* Adjunct Professor, Boston College Law School; Lecturer, Tufts University Department of Urban and Environmental Policy and Planning; Partner, Daley & Witten, L.L.C.; J.D., Suffolk University Law School, 1997; M.R.P., Cornell University, 1981; B.A., Boston College, 1979.
1 Block v. Hirsh, 256 U.S. 135, 156 (1920).
2 Daniels v. Williams, 474 U.S. 327, 327 (1986).
3 Lemke v. Cass County, 846 F.2d 469, 472 (8th Cir. 1987).
4 See Joel Garreau, Edge City 11 (1991). Garreau poignantly illustrates the tension between preservation and development:
The forces of change whose emblem is the bulldozer, and the forces of preservation whose totem is the tree, are everywhere at war in this country. The raging debate over what we have lost and what we have gained, as we flee the old urban patterns of the nineteenth century for the new ones of the twenty-first, is constant.
Id.
5 See, e.g., Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 394 (1926). The Supreme Court in Euclid made reference to certain prejudices common in affordable housing debates:
With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite . . . .
Id.; Editorial, Snob Zoning Alert, Boston Globe, May 18, 2001, at A22 (“‘If we went by current zoning and bowed to the neighbors every time, we would have no affordable housing outside major cities.’”(quoting Aaron Gornstein, Director, Citizens Housing & Planning Association)).
6 See, e.g., Jon C. Dubin, From Junkyards to Gentrification: Explicating a Right to Protective Zoning in Low Income Communities of Color, 77 Minn. L. Rev. 739, 773–74 (1993); Stanley P. Stocker-Edwards, Black Housing 1860–1980: The Development, Perpetuation and Attempts to Eradicate the Dual Housing Market in America, 5 Harv. BlackLetter L.J. 50, 58 (1988). Racism was a significant problem in early public housing projects:
[I]n the 1940s in San Diego, the federal Public Housing Authority (PHA) adopted a segregated pattern for its federally managed projects, while many areas of the city were integrated . . . . An example of the role that race could play in the politics of location is the city of Chicago in the later 1940s and early 1950s. During this period, the majority of the city’s aldermen favored the principle of public housing; however, the aldermen did not want public housing in their own wards. They wanted no low-income neighbors, and no Blacks of any kind.
Stocker-Edwards, supra, at 58. Other commentators provide additional examples of the effects of overt racism in housing:
The historic and continuing practices of officially sanctioned zoning and land use discrimination are perhaps most pervasive and well-documented as they pertain to African-American communities . . . . Nevertheless, other communities of color—in particular, Puerto Rican and Mexican-American communities (hereinafter Hispanics)—have similarly experienced substantial governmental discrimination . . . . Public housing site and tenant selection and urban renewal policy have also served to confine hispanics to segregated and inferior housing.
Dubin, supra, at 773–74. Overt racism was also substantive part of the marketing employed by one of the nation’s largest housing developers, William Levitt, the designer and builder of Levittown on Long Island, New York. The original Levittown contract read, “No dwelling shall be used or occupied except by members of the Caucasian race, but the employment and maintenance of other than Caucasian domestic servants shall be permitted.” Jay B. Itkowitz, Levittown at 25: Prototype of Suburban Housing, at http://www.itkowitz.com/ mam1965text.php?aid=259 (last visited Mar. 16, 2003).
7 See Richard Babcock, The Zoning Game 31 (1969) (“The resident of suburbia is concerned not with what but with whom. His overriding motivation is less economic than it is social. His wife spends more at the hairdresser in a month than the proposed apartment house will add to her husband’s tax bill in a year.”).
8 Opponents to affordable housing developments are commonly referred to as NIMBYs (not in my backyard). “Most of the mechanisms citizens use to influence land development are local, just as most decisions affecting land development and housing affordability are local. Hence, a particular symbiosis exists between NIMBY sentiments and the institutionalization of NIMBY.” Advisory Comm’n on Regulatory Barriers to Affordable Hous., U.S. Dep’t of Hous. & Urban Dev., Not in My Back Yard 1–7 (1991) [hereinafter Advisory Comm’n Report]. But if private property owners do not protect “their backyard” from development projects that were neither foreseeable nor in accordance with the city or town’s long range plan, then who will? The use of the phrase NIMBY seeks to chill otherwise lawful and expected opposition to ill-conceived and threatening developments by casting less than honorable motives upon the objector. One cannot be considered a NIMBY to developments that have an unconstitutional foundation and abuse the public’s trust. Tim Iglesias, Managing Local Opposition to Affordable Housing: A New Approach to NIMBY, 12 J. Affordable Housing & Community Dev. L. 78, 79 n.5 (2002) (“This article uses the term ‘local opposition’ instead of NIMBY because NIMBY has become a pejorative term that can undermine efforts to reduce opposition and to build community support by unnecessarily offending reasonable individuals who have sincere concerns and questions.”).
