* Mark Bobrowski is a Professor of Law at the New England School of Law in Boston, Massachusetts, where he teaches Land Use, Property, Local Government, and Administrative Law. He has served as an adjunct professor at the law schools of Northeastern University and Boston College. He is the author of the Handbook of Massachusetts Land Use and Planning Law, published by Aspen and supplemented annually. Governor Romney appointed Mr. Bobrowski as a member of the Affordable Housing Task Force in 2003. The author wishes to thank New England School of Law students Megan Chuk, Kendra Stephenson, John Reuhrwein, along with Adam Costa, for their help in researching this Article.

1 Anthony Flint, Open Space, Not Housing, Is Priority, Boston Globe, Feb. 16, 2003, 2003 WL 3380467; Kenneth Rapoza, Balancing Affordable Housing, Open Space, Boston Globe, Jan. 6, 2002, 2002 WL 4105230.
2 See President Lyndon Johnson, Great Society Speech (May 22, 1964).
3 See Thomas Grillo, Affordable Housing: The Debate Goes On, Boston Globe, Jan. 20, 2002, at H1.
4 Recent comprehensive permit applications in Sherborn and Cohasset are examples. The Cohasset application proposes a surface water discharge permit to send wastewater to a nearby wetlands, and, then, downgradient to tidal waters rated “B.”
5 See generally Jonathan Douglas Witten, Carrying Capacity and the Comprehensive Plan: Establishing and Defending Limits to Growth, 28 B.C. Envtl. Aff. L. Rev. 583 (2001) (discussing how the Massachusetts scheme implements an all-or-nothing approach, which ensures affordable housing at the expense of any environmental regulation).
6 Id. at 599.
7 Low and Moderate Income Housing Act, Mass. Gen. Laws ch. 40B,  20–23 (2000).
8 The Subdivision Control Law, Mass. Gen. Laws ch. 41,  81K–81GG (2000).
9 The Zoning Act, Mass. Gen. Laws ch. 40A (2000).
10 See H.R. 4284, 182d Gen. Court (Mass. 2001) (amendments proposed by the senate were rejected by the house, thus terminating the bill’s consideration).
11 See Mass. Regs. Code tit. 760,  45.00 (2002).
12 Home Resales Decline, BOSTON GLOBE, Jan. 4, 2003, at G1.
13 Scott Bernard Nelson & Chris Reidy, New-home Sales Set Month Mark But 27% Decline in Northeast May Mean a Slowdown Looms, BOSTON GLOBE, Dec. 28, 2002, at C1. The sale of new homes constitutes approximately fifteen percent of total sales nationwide. Id.
14 Advocates Tackle Massachusetts Housing Crisis, Equitable Dev. Toolkit (PolicyLink, Oakland, Cal.), Nov. 2002, at http://www.policylink.org/equitabledevelopment/ (last visit-ed Mar. 10, 2003).
15 Edward Moscovitch, Ph.D., Why Are Massachusetts Home Prices So High?, Housing Debate (Mass. Hous. P’ship Fund, Boston, Mass.), Spring 2001, at 1, available at http://www. mhp.net/termsheets/moscovitch_paper.pdf (last visited Mar. 25, 2003).
16 Thomas Grillo, A Level Playing Field? That May Be the Most Buyers Expecting a Big Drop in Home Prices Can Expect, Boston Globe, Jan. 5, 2003, at J1.
17 Aaron Gornstein & Jim Gomes, Editorial, Growth Can Be Green, Boston Globe, Jan. 2, 2003, at A15.
18 Grillo, supra note 16, at J1.
19 In addition to the three named cities, the Boston neighborhoods of Dorchester, Mattapan, Hyde Park, Roxbury, and East Boston had median sale prices below $250,000 in 2002. Thomas Grillo, Priced Out?, Boston Globe, Oct. 6, 2002, at G1.
20 Only 56 of 161 cities and towns in the Boston Metropolitan Statistical Area (MSA) had a median home sale price under $250,000 in 2001. Ryan Allen et al., Boston Found., The Greater Boston Housing Report Card 2002, at 23 (2002), available at http://www. chapa.org/completedraft.pdf (last visited Apr. 6, 2003).
21 Anthony Flint, Home Costs Tied to Construction Dip, Prices Rise by 50% in Region Since ’98, Boston Globe, Oct. 1, 2002, at A1.
