[*PG487]AFFORDABLE HOUSING V. OPEN SPACE: A PROPOSAL FOR RECONCILIATION

Mark Bobrowski*

Abstract:  This Article describes the friction in Massachusetts—largely inspired by controversy surrounding the State’s affordable housing law, Massachusetts General Laws chapter 40B—between housing advocates and open space advocates. The sources of this breach are embedded in the State’s land use statutes. This Article reviews the current law and the symptoms of the feud, and it suggests various legislative proposals for the reconciliation of these progressive forces.

Introduction

Local land use decisionmaking cannot be characterized as conservative or liberal, Republican or Democrat. The vagaries of local politics make such convenient labels impossible. Planning boards are not divided along party lines. Two issues of local concern, however, are clearly on the “progressive” side of anyone’s agenda: affordable housing and open space preservation.

One would assume that advocates for affordable housing and open space preservationists are natural allies.1 Affordable, decent housing has been a mainstay of the progressive view since the Great Society of Lyndon Johnson.2 Open space preservation came to the forefront as a part of the environmental movement of the same period in our nation’s history. In fact, several jurisdictions—notably Oregon, California, and Montgomery County, Maryland—have man[*PG488]aged to produce affordable housing while preserving valuable open spaces with the support of an alliance of progressive advocates.

In Massachusetts, however, proponents of affordable housing are often most bitterly opposed by those who would prefer open space in lieu of housing. The confrontation often arises in the context of a comprehensive permit application pursuant to Massachusetts General Laws chapter 40B, sections 20–23, the “Anti-Snob Zoning Act” (40B or Comprehensive Permit Law).3 Proposals for affordable housing at a density familiar to Boston’s suburbs have been routinely offered in our smaller, less-developed communities, on sites that are not served by municipal water or sewer.4 Once these projects are permitted, there is a resulting decrease in open space.

As this Article will demonstrate, Massachusetts state laws have promoted this feud. By prohibiting exactions of the type allowed in many other jurisdictions, the legislature and the courts have created a jerry-rigged system of horsetrading in which either open space or affordable housing is sacrificed at the expense of the other in permit negotiations. Furthermore, the lack of comprehensive planning, at any level, pits affordable housing proponents against open space preservationists.5 Without a comprehensive plan for municipal build-out, all development becomes ad hoc, with no broader vision of the proper balance between affordable housing, open space, or any other municipal or regional concern.6 Advocates are forced to go to the barricades parcel by parcel, application by application. The result is animosity between the camps.

The conflict between open space and affordable housing advocates is, for the most part, avoidable. It is Massachusetts’s short-sighted system of land use regulation and utter lack of planning for municipal or regional land use that have created this controversy. This Article suggests revisions to specific statutes, including the Comprehensive Permit Law, 40B, to reduce tension between the camps.7 The Subdivi[*PG489]sion Control Law8 and the Zoning Act9 are also prime candidates for such reform. Moreover, by forging a legal nexus between planning and zoning, the legislature can revise 40B to eliminate many of the bitter confrontations over the development of greenfields for affordable housing. Some of these changes have been considered and rejected in recent legislative sessions.10 Some are suggested by the recent rule changes promulgated by the Massachusetts Department of Housing and Community Development (DHCD), regarding comprehensive permits.11 Suburban hostility to 40B could be significantly reduced by these modest reforms.

I.  The Causes of the Rift—Needs Outweigh Vision

Among the reasons for the hostility between advocates for affordable housing and those for open space, none is more compelling than the overwhelming need for action. Dire circumstances undoubtedly make for short tempers and a lack of vision, if not open warfare.

A.  Affordable Housing

Nationally, housing prices have climbed in the last decade, although there has been a very recent slump. The median price for home resales is now $161,400,12 down slightly from the last quarter of 2002. The median price for the sale of a new home is now $167,300, down from $178,900 in the last quarter of 2002.13

In Massachusetts, the median price of a home is roughly twice the national median.14 In the spring of 2001, new home prices in Massachusetts were termed the highest in the country, 48% above the national average.15 In the fourth quarter of 2002, the median home [*PG490]price in Massachusetts was $341,208, down 7.2% from the high of $367,814 from the previous quarter.16 Yet, median price for a home in Massachusetts has increased 50% in the last three years.17 The market for condominiums is only marginally better. The median price for a condominium unit in Massachusetts is now $247,112, up from $210,876 in the final quarter of 2001.18