9 Many commentators argue that studies used to quantify the impact low- and moderate-income housing has on nearby property values are imprecise. See, e.g., Richard K. Green, et al., Univ. of Wis., Low Income Housing Tax Credit Housing Developments and Property Values 7 (2002) (“The great difficulty in doing such a study well is in finding otherwise nearly identical units and neighborhoods to compare, that differ more or less only in whether developments exist nearby.”). Other commentators, however, have noted that quantification is useful. See, e.g., Justin D. Cummins, Housing Matters: Why Our Communities Must Have Affordable Housing, 28 Wm. Mitchell L. Rev. 197, 212 (2001) (“Data collected over the past four decades from across the country, and in the metro area, shows affordable housing has little, if any, negative impact on surrounding property values.”). As discussed throughout this Article, however, the impact of low- and moderate-income housing on surrounding land values is relevant only insofar as it relates to the development of the municipal comprehensive plan.
10 See discussion infra Part IV.
11 The Massachusetts approach to affordable housing development fosters an “ends justifies the means” approach. See discussion infra Part III. The relevant statute and regulations mandate that where a city or town does not have a requisite number of dwelling units defined as subsidized, an applicant proposing to build twenty-five percent of a project’s dwelling units as “affordable” can override all local rules and regulations. Id.
12 See discussion infra Part III.B; see also William Shakespeare, The Merchant of Venice act 3, sc. 2 (Wordsworth Editions Ltd. 1994) (1600). In the words of William Shakespeare:
The world is still deceived with ornament./ In law, what plea so tainted and corrupt,/ But being seasoned with a gracious voice,/ Obscures the show of evil?/ In religion, What damned error, but some sober brow/ Will bless it and approve it with a text,/ Hiding the grossness with fair ornament?/ . . . . The seeming truth which cunning times put on to entrap the wisest.
Id. act 3, sc. 2, 74–80, 100.
13 Karen Finucan et al., Am. Planning Ass’n, Planning for Smart Growth: 2002 State of the States 22–23 (2002) (“Provisions in Massachusetts’ current planning statutes would allow plans for new development to circumvent smart growth measures by . . . allowing construction of affordable housing in unsuitable locations through a ‘comprehensive permit’ which effectively bypasses local planning and zoning requirements.”).
14 See discussion infra Part III.
15 Low and Moderate Income Housing Act, 1969 Mass. Acts. 712 (codified as amended at Mass. Gen. Laws ch. 40B, §§ 20–23 (2000)).
16 The recognition that planning and zoning are, or should be, inexorably linked, dates back to the Standard Zoning Enabling Act and the Standard City Planning Enabling Act published by the United States Department of Commerce in 1926 and 1928, respectively. See A Standard City Planning Enabling Act (Advisory Comm. on City Planning & Zoning, U.S. Dep’t of Commerce 1928); Standard Zoning Enabling Act (U.S. Dep’t of Commerce rev., 1926); see also Udell v. Haas, 235 N.E.2d 897, 900–01 (N.Y. 1968) (“[T]he comprehensive plan is the essence of zoning. Without it, there can be no rational allocation of land use. It is the insurance that the public welfare is being served and that zoning does not become nothing more than just a Gallup poll.”).
17 See Daniel J. Curtin, Jr., The Comprehensive Plan as Constitution: General Lessons from Recent California Zoning Initiative Cases, in 1992 Zoning and Planning Law Handbook 463 (Kenneth H. Young ed., 1991).
18 deBottari v. City Council, 217 Cal. Rptr. 790, 795 (Ct. App. 1985); see also Forestview Homeowner’s Ass’n. v. Cook County, 309 N.E.2d 763, 772 (Ill. App. Ct. 1974); Raabe v. City of Walker, 174 N.W.2d 789, 796 (Mich. 1970); Bd. of County Comm’rs v. City of Las Vegas, 622 P.2d 695, 698 (N.M. 1980).
