge parcel with a tiny affordable-housing building on it? Newton’s stance suggests that future 40B developers risk getting pulled into a drawn-out legal fight about the status of every parcel in town. “If Newton gets away with this, every other city in the Commonwealth is going to do the same,” says Mark Schwarz of Marcus Lang Investments, “and affordable living will be stopped in its tracks.”
Housing advocates are aghast, as they should be. “Like the rest of Greater Boston, Newton desperately needs more rental housing,” Massachusetts Smart Growth Alliance executive director Andre Leroux said in an e-mail. “Instead, it’s basically telling its neighbors, ‘We’re not willing to do our fair share.’ ”
Whether Newton’s stance will cause trouble with HUD is unclear; the agency hasn’t yet taken any action on the developers’ complaint. (For what it’s worth, Warren wouldn’t comment on the filing, calling it a matter under litigation; city solicitor Donnalyn Kahn called it “kind of outrageous” but declined to say more.)
Unfortunately, exclusionary development policies can persist long past the point that they start damaging a city’s economy. If not for 40B, Newton and many other suburban communities would have even fewer affordable units than they do. Newton voters understood all this in 2010, when they opposed the repeal of 40B by a lopsided 72-28 margin.
If Warren has better ideas about how to produce affordable housing, and can sell the rest of Newton on them, then all power to him. Until then, the city he leads should drop its fight against a proven law.