The supply of affordable housing has suffered accordingly. In 2002, only three cities inside Route 128 have a median home price of $250,000 or less: Chelsea, Everett, and Revere.19 Seventeen cities or towns were below $250,000 only one year earlier.20 Rents in the Commonwealth were up nearly 40% in the period from 1995 to 2000, with the average unit increasing from $744 per month to $1035 per month.21 In the majority of the 161 towns in the Boston Metropolitan Statistical Area (MSA), a household earning the median income of that community earns less than necessary to purchase a home or rent a dwelling for the median sale or rental price.22 The percentage of income devoted to mortgage payments in the Boston MSA is 44.9%, the second highest in the country after San Francisco at 46.7%.23

Some of this gloomy news is due to housing construction costs, which are higher in Massachusetts than in any other New England state, New York, New Jersey, Illinois, or Maryland.24 High construction [*PG491]costs discourage production. Supply now falls far behind demand.25 During the 1990s, Massachusetts saw the creation of 129,265 new households, but only 91,567 new dwelling units.26 From 1995 to 1999, the average number of new dwelling units created in the Boston MSA was 8460 units per year; from 1999 to 2002, the average decreased to 8194 units per year. In the Boston MSA, the Greater Boston Housing Report Card 2002 estimates that 15,660 units are needed annually to ease the affordable housing crisis.27

B.  Sprawl

The news regarding sprawl, and the rate at which open space is lost, is just as alarming. The Sierra Club estimates the total land lost to sprawl at about 100 million acres, of which 25 million acres were lost from 1982 to 1997.28 In the last five years of this period, 1992 to 1997, the United States Department of Agriculture’s Natural Resources Inventory found that the nation lost 11.2 million acres of farmland and other open space to development, or 2.2 million acres per year.29 Suburban development constitutes a large part of this sprawl.30 The Maryland Office of Planning projects that from 1995 to 2020 more land will be converted to housing in the Chesapeake Bay region than in the 350 years the region has been settled.31 In the metropolitan Chicago area, from 1970 to 1990, residential land development grew at a rate eleven times faster than the rate of population growth, and nonresidential land development was eighteen times higher than [*PG492]population growth.32 In metropolitan Cleveland, the consumption of land has increased by thirty-three percent in the same period, while the City’s population has declined by eleven percent.33

Massachusetts has fared no better. Land is being developed in Massachusetts at four times the rate of population growth.34 Since 1945, Massachusetts has lost more than 1.3 million acres of farmland.35 More than 3 million of the Commonwealth’s 5.2 million acres are undeveloped and unprotected.36

Of course, affordable housing and open space advocates compete for the limited state dollars available to address these compelling needs. Recent budget deficits, and a change in spending policy, has significantly cut into funding for affordable housing.37 State spending on housing programs, as a percentage of the total state budget, was 2.9% in 1989, but only 0.7% in 2002.38 State spending for open space acquisition or preservation has also decreased, but not as much as the rate of decline for spending on housing.39 The Executive Office of Environmental Affairs trumpeted fiscal year 2001 as a “record-breaking year” for acreage protected by the Department of Environmental Management (10,656 acres), the Division of Fish and Wildlife (111,920 acres), and the Department of Food and Agriculture (4,755 acres).40 These success stories are not offered to suggest that we spend enough money on open space preservation in Massachusetts. They [*PG493]may, however, indicate that open space is a more popular cause than housing, to the extent that legislative priorities reflect such popularity.

II.  Causes of the Rift—Statutes Promoting Competition

With Massachusetts state spending on affordable housing and open space at a historic low, when considered as a percentage of the total budget, the production of dwelling units and the conservation of land have become the responsibility of local government. But cities and towns do not build housing, except in rare circumstances. Nor do they routinely buy expensive tracts of open land, at least in the years since Proposition 21/2 was enacted.41 Instead, cities and towns use their land use regulations and permitting practices to bargain for affordable housing and open space. The newly enacted Community Preservation Act of 200042 also allows municipalities to renovate or develop “community housing” or to purchase or otherwise restrict open space.43 The result is a competition for local preference. Two statutes demonstrate this dynamic.