19 deBottari, 217 Cal. Rptr. at 795; see also Forestview Homeowner’s Ass’n, 309 N.E.2d at 772; Raabe, 174 N.W.2d at 796; Bd. of County Comm’rs, 622 P.2d at 698.
20 See Lesher Communications, Inc. v. City of Walnut Creek, 802 P.2d 317, 322 (Cal. 1990) (“The Planning and Zoning Law does not contemplate that general plans will be amended to conform to zoning ordinances. The tail does not wag the dog.”); see also Nova Horizon, Inc. v. City Council of Reno, 769 P.2d 721, 724 (Nev. 1989). The Supreme Court of Nevada reinforced the fact that judicial deference cannot be equated with judicial abdication:
Having determined that master plans are to be accorded substantial compliance under Nevada’s statutory scheme, and recognizing anew the general reluctance to judicially intervene in zoning determinations absent clear necessity . . . . It is clear on the record that no evidentiary basis exists for the Council’s denial of appellants’ zone change request.
Nova Horizon, 769 P.2d at 724.
21 A facial challenge to a zoning or other land use regulation is a challenge brought to the regulation in the abstract, even though the regulation has not yet been “applied” to the plaintiff’s land. An “as applied” challenge attacks the regulation as it relates to the plaintiff’s specific property or development proposal.
22 In reviewing a government’s exercise of the police powers, the court’s analysis rests upon the presumption that a legislative body—state or local—is in a better position to assess the propriety of the action. See, e.g., Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926); Nat’l Land & Inv. Co. v. Kohn, 215 A.2d 597, 613–14 (Pa. 1965) (Cohen, J., dissenting). If there is a rational basis for the legislative action, then the judiciary will defer to the legislature and uphold the regulation. Euclid, 272 U.S. at 388. When a land use regulation’s reasonableness is “fairly debatable,” it will be upheld. Id.; see also Carty v. City of Ojai, 143 Cal. Rptr. 506, 508 n.1 (App. Dep’t Super. Ct. 1978) (“‘As applied to the case at hand, the function of this court is to determine whether the record shows a reasonable basis for the action of the zoning authorities, and, if the reasonableness of the ordinance is fairly debatable, the legislative determination will not be disturbed.’” (quoting Lockard v. City of Los Angeles, 202 P.2d 38, 43 (Cal. 1949))); Johnson v. Town of Edgartown, 680 N.E.2d 37, 40 (Mass. 1997) (“The general rule is that a zoning by-law whose reasonableness is fairly debatable will be sustained . . . . [T]he challenger must prove by a preponderance of the evidence that the zoning regulation is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals or general welfare.”).
23 See, e.g., Pendergast v. Bd. of Appeals of Barnstable, 120 N.E.2d 916, 918 (Mass. 1954).
Zoning has always been treated as a local matter. The creation and modification of zones are matters of municipal legislation. The board of appeals is a local board familiar with local conditions . . . . A judge of a State wide court, perhaps spending only a few days or weeks in a particular locality, is hardly a suitable tribunal for such purposes.
Id.
24 See, e.g., Arneson v. State, 864 P.2d 1245, 1248 (Mont. 1993).
25 See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 (1977) (“In sum, the evidence does not warrant overturning the concurrent findings of both courts below. Respondents simply failed to carry their burden of proving that discriminatory purpose was a motivating factor in the Village’s decision.”).
26 Id. The Supreme Court in Arlington Heights noted that evidence of a racially discriminatory motivation does not end the inquiry:
Proof that the decision was motivated in part by a racially discriminatory purpose would not necessarily have required the invalidation of the challenged decision. Such proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered.
Id. at 270–71 n.21.
27 Cf. S. Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713, 724–25 (N.J. 1975) [Mount Laurel I].
28 Undesirable land uses have been referred to as LULUs (locally unwanted land uses). The American Planning Association categorized these uses into three broad headings: (1) “Noncontroversial” uses, such as day-care centers and courthouses; (2) “Sometimes Controversial” uses, such as hospitals and recycling facilities; and (3) “Controversial” uses, such as airports, prisons, and sewage treatment facilities. Am. Planning Ass’n, Growing Smart Legislative Guidebook: Model Statutes for Planning & the Management of Change 5–6 (Stuart Meck ed., 2002) [hereinafter APA Guidebook].