22 Allen et al., supra note 20.
23 Lew Sichelman, Study: Boston’s High Prices Won’t Hold Up Indefinitely, Boston Globe, July 13, 2002, at G1.
24 Moscovitch, supra note 15, at 1. According to Dr. Moscovitch, “The fierce resistance of New Englanders to housing construction, and the way this translates into delays and extra legal costs for would-be developers, is undoubtedly a major factor in explaining high housing prices here.” Id. at 5. Dr. Moscovitch also commented that “local requirements make it impossible to build any multi-unit housing in some communities, and calculated that for 16 towns studied in detail, current zoning and other regulations require new development no more than half as dense as existing development.” Id. (citing Mass. Office of Admin. & Fin., Policy Brief Series No. 5, Reducing Local Restrictions on Housing Development (2000). These sentiments have long been a standard refrain of the development community. See, e.g., Kelly Elder, Warren Group, Open Space vs Development (2002), at http://www.thewarrengroup.com/home/wp/gbb/gbbFeb2002/1602-04200200001.asp (last visited Mar. 10, 2003).
25 The State’s poor showing comes while home construction has surged nationally. There were 1.835 million new units developed nationwide in 2002, of which 1.705 million were single family homes. That constituted the best year for the housing industry since 1986. Home Construction Surges in December, Boston Globe, Jan. 25, 2003, at E1.
26 Allen et al., supra note 20, at 5.
27 Id. at 6.
28 Sierra Club, Environmental Update, Sprawl Losses Staggering, http://sierra-club.org/sprawl/articles/USDAreport.asp (last visited Feb. 7, 2003).
29 Nat’l Res. Conservation Serv., U.S. Dep’t of Agric., 1997 Natural Resources Inventory Summary Report 1 (2000), available at http://www.nrcs.usda.gov/technical/ NRI/1997/summary_report/ (last visited Feb. 7, 2003).
30 See F. Kaid Benfield et al., Natural Res. Def. Council, Paving Paradise: Sprawl and the Environment, at http://www.nrdc.org/cities/smartgrowth/rpave.asp (last visited Feb. 7, 2003).
31 Id.
32 Id.
33 Id.
34 Gornstein & Gomes, supra note 17, at A15.
35 Cmty. Pres. Coalition, CPA Advocacy—The Status Quo, at http://www.com-munitypreservationcoalition.org/frighteningfacts.htm (last visited Feb. 7, 2003).
36 Mass. Executive Office of Envtl. Affairs, Protection of 100,000 Acres of Open Space 5 (2001), available at http://www.state.ma.us/envir/openspace/pdf/Intro-duction_jwp3.pdf (last visited Mar. 9, 2003).
37 Citizens Hous. & Planning Ass’n, Housing Briefs: February 7, 2003 DHCD Budget Reduced and House Cuts Trust Fund (2003), at http://www.chapa.org/ news_02-07-03.htm (last visited Mar. 9, 2003).
38 ALLEN ET AL., supra note 20, at 7.
39 Cosmo Macero, Jr., On Housing, Bay State’s Not at Home, Boston Herald, Nov. 22, 2002, at 35, 2002 WL 4092972. The article states:
State funding for affordable housing slid by more than $20 million last year, with the budget crunch promising little if any relief. In fiscal 2002, the state spent $150 million on housing creation, far short of [former Cardinal Bernard] Law’s proposal, and that spending slipped to just $120 million budgeted for the current fiscal year.
Id. (emphasis added).
40 Mass. Executive Office of Envtl. Affairs, supra note 36, at 5.
41 Proposition 2 was passed by general referendum in 1980. Most notably, it reduced the amount of taxes cities or towns can assess on real property to no more than 21/2%. Mass. Gen. Laws ch. 59,  21(c) (2000). Thus grew the colloquialism “Proposition 21/2.” Mass. Teachers Ass’n v. Sec’y of Commerce, 424 N.E.2d 469, 473 n.4 (Mass. 1981).
42 Community Preservation Act, Mass. Gen. Laws ch. 44B,  1–17 (2000).
43 Id.  6.
44 The Zoning Act, Mass. Gen. Laws ch. 40A,  9 (2000). The case law offers only two decisions that touch on this clause of section 9, neither of which are particularly relevant. See generally Iodice v. City of Newton, 491 N.E.2d 618 (Mass. 1986); Middlesex & Boston St. Ry. v. Bd. of Aldermen, 359 N.E.2d 1279 (Mass. 1977).