A.  Section 9 of the Zoning Act

Section 9 of the Zoning Act states, in part, that by special permit an ordinance or bylaw may authorize an increase in the permissible density of population or intensity of a particular use in a proposed development; provided the petitioner or applicant, as a condition of the grant of the permit, set aside certain open space, housing for persons of low- or moderate-income, traffic or pedestrian improvements, installation of solar energy systems, protection for solar access, or other amenities.44 This statutory provision is most often associated with the “cluster” mechanism of an ordinance or bylaw.45

[*PG494] Cluster development generally allows for reduced lot size and frontage requirements.46 The statute allows the special permit granting authority (SPGA) to authorize cluster development where the proposal sets aside a prescribed amount of open space or number of affordable dwelling units.47 To attract developers to this option, the municipality offers a reduction in infrastructure costs. Lower lot frontage and area requirements mean shorter roads.48 Some communities also offer developers a density bonus, which increases the number of market rate dwelling units.49 Both are a type of “increase in the permissible density of population or intensity of a particular use.”50 In short, the statute allows municipalities to “bait” developers, by ordinance or bylaw, to create affordable housing or preserve open space. The ordinance or bylaw, however, must specify the terms of the deal.51 [*PG495]To be eligible for a special permit, the developer must supply the specified minimum amount of required open space, or the specified percentage of affordable dwelling units.52 If the developer meets these terms, and the project is otherwise buildable, then the developer may be rewarded with a special permit authorizing more dwelling units and, perhaps, fewer infrastructure costs.

Do cities and towns prefer open space or affordable housing (or both) as the tradeoff for an increase in density or intensity of use? Because the statute requires municipalities to specify the preferred “amenities” to be traded for an increase in density or intensity of use, it is possible, by a review of local ordinances and bylaws, to identify the preferences of local legislatures.53

The results are not surprising. Far more municipalities prefer open space as a tradeoff rather than affordable housing. Some communities currently trade for open space. These cities and towns are listed in Table 1 (found in appendix A), which indicates the name of the community, the relevant section of the ordinance or bylaw, the minimum amount of open space to be set aside.

These communities have had mixed success in generating open space by the special permit mechanism of section 9 of the Zoning Act.54 There are, however, some noteworthy achievements. In Acton, more than 130 acres of open space are now in town ownership. Amherst has preserved more than 220 acres of open space. Groton [*PG496]has a long history of cluster or flexible development; the vast majority of subdivisions have used alternative development and hundreds of acres have been preserved. In Harwich, on Cape Cod, more than twenty cluster-type subdivisions have been approved pursuant to the local bylaw, each resulting in open space. Finally, in Hopkinton, the local bylaw has worked to preserve more than 400 acres of open space. The Executive Office of Environmental Affairs (EOEA) estimates that 6000 acres of conservation restrictions were approved in calendar year 2001.55 Many of these restrictions undoubtedly originated in special permit decisions pursuant to the Zoning Act. Another 124 municipalities have used section 9 to trade for affordable housing.56 Many of these communities also trade for open space.57

Again, there are some notable success stories in generating affordable housing. In the urban communities using section 9 of the Zoning Act58—Newton, Cambridge, Brookline, and Somerville are prime examples—the production of affordable dwelling units has been consistent, if not prolific.59 In contrast, the production of affordable housing in suburban communities is rare. With the exception of Groton, Sudbury, and Falmouth, few towns have generated any units.60 In fact, according to Philip B. Herr’s 2000 Massachusetts Housing Partnership (MHP) Study, fewer than two dozen communities have actual production, with most generating only a scattering of units, and then only infrequently.61 The MHP Study estimates that, at best, 200 units come into existence annually through section 9 trades, constituting far less than one percent of the total number of dwelling units produced statewide.62 If the City of Boston’s contribution is deducted from this figure, then the results are an inconsequential addition to the pool of dwelling units.63

[*PG497] The inescapable conclusion from the data is that cities and towns, if given a choice between affordable housing and open space, vastly prefer open space as an “amenity” pursuant to section 9. This choice is a reflection of overall trends. There is some headway being made in the preservation of open space. EOEA estimates that of 5.2 million acres—the total land area of Massachusetts—1.1 million acres have been permanently protected as open space, equal to the 1.1 million acres that have been developed.64 On the other hand, only 8.45% of the Commonwealth’s 2,526,963 dwelling units are affordable.65

The other conclusion that may be drawn from the data is that SPGAs are under considerable pressure to save open space, not create affordable housing. The special permit process of the Zoning Act involves a statutory public hearing.66 Those who prefer open space or affordable housing as the amenity of choice are likely to voice that opinion at the hearing. In fact, open space and affordable housing advocates are forced to compete in those cities and towns where either choice is available.67 Ultimately, SPGAs must choose the winner of the amenity contest. It seems apparent that affordable housing comes in a distant second to open space preservation statewide.