29 See discussion infra Part III.
30 See Div. of Hous., Colo. Dep’t of Local Affairs, Affordable Housing Regulatory Barriers Impact Report 16 (2000) [hereinafter Colo. Barriers Report]. The Colorado Division of Housing discussed the importance and utility of the housing element of a comprehensive plan:
The first step toward removing the regulatory barriers that limit the production of affordable housing is found in a community’s long term strategic planning process. A local comprehensive land use plan is a product of this longterm vision . . . . The housing element of this Comprehensive Plan can address residential locations, policies regarding subsidies for affordable housing, and general design guidance. It is the adoption of affordable housing policies as an outgrowth of the Comprehensive Plan that prepares a community to increase its affordable housing supply.
Id.
31 See APA Guidebook, supra note 28, at 2-12 to -13. Horizontal or internal consistency requires that the mandated elements of the plan be consistent with each other. See, e.g., Fla. Stat. Ann. § 163.3194(3)(b) (West 2002) (“A development approved or undertaken by a local government shall be consistent with the comprehensive plan if the land uses, densities . . . and other aspects of development are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan . . . .”).
32 See Charles M. Haar, In Accordance with a Comprehensive Plan, 68 Harv. L. Rev. 1154, 1156 (1955) (“The legal implications of this theory seem manifest. A city undertaking to exercise the land regulatory powers granted to it by state enabling legislation should be required initially to formulate a master plan, upon which regulatory ordinances, of which the zoning ordinance is but one, would then be based.”).
33 See sources cited supra note 18.
34 For example, section 704 of the Telecommunications Act of 1996 contains the requirement that if local regulation of the location of telecommunication facilities is tantamount to an effective prohibition, the local regulation will run afoul of the statute. Telecommunications Act of 1996 § 704, 47 U.S.C. § 332(c)(7)(B)(i)(II) (2000). The Telecommunications Act of 1996 has generated significant amounts of litigation regarding the extent to which the Act preempts local government authority to prohibit or otherwise regulate the placement of telecommunication towers. See, e.g., Timothy J. Tryniecki, Cellular Tower Siting Jurisprudence Under the Telecommunications Act of 1996—The First Five Years, 37 Real Prop. Prob. & Tr. J. 271, 272 (2002).
35 See infra discussion accompanying notes 48–50.
36 Hunter v. City of Pittsburgh, 207 U.S. 161, 178–79 (1907). The Hunter Court noted:
Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them . . . . The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation . . . . In all these respects the state is supreme.
Id.
37 See Governor’s Ctr. for Local Gov’t Servs., Dep’t of Cmty. and Econ. Dev., Commonwealth of Pa., Planning Series No. 10, Reducing Land Use Barriers to Affordable Housing 13 (4th ed. 2001) [hereinafter Pennsylvania Planning] (“Except for taxing authority, the most important power that local governments possess is land use regulation. Unfortunately, zoning and subdivision practices can contribute in one or more ways to unnecessarily increase the cost of housing. The best framework for exercising local land use powers is a well-conceived comprehensive plan.”).
38 Paul Goodman & Percival Goodman, Communitas: Means of Livelihood and Ways of Life (Random House 1960) (1947).
39 Id. at 241–42. Goodman and Goodman observe:
Under the circumstances it seems reasonable to ask if the integration of all these various functions is not relevant? To give a partial list: housing, slum clearance, location of industries, transportation, adequate schools and teachers, clean streets, traffic control, social work, racial harmony, master planning, recreation . . . . Apart from such a unified view, the apparent solution of this or that isolated problem inevitably leads to disruption elsewhere. Slum-clearance as an isolated policy must aggravate class stratification . . . . No Master Plan guarantees foolishness like the Lincoln Square project. These consequent evils then produce new evils among them. Isolated planning cannot make sense.
Id.
40 See Lanza v. Wagner, 183 N.E.2d 670, 675 (N.Y. 1962).
41 Section 1421 of the Safe Drinking Water Act of 1974 established drinking water quality standards. Safe Drinking Water Act of 1974 § 1421, 42 U.S.C. § 300h (2000).