45 Not to be confused with the definition of “cluster development” in the statute. Mass. Gen. Laws ch. 40A,  9. “Cluster,” as defined therein, means:
[A] residential development in which the buildings and accessory uses are clustered together into one or more groups separated from adjacent property and other groups within the development by intervening open land. A cluster development shall be permitted only on a plot of land of such minimum size as a zoning ordinance or by-law may specify which is divided into building lots with dimensional control, density and use restrictions of such building lots varying from those otherwise permitted by the ordinance or by-law and open land. Such open land when added to the building lots shall be at least equal in area to the land area required by the ordinance or by-law for the total number of units or buildings contemplated in the development. Such open land may be situated to promote and protect maximum solar access within the development. Such open land shall either be conveyed to the city or town and accepted by it for park or open space use, or be conveyed to a non-profit organization the principal purpose of which is the conservation of open space, or to be conveyed to a corporation or trust owned or to be owned by the owners of lots or residential units within the plot. If such a corporation or trust is utilized, ownership thereof shall be recorded providing that such land shall be kept in an open or natural state and not be built for residential use or developed for accessory uses such as parking or roadway.
Id. See, e.g., New Seabury Corp. v. Bd. of Appeals, 550 N.E.2d 405, 407–08 (Mass. App. Ct. 1990); DiPaolo v. Bradstreet Land Dev. Corp., 500 N.E.2d 1352, 1353 (Mass. App. Ct. 1986); Owens v. Bd. of Appeals, 418 N.E.2d 635, 637–38 (Mass. App. Ct. 1981). This older variation of “cluster” does not authorize the trades discussed herein.
46 5 Edward H. Ziegler, Jr. et al., Rathkopf’s The Law of Zoning and Planning  90:49 (West Group, 4th ed. 2001).
47 Mass. Gen. Laws ch. 40A,  9.
48 Roads are quite expensive to build, with prices approaching $400 per linear foot in some suburban communities.
49 For example, see the zoning bylaws of the Towns of Westford, Andover, and Groton.
50 Mass. Gen. Laws ch. 40A,  9.
51 This statute states: “Such zoning ordinances or by-laws shall state the specific improvements or amenities or locations of proposed uses for which the special permits shall be granted, and the maximum increases in density of population or intensity of use which may be authorized by such special permits.” Id. The local legislature, therefore, must choose open space or affordable housing (or both) when the ordinance or bylaw is adopted.
52 Id.
53 The database Ordinance.com was used to conduct this research, which complimented earlier studies done by Philip B. Herr & Associates for the Massachusetts Housing Partnership Fund, and Christopher Skelly for the Massachusetts Historical Commission. See generally Philip B. Herr & Assocs., Mass. Hous. P’ship Fund, Zoning for Housing Affordability (2000); Mass. Executive Office of Envtl. Affairs, Preservation Through Ordinances and By-Laws, Chapter Three: Open Space Zoning (2001). The information contained in the tables of these two reports was verified by researching individual ordinances and bylaws in Ordinance.com, a subscription database containing all local zoning and subdivision regulations. In addition, the following terms were used to search Ordinance.com in order to find additional communities that have adopted cluster-type provisions for open space protection: open space, flexible development, major residential development, cluster, and conservation subdivision. Philip B. Herr and the Massachusetts Housing Partnership Fund have kindly allowed portions of the data contained in the 2000 Study to be reprinted herein, for which I am most grateful.
54 See generally Christopher C. Skelly, Mass. Historical Comm’n, Preservation Through Bylaws and Ordinances: Tools and Techniques for Preservation Used by Communities in Massachusetts (2002), available at http://commpres.env.state.ma.us/ content/publications.asp (last visited Mar. 9, 2003).
55 Mass. Executive Office of Envtl. Affairs, supra note 36.
56 See Mark Bobrowski, Table of Massachusetts Communities and Affordable Housing Units (unpublished table, on file with the Boston College Environmental Affairs Law Review until May 2004).
57 See id.
58 It should be noted that Boston is not governed by the statute; the City produces affordable units pursuant to its own enabling legislation and zoning code.
59 See Philip B. Herr & Assocs., supra note 53.
60 See id.
61 Id. at 16–17.
62 Id. at 13.
63 See Dept. of Hous. & Cmty. Dev., Ch. 40B Subsidized Housing Inventory Through October 1, 2001, at 1–8 (2002), at http://www.state.ma.us/dhcd/components/hac/HsInvRev.pdf (last visited Apr. 4, 2003) [hereinafter DHCD Inventory].