B.  The Community Preservation Act

A second statute, the newly minted Community Preservation Act of 2000 (CPA),68 pits advocates of affordable housing against those who favor open space. This time the battle is fought exclusively in the local legislatures: the floor of town meetings or the chambers of the city council.

By local option, a municipality’s legislative body may choose to accept the provisions of sections 3 through 7 of the statute, and approve a “surcharge on real property of not more than three percent of the real estate tax levy against real property, as determined annually by the board of assessors.”69 This determination must then be approved by the voters of the city or town by referendum.70 In essence, [*PG498]the CPA is a self-imposed tax on the sale of real property, with the revenue to be spent on local projects within the ambit of the law.71

Once the provisions of the CPA have been accepted by a city or town, a community preservation committee is established.72 The committee is charged with the duty to study the various needs of the city or town, after consultation with other officials and agencies.73 Eventually, the committee may make recommendations to the local legislative body with regard to any of the following statutory purposes:

(1)“acquisition, creation, and preservation of open space”;74

(2)“acquisition and preservation of historic resources”;75

(3)“acquisition, creation and preservation of land for recreational use”;76

(4)“recreation, preservation and support of community housing”;77 or

(5)“rehabilitation or restoration of such open space, historic resources, land for recreational use and community housing.”78

After receiving the recommendations of the committee, the local legislative body must approve an appropriation from the local fund containing the CPA revenues.79

The CPA, like the special permit provision of section 9 of the Zoning Act, pits affordable housing against open space preservation. The CPA only generates so much revenue. Voters at town meetings or the members of a city council must choose how to spend these hard-earned CPA funds.80

An examination of the spending preferences in the cities and towns that have adopted the provisions of the CPA once again reflects the contest between open space and affordable housing. Fifty-eight [*PG499]communities have adopted the provisions of the CPA.81 Only nine of these fifty-eight CPA communities have spent money for affordable housing.82 Another three communities have set aside a fixed share of their CPA fund for such purposes.83 Some communities have devoted a considerable portion of the CPA fund to the affordable housing cause.84 Cambridge leads the way with $1.5 million already spent in this regard. Amherst, Bedford, and Westford have earmarked $130,000, $400,000, and $325,000, respectively, for affordable housing projects.85

Twelve communities have spent CPA funds on the preservation of open space and three more communities have set aside funds for this purpose.86 Weston has committed $3.5 million in funds and floated a $2.5 million bond for purchasing open space.87 North Andover, Boxford, and Duxbury have spent $2.4 million, $3 million, and $1.7 million, respectively, for open space purposes.88

Although it may be too early to draw solid conclusions from the expenditure of CPA funds,89 the emerging pattern is all too familiar. Of all funds committed to date, affordable housing is getting short shrift. Spending to date for open space acquisition is, in total, more than five times that for affordable housing. If Cambridge is eliminated from the mix,90 then the ratio tilts even more in favor of open space acquisition. Community preservation committees, no doubt, find it easier to convince the voters at town meetings, or the city council members, to purchase open space. Open space preservation serves [*PG500]other, front-burner, objectives. Acquisition reduces build-out and the municipal services required by growth; has the effect of reducing the number of prospective school children; and slows sprawl. Affordable housing is a tougher sell.

III.  Causes of the Rift—What’s the Plan?

In a perfect world, a community’s balance of affordable housing and open space would be determined by a rational planning process. Other considerations would receive attention, including, but not limited to the availability of public utilities; the characteristics of traffic flow and the transportation system; environmental constraints; and aesthetic concerns. The community would balance these sometimes-competing concerns, and would frame them in a comprehensive plan enacted by the voters to guide rational municipal decisionmaking in legislative and adjudicatory action. Subsequent land use decisions would require consistency with the comprehensive plan.91

A “comprehensive plan” requirement is a standard feature of state zoning legislation.92 The Standard State Zoning Enabling Act93 mandated that zoning regulations be adopted “in accordance with a comprehensive plan.”94 At least sixteen states have interpreted this requirement to mean that a municipality is prohibited from enacting zoning regulations, unless it has adopted a plan, and, once adopted, all regulations are in accordance with this plan.95 Four of these states are Rhode Island, Vermont, Maine, and New Jersey.