42 See, e.g., City of Rio Rancho v. Young, 889 P.2d 1246, 1249 (N.M. 1995).
43 Osborne M. Reynolds, Jr., Local Government Law 108 (2d ed. 2001) (“Home rule has been said to be intended to allow localities to decide for themselves the form of local government that they desire and the scope of its powers.”).
44 Id. at 159 (“Under the majority view, Dillon’s Rule is an exclusive enumeration of powers; no others exist.”).
45 The Massachusetts Home Rule Amendment provides a good example of the broad powers granted and the few powers withheld from local governments: “Any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court . . . .” Mass. Const. amend. LXXXIX, § 6.
46 The Massachusetts Home Rule Amendment provides a good example of preemption language as well: “Nothing in this article shall be deemed to grant to any city or town the power to: (1) regulate elections . . . (2) to levy, assess and collect taxes . . . .”. Mass. Const. amend. LXXXIX, § 7.
47 The powers of local government to protect public health, safety, and welfare have been the subject of numerous federal and state court decisions. In Hadachek v. Sebastian, the United States Supreme Court was faced with whether the City of Los Angeles could enforce a prohibition against brick manufacturing on Mr. Hadacheck’s land—land that he purchased specifically for the manufacturing of brick. 239 U.S. 394, 404–05 (1915). The case is riddled with due process, equal protection, regulatory takings, and estoppel issues. See id. at 405–07. The most memorable aspect of the Court’s decision, however, is Justice McKenna’s sweeping statement regarding the City’s police powers to protect public health, safety, and welfare:
It is to be remembered that we are dealing with one of the most essential powers of government, one that is the least limitable. It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily. A vested interest cannot be asserted against it because of conditions once obtaining.
Id. at 410.
48 The Massachusetts Supreme Judicial Court (SJC) applied the rule established by the United States Supreme Court in Hunter v. City of Pittsburgh in the first and most prominent Massachusetts case that focused on the constitutionality of the Massachusetts Comprehensive Permit Law. See Bd. of Appeals of Hanover v. Hous. Appeals Comm., 294 N.E.2d 393, 409–10 (Mass. 1973); discussion supra note 36. The SJC concluded that the statute’s usurpation of local control over applications under the law is within the power of the legislature and that the statute lawfully supercedes the grant of home rule powers. See Bd. of Appeals of Hanover, 294 N.E.2d at 409–10.
49 See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366–67 (2001).
50 See id.
51 See id. This is one of three methods of analyzing the validity of regulations adopted by a local government. See Daniel R. Mandelker et al., State and Local Government in a Federal System 18 (5th ed. 2002).
52 State ex. rel. Grand Bazaar Liquors, Inc. v. City of Milwaukee, 313 N.W.2d 805, 813 (Wis. 1982) The Wisconsin Supreme Court summarized the rational basis test as follows:
While we have recognized the presumption of constitutionality and the rather easily accommodated rational-basis test, we should not blindly rubber stamp legislation enacted under the guise of the city’s police power when careful review has revealed no logical link between the legislation and the objective it was enacted to effect.
Id.
53 See Nat’l Amusements, Inc. v. City of Boston, 560 N.E.2d 138, 140 (Mass. App. Ct. 1990).
54 Id. at 141 (“Despite the heavy momentum in favor of affirmation of local zoning action, the applicable principles are of judicial deference and restraint, not abdication.”).
55 U.S. Const. art. I–III.
56 See supra note 46 and accompanying text.
57 The Coastal Zone Management Act provides a limited exception. Coastal Zone Management Act, 16 U.S.C. §§ 1451–1464 (2000). The Act requires that federal, state, and local government activities within the defined coastal zone be consistent with state coastal zone management plans previously approved by the federal government. 16 U.S.C. § 1456(c)(1)(A)–(C), 1456(d).
58 Examples of state regulation of private property are limited. Exceptions include legislation enacted in Florida (areas of critical environmental concern), Massachusetts (on Cape Cod and Martha’s Vineyard via developments of regional impact), California, and North Carolina (developments in the coastal zone). See APA Guidebook, supra note 28, at 5-28.
59 Examples of regional agencies with regulatory authority are limited. Exceptions include the Pinelands Commission (New Jersey), the Cape Cod and Martha’s Vineyard Commissions (Massachusetts), the Adirondack Park Agency (New York), and the Tahoe Regional Planning Agency (Nevada and California). Id. at 6-20 to -21.
