40B Introduction

What is 40B?
Massachusetts General Laws Chapter 40B is designed to facilitate construction of affordable housing in communities where less than 10 percent of its housing stock is affordable (accessible to low and moderate income levels).  Weston's affordable housing stock is less than 4 percent as defined by the state.  Under Chapter 40B, developers are able to ignore certain local zoning laws, including specifically the allowable density, as long as 20 to 25 percent of the units being built meet the state’s definition of affordable.  The law provides only limited opportunity for the local town or city officials to alter the developer’s plans. 

Friendly or Hostile?
There are two paths developers can pursue for their 40B development — friendly or hostile.  In a friendly 40B development, also known as a LIP (or Local Initiative Petition), the developer works cooperatively with town boards to minimize density, improve setbacks, or blend architectural aesthetics with the neighborhood. An example is the Town-owned Warren Avenue Project and also housing built by the non-profit organization Weston Affordable Housing Foundation Inc. (WAHFI).

If the town and developer cannot work cooperatively, the developer can pursue a hostile 40B in which case the project is reviewed by the state, rather than local officials. Current hostile 40B proposal plans in Weston are available online. These types of developments tend to be very dense, out of character, and do not comply with Weston's zoning by-laws. 

To date, Weston has had luck in working with developers to produce friendly 40B projects, but within the last year the Town has encountered three hostile 40B proposals. These are problematic for Weston due to the high price of land. In order for developers to make a profit, the developments are incredibly dense and ignore zoning set-backs.

The 10 Percent
The 10 percent calculation is based upon the total housing inventory, per the national census. Housing units that are built and deed restricted as affordable (accessible to incomes at or under the 80 percent area mean income level) are eligible for inclusion on the state's Subsidized Housing Inventory (SHI); however, the state values rental units over for-sale units and as such in a development where all units built are rental, all units will count towards the SHI. For example, a 20-unit housing development where the homes are for-sale, only the houses specifically set aside as affordable will count (25 percent or 5 units) towards the SHI. If that same 20-unit housing development were rental units, all 20 units will count towards the SHI. 

The rental vs. for-sale is important because all of the units built go towards the total housing inventory, which affects the 10 percent calculation.  A 20-unit for-sale development increases the total housing stock by 20 but only adds 5 to the SHI whereas rental units provides a more even distribution of 20 units to each list and reaching the 10 percent goal faster.

Safe Harbor
When a town is below the required 10 percent, leaving it susceptible to hostile 40B developers, the town has an option to proactively plan for developing affordable housing on its own terms by creating a state-approved Housing Production Plan. When this plan is put into action, meaning the town is moving forward in building, the plan becomes certified. A state-certified plan then gives the town "Safe Harbor" status, which protects the town from hostile 40B developments.