Massachusetts requires by statute that a “planning board established in any city or town . . . make a master plan of such city or town or such part or parts thereof as said board may deem advisable and from time to time may extend or perfect such plan.”96 The master [*PG501]plan97 is “a statement, through text, maps, illustrations or other forms of communication . . . designed to provide a basis for decision making regarding the long-term physical development of the municipality.”98 Despite the obvious connection between zoning and planning, there has never been a Massachusetts requirement that zoning be in accordance with a comprehensive or master plan.99

Several appellate decisions indicate that compliance with such plans is a factor supporting the validity of a particular rezoning.100 In National Amusements, Inc. v. City of Boston,101 the appeals court went one step further in rejecting the rezoning of a parcel from general business to a residential classification. The court, in strong terms, chastised the Boston Redevelopment Authority:

What is striking about the record is the absence of analysis of land use planning considerations by municipal authority before the decision to change the zoning was taken . . . . [Z]one changes which have no roots in planning objectives but which have no better purpose than to torpedo a specific development on a specific parcel are considered arbitrary and unreasonable.102

The holding in National Amusements strongly suggests that any rezoning unaccompanied by only a modicum of planning should be open to challenge.

[*PG502] It is time for the legislature to take the bait offered by the appeals court in National Amusements and require a link between planning and zoning. The absence of a comprehensive plan requirement has direct consequences for municipalities. Old master plans are not updated for twenty or thirty years. In effect, such communities are entirely without a plan for growth and development. Home rule pits town against town, without any state agency to coordinate regulations or decisions that have inter-municipal land use impacts. The case law is littered with such disputes.103 Perhaps the most destructive consequence of the missing nexus between planning and zoning is that all land use decisions become ad hoc determinations, without a consistent frame of reference. Boards grapple with individual permit applications without the big picture of the community’s goals and objectives. Open space and affordable housing become chips in a high stakes poker game, along with other amenities like traffic mitigation, deficit reduction, and infrastructure enhancement. No one has a goal in mind, because none is required by law. Build-out becomes a thousand-act play without a script. Veteran actors know how to appeal to the audience—open space instead of affordable housing—but parcel by parcel the remaining opportunities to map a comprehensive strategy with full build-out fast approaching in some communities are wasted.

IV.  Conclusions and Recommendations

Open space and affordable housing are not inconsistent goals. Massachusetts’s woefully short-sighted land use regulations and inadequate emphasis on regional and local planning have caused the present crisis. With a few modifications to our state land use laws, these progressive causes may forge an alliance for positive change.

[*PG503]A.  Allow Communities to Exact Affordable Housing in
Larger Residential Developments.

In the 2002 round of reforms to 40B, the state senate passed a bill that would allow communities, by local option, to require developments of more than ten units to set aside ten percent of the units for affordable housing.104 The state house deleted this provision from the final reform bill, which, in any event, was vetoed by Acting Governor Jane Swift.105 The enactment of this provision would have allowed cities and towns to fall no further behind in the struggle to reach the ten percent threshold for affordable housing established in 40B.106 Housing for families with low- or moderate-income levels would become a standard feature of every large residential development project. Affordable housing would be elevated from an afterthought to a mandate.107

B.  Allow Planning Boards to Exact Open Space in Subdivision Approvals

The Subdivision Control Law states that “no rule or regulation shall require . . . that any of the land within [a] subdivision be dedicated to the public use . . . without just compensation . . . .”108 As a result of the antiquated provision, planning boards must bargain for open space—at the cost of higher density—instead of requiring it.109

[*PG504] This statutory ban on subdivision exactions110 places Massachusetts squarely in the minority of states:

[P]ublic open space (and particularly a playground) is an important need in connection with new residential subdivisions. A large subdivision will need its own small playground; for a small subdivision, a separate playground would probably be a burden to maintain, and the better solution will often be to secure access to a playground serving several such subdivisions. For this reason, many municipalities have required that large subdivisions should dedicate land for this purpose, and that small subdivisions should make payments in lieu of such dedication. By now the validity of requiring dedication of land for public open space has been generally accepted . . . .111

Recent decisions in New York112 and Texas113 support this position. The elimination of the takings clause in section 81Q of the Subdivision Control Law would allow planning boards to exact a reasonable amount of open space—or a payment in lieu—in every subdivision. Open space would become a condition in every approval, not a poker chip.