64 Mass. Executive Office of Envtl. Affairs, supra note 36.
65 DHCD Inventory, supra note 63.
66 See The Zoning Act, Mass. Gen. Laws ch. 40A,  9, 11 (2000).
67 In those communities that do not specify affordable housing as an option, the choice for open space has already been made by the local legislature at the time of adoption of the ordinance or bylaw.
68 Community Preservation Act, Mass. Gen. Laws ch. 44B,  1–17 (2000).
69 Id.  3(b).
70 See id.  3(b), (f).
71 See id.  6–7.
72 Id.  5(a).
73 See id.
74 Community Preservation Act, Mass. Gen. Laws ch. 44B,  5(b)(2) (2000).
75 Id.
76 Id.
77 Id. “Community housing” is defined as “low and moderate income housing for individuals and families, including low and moderate income senior housing.” Id.  2.
78 Id.  5.
79 See id.  5(d).
80 A few towns have established guidelines for the expenditure of CPA funds. Of course, these priorities were established by local choice. Community Preservation Act, Mass. Gen. Laws ch. 44B,  5(e).
81 See Mark Bobrowski, Table of Massachusetts Communities and Their Spending Preferences (unpublished table, on file with the Boston College Environmental Affairs Law Review until May 2004) [Bobrowski, Communities and Spending Preferences].
82 See id.
83 See id.
84 See id.
85 See id.
86 See id.
87 See Bobrowski, Communities and Spending Preferences, supra note 81.
88 See id. These highlights of CPA expenditures are noted in the Trust for Public Land’s “Status of Local Projects” Web site. Trust for Public Land, Status of Local Projects, at http://www.tpl.org/tier3_cdl.cfm?content_item_id=11075&Folder_id=1045 (last visited Mar. 10, 2003).
89 It must be noted that many of the communities have spent no money at all. The recent vintage of the CPA, or the date of local acceptance, probably has not yielded sufficient funds in these inactive communities. See Bobrowski, Communities and Spending Preferences, supra note 81.
90 Relatively built-out Cambridge has little open space on which to expend CPA funds. See Mass. Dep’t of Cmty. Dev., Cambridge 2 (n.d.), available at http://www.state.ma.us/ dhcd/iprofile/049.pdf (last visited Apr. 6, 2003).
91 This world does, in fact, exist only fifty miles south of Boston and it is called Rhode Island. These are the very elements required by to be contained in a comprehensive plan. R.I. Gen. Laws  45-22.2-6 (West, WESTLAW through Jan. 2002 Legis. Sess.). Every city and town in Rhode Island must adopt this document. All land use ordinances must thereafter be in accordance with this comprehensive plan. See id.  45-22.2-5.
92 See Kenneth H. Young, Anderson’s American Law of Zoning  5.02 (4th ed. 1995).
93 See id.  5.03 (citing Model Land Dev. Code, app. A (1968) (laying out section three of the Standard State Zoning Enabling Act for the comprehensive requirement)).
94 See id.
95 The states are Arizona, California, Delaware, Florida, Hawaii, Idaho, Kentucky, Maine, Montana, Nebraska, Nevada, New Jersey, Oregon, Rhode Island, Vermont, and Virginia. See Arden H. Rathkopf & Daren A. Rathkopf, Rathkopf’s Law of Planning and Zoning,  12.04 (1986).
96 Mass. Gen. Laws ch. 41,  81D (2000).
97 The “master plan” should be distinguished from a “comprehensive plan.” In those jurisdictions which require zoning to be in accordance with a comprehensive plan, the master plan, if it exists, is relevant, but not controlling. See, e.g., Mesolella v. City of Providence, 439 A.2d 1370, 1374 (R.I. 1982); Sweetman v. Town of Cumberland, 364 A.2d 1277, 1287 (R.I. 1976).
98 Mass. Gen. Laws ch. 41,  81D. The statute prescribes that such master plans contain goals and policies for future growth and development, and elements pertaining to land use, housing, economic development, natural and cultural resources, open space and recreation, public services and facilities, roads and transportation, and strategies for implementation. See id.
99 Act of June 16, 1933, ch. 269, 1933 Mass. Acts 269, which came on the heels of the Standard State Zoning Enabling Act, did not incorporate the clause requiring accordance with a comprehensive plan. As a result, the court has declined to read this requirement into the statute. See Noonan v. Moulton, 204 N.E.2d 897, 901 (Mass. 1965); Town of Granby v. Landry, 170 N.E.2d 364, 366 (Mass. 1960).