60 See Reynolds, supra note 43, at 410–11 (explaining how zoning developed as an improvement over lawsuits in nuisance).
61 Richard Babcock offers some explanation for why local control has lasted despite its problems:
Local control over use of private land has withstood with incredible resilience the centripetal political forces of the last generation. In an era of concentration of power, each blind man may offer a different explanation for the remarkable continuing strength of local control over land use. I believe this condition is explained in part by the conviction of the local decision-maker that he is more competent to decide these questions than is his professional counterpart in Albany, Columbus or Sacramento.
Babcock, supra note 7, at 19.
62 See Reynolds, supra note 43, at 465.
63 Id. at 110 n.14 (“Forty-eight states now provide some form of home rule for municipalities.”).
64 Advisory Comm’n Report, supra note 8, at 1 (“Unnecessary regulations at all levels of government stifle the ability of the private housing industry to meet the increasing demand for affordable housing throughout the country.”).
65 See, e.g., Karen Destorel Brown, Expanding Affordable Housing Through Inclusionary Zoning 2 (2001) (citing examples of affordable housing ordinances at the regional level).
66 See, e.g., Citizens’ Hous. & Planning Ass’n, Fact Sheet on Chapter 40B, at http://www.chapa.org/40b_fact.html (updated Jan. 2003) [hereinafter 40B Fact Sheet] (describing how Massachusetts’s Chapter 40B Comprehensive Permit Law (Comprehensive Permit Law or 40B) allows zoning boards of appeal to approve affordable housing projects even if they do not strictly meet all local zoning ordinances, in effect removing the presumption of validity).
67 See Advisory Comm’n Report, supra note 8, at 3.
68 See, e.g., id.; Pennsylvania Planning, supra note 37, at 1.
69 See generally Advisory Comm’n Report, supra note 8 (cataloging the impact of regulatory barriers on the creation of affordable housing). A letter accompanying the Advisory Committee’s Report to President George H.W. Bush from the Secretary of the Department of Housing and Urban Development, Jack Kemp, described the report as a “call to action” for federal, state, and local governments. Id.
70 Dep’t of Hous. and Urban Dev., Regulatory Barriers Clearinghouse, at http://www.huduser.org/rbc/ (last updated Dec. 20, 2002). Note the accompanying commentary on the Web site, under the topic “fees and dedications,” wherein the “[S]tate of Oregon’s comprehensive land use planning coordination” is critiqued due to the fact that “state law requires counties and cities to have plans” and the State of Maine’s “smart growth” plan is criticized due to the proposal that water and sewer extensions be channeled to designated areas only. Id.
71 See generally, e.g., Nat’l Ass’n of Home Builders, 2001–2002 Legislative and Regulatory Policy (2001).
72 See generally, e.g., Ariz. Hous. Comm’n, The State of Housing in Arizona 2000 (1999); Colo. Barriers Report, supra note 30; Governor’s Special Comm’n on Barriers to Hous. Dev., Commonwealth of Mass., Report of the Governor’s Special Commission on Barriers to Housing Development (2002); Pennsylvania Planning, supra note 37; Office of the Legislative Auditor, State of Minn., Affordable Housing (2001).
73 See discussion infra Part IV.
74 See discussion infra Part III.
75 Chapter 774 of the Acts of 1969 was referred to in the original House Bill (5429) as the “Anti-Snob Zoning Act.” Act of August 23, 1969, ch. 774, 1969 Mass. Acts 712. The phrase and its attendant implications have stuck and remain a weapon of choice among the statute’s supporters. See, e.g., Snob Zoning Alert, supra note 5, at A22.
76 See, e.g., Fla. Stat. Ann. § 187.201(5)(a) (West 2002); R.I. Gen. Laws § 45-22.2 to -22.3 (1999); Wash. Rev. Code Ann. § 36.70A.020 (West 2002). Each of these statutes are designed to increase production and ensure availability of low- and moderate-income homes and rental units.