The adoption of these two statutory reforms would bring Massachusetts into the majority of jurisdictions, which allow such measures. Moreover, it would make open space and affordable housing the inevitable consequence of every large development. Reform would link these progressive causes in an alliance for sound land use planning.

C.  Require Every Community to Adopt a Sound Plan for Affordable Housing

Two recent rule changes at the Department of Housing and Community Development (DHCD) acknowledge the importance of local planning. The first makes a community’s comprehensive or master plan a factor to be considered by the Housing Appeals Committee [*PG505]in weighing an application for a comprehensive permit.114 The second rewards those municipalities that produce dwelling units pursuant to an “affordable housing plan.”115 Both changes signal the dawn of a new era in Massachusetts land use law.

In the immediate future, prospects for the survival of 40B would be immensely enhanced if all cities and towns were required, not just invited, to plan for affordable housing. The careful development of a plan, certified by DHCD, in every city and town below the ten percent threshold would, by definition, eliminate those most egregious abuses of the law that have caused the current furor. DHCD would be obliged to weigh the specific sites chosen by the municipality and the cost to open space, transportation networks, and infrastructure. The “Anti-Snob Zoning Act” could become a device for infill, building conversion, brownfield reclamation, and transportation node development. Rural or unserved locations could be placed off-limits as a matter of DHCD policy. Rational planning may save this valuable statutory tool.116 It may also seal the alliance of affordable housing and open space preservation.

[*PG506]Appendix A

City/Town

Affordable Housing

Open Space

Historic Preservation

Recreational Use

Acton

No Spending Yet

Agawam

No Spending Yet

Amherst

$130,000

$20,000

Aquinnah

$35,000

Ashland

No Spending Yet

Ayer

No Spending Yet

Bedford

$400,000

$450,000

$2,510,000 (w/ Bond)

$85,000

Boxford

$3,000,000 Bond

Braintree

No Spending Yet

Cambridge

$1,500,000

Carlisle

No Spending Yet

Chatham

No Spending Yet

Chelmsford

$120,000

$20,000

Chilmark

80%

10%

10%

Cohasset

$10,000

$155,000

$100,000

Dartmouth

Dracut

$960,000

Duxbury

$320,000

$1,700,000 (w/ Bond)

Easthampton

No Spending Yet

Easton

10%

10%

10%

Georgetown

Grafton

No Spending Yet

Hampden

10% Set Aside

$100,000 (Over 5 Yrs.)

$5,000

Harvard

No Spending Yet

Hingham

Holliston

Purchase Made

Hopkinton

$100,000

60% of Funds Reserved

$105,000

Leverett

Lincoln

No Spending Yet

Marshfield

$212,000

$40,000

Mendon

No Spending Yet

[*PG507]Medway

No Decisions Yet

$30,000

$83,000

Nantucket

Newburyport

Newton

No Spending Yet

Norfolk

No Spending Yet

N. Andover

$2,400,000 (Over 5 Yrs.)

Norwell

No Spending Yet

Peabody

1 Project

2 Projects

Plymouth

No Spending Yet

Rockport

No Spending Yet

Rowley

$1,000,000

Scituate

No Spending Yet

Southampton

No Spending Yet

Southwick

Stockbridge

No Spending Yet

Stow

No Spending Yet

Sturbridge

Sudbury

$350,000 (5 Yr. Bond)

$400,000 (4 Yr. Bond)

Tyngsborough

No Spending Yet

Wareham

No Spending Yet

Wayland

No Spending Yet

Wellesley

No Spending Yet

Westfield

Westford

$325,000

$1,000,000

$100,000

Weston

$6,000,000 (5 Yr. Bond)

Westport

No Spending Yet

Williamstown

No Spending Yet

[*PG508]BLANK PAGE

?? ??