100 See, e.g., Manning v. Boston Redev. Auth., 509 N.E.2d 1173, 1177 (Mass. 1987); Henze v. Bldg. Inspector, 269 N.E.2d 711, 712 (Mass. 1971); Durand v. Superintendent of Pub. Bldgs., 235 N.E.2d 550, 552 (Mass. 1968); Peters v. City of Westfield, 234 N.E.2d 295, 297 (Mass. 1967); Maider v. Town of Dover, 306 N.E.2d 274, 276 (Mass. App. Ct. 1974).
101 560 N.E.2d 138, 142 (Mass. App. Ct. 1990).
102 Id. at 141, 142.
103 See, e.g., Marshfield Planning Bd. v. Pembroke Zoning Bd. of Appeals, 695 N.E.2d 650, 653 (Mass. 1998). The Massachusetts Supreme Judicial Court ruled that a board in one town may not appeal the decision of a board in a neighboring town under the “municipal officer or board” clause of Massachusetts General Laws chapter 40A, section 17, despite the fact that the zoning board of appeals of Pembroke approved a ten-screen, 1600 seat cinema complex on Route 139 in Pembroke with traffic impacts largely in Marshfield. See also Franklin Town Council v. Bellingham Zoning Bd. of Appeals, 6 Land Ct. Rep. (Mass. Landlaw) 334, 336–37 (Mass. Land Ct. Dec. 4, 1998) (electric generating plant located 600 feet from Franklin town line); Norwell Planning Bd. v. Scituate Planning Bd., 6 Land Ct. Rep. (Mass. Landlaw) 6, 7 (Mass. Land Ct. Jan. 2, 1998).
104 See discussion supra note 6. See generally Christine McConville, Changes to Affordable Housing Law Lauded Change Gives Towns More Say, Boston Globe, Aug. 15, 2002, at 1.
105 The vetoed conference committee bill was H.R. 5288 (2002).
106 See Low and Middle Income Housing Act, Mass. Gen. Laws ch. 40B,  20 (2000); Brenda J. Buote, Finding Ways to Boost Affordable Housing, Boston Globe, Sept. 19, 2002, at 1. See generally Erica Noonan, Affordable Housing Change Gives Towns More Say Incentive Recognizes Steady Progress, Boston Globe, Aug. 4, 2002, at 1.
107 See also Theodore C. Taub, Exactions, Linkages, and Regulatory Takings: The Developer’s Perspective, in Exactions, Impact Fees and Dedications: Shaping Land-Use Development and Funding Infrastructure in the Dolan Era 125 (Robert H. Freilich & David W. Bushek eds., 1995); Donald L. Connors & Michael E. High, The Expanding Circle of Exactions: From Dedication to Linkage, 50 Law & Contem. Probs. 70, 72–83 (1987).
108 Alternatively, section 81U allows a planning board to require the developer to “show a park or parks suitably located for playground or recreation purposes or for providing light and air and not unreasonable in area in relation to the area of the land being subdivided . . . for a period of not more than three years without its approval.” The statute contemplates municipal purchase of such land and is not applicable to this discussion of exactions. See Mass. Gen. Laws ch. 41,  81U (2000).
109 Pursuant to Massachusetts General Laws chapter 40A, section  9. See supra Part II.A.
110 The term “subdivision exaction” and the related concept of “payment in lieu” (of such exactions) are widely used in the land use field. See, e.g., Rathkopf, supra note 95,  65.03; Norman Williams, Jr. & John M. Taylor, American Land Planning Law  156.08 (rev. 1985).
111 Williams, supra note 110,  156.08.
112 See, e.g., Bayswater Realty & Capital Corp. v. Lewisboro Planning Bd., 560 N.E.2d 1300, 1301 (N.Y. 1990).
113 City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 803 (Tex. 1984).
114 Mass. Regs. Code tit. 760,  31.07(3)(d) (2002). “The Committee may receive evidence of and shall consider the following matters: (1) a city or town’s master plan, comprehensive plan, or community development plan, and (2) the results of the city or town’s efforts to implement such plans.”
115 Id.  31.07(1)(i).
116 Professor Sharon Krefetz estimates that chapter 40B has created, as of October 1999, more than 21,000 units of housing, of which 18,000 are affordable units, in 173 cities and towns in the Commonwealth. Sharon Perlman Krefetz, The Impact and Evolution of the Massachusetts Comprehensive Permit and Zoning Appeals Act: Thirty Years of Experience with a State Legislative Effort to Overcome Exclusionary Zoning, 22 W. New. Eng. L. Rev. 381, 392 (2001).