77 S. Burlington Co. NAACP v. Township of Mount Laurel, 456 A.2d 390 (N.J. 1983) [Mount Laurel II]; Mount. Laurel I, 336 A.2d 713 (N.J. 1975). The Mount Laurel holdings espoused several important public policy positions—from the bench—and may be best known for the establishment of the “builder’s remedy,” a judicially-sanctioned override of local regulations to support the development of affordable housing. Perceived by some as a draconian intervention into the traditional home rule powers of New Jersey’s cities and towns, the Mount Laurel holdings are tame when compared with the Massachusetts statute and resulting case law. But see Jerold S. Kayden, Editorial, Who Decides Housing Issues, Boston Globe, Aug. 11, 2002, at D7 (concluding that the Massachusetts approach is less intrusive than New Jersey’s). The following remarks from the New Jersey Supreme Court highlight the differing perceptions of the respective courts:
The lessons of history are clear, even if rarely learned. One of those lessons is that unplanned growth has a price: natural resources are destroyed, open spaces are despoiled, agricultural land is rendered forever unproductive, and people settle without regard to the enormous cost of the public facilities needed to support them. Cities decay; established infrastructures deteriorate for lack of funds; and taxpayers shudder under a financial burden of public expenditures resulting in part from uncontrolled migration to anywhere anyone wants to settle, roads leading to places they should never be . . . . More than money is involved, for natural and man-made physical resources are irreversibly damaged. Statewide comprehensive planning is no longer simply desirable, it is a necessity recognized by both federal and state governments.
Mount Laurel II, 456 A.2d at 429. The SJC, bowing in deference to the legislature, have not taken a similar position:
The Legislature’s zoning power may be used ‘where the interests of the public require such action and where the means employed are reasonably necessary for the accomplishment of the purpose.’ Within these broad limits, the General Court is the sole judge as to how and when the power is to be exercised as long as it acts in accordance with the powers reserved to it by s. 8 of the Home Rule Amendment.
Bd. of Appeals of Hanover v. Hous. Appeals Comm., 294 N.E.2d 393, 424 (Mass. 1973) (quoting Simon v. Town of Needham, 42 N.E.2d 516, 517 (Mass. 1942)).
78 Low and Moderate Income Housing Act, 1969 Mass. Acts 712 (codified as amended at Mass. Gen. Laws ch. 40B, §§ 20–23 (2000)). Discussed in detail, the statute is “anti-suburban.” A well-respected, long-time advocate of affordable housing in Massachusetts, who asked to remain anonymous, told the author that the statute was designed to “break the backs of the suburbs.” To that end, the statute has and will always be, very successful. A more refined way of stating the objective is as follows: “Opening up the suburbs to low-income housing is an essential element in a long-term strategy for revitalization of urban neighborhoods. Moreover, suburban isolation threatens the economic well being of the entire metropolitan region and thus harms suburban as well as urban residents.” Note, State-Sponsored Growth Management As a Remedy for Exclusionary Zoning, 108 Harv. L. Rev. 1127, 1127–28 (1995). Clint Bolick adds:
The problem with this anti-suburban view is that these cities—and they are cities—are not really the bland, faceless, non-communities described in social studies textbooks. People live here. People choose to live here, and they chose not to move out. In fact, suburban residents are less likely to move than their central city counterparts.
Clint Bolick, Subverting the American Dream: Government Dictated “Smart Growth” is Unwise and Unconstitutional, 148 U. Pa. L. Rev. 859, 867 (2000) (citing Sam Staley, Urban Sprawl: A Grassroots Defense (Dec. 1997), at http://www.urbanfutures.org/opedstaley.html). The above-noted articles are decidedly opposed to governmental regulation of land use and they are cited here with caution. It is suspected, however, that individuals who perceive governmental regulation of land use as “paternalistic” would likewise rebel against the notion that using government as its agent, a speculator can cram-down an unlimited number of dwelling units on any parcel of land unconstrained by some rules.
79 Mass. Gen. Laws ch. 40B, §§ 20–23.
80Id. The ten percent requirement, however, can hardly be considered a “goal.” First, the “goal” is not tied to a plan or statewide process to match housing needs with housing development. Second, the “goal” presumes that every city or town has the same housing needs and thus the same needs for housing production, regardless of where the municipality is located, the historic development patterns of the community, or demands placed upon housing due to economic expansion or contraction. Third, the “goal” exists in a complete vacuum. It is contradictory to articulate a goal that is not linked, in some way, to any one of a variety of issues and concerns that face city and town government on a daily basis.
81 Robert Goodman, After the Planners 59 (1971) (“I submit that we have made a botch of urban renewal to date. By and large, people don’t understand what we’re after—or even what we’re talking about. This is fortunate, for if they did, we’d all have to run for cover.” (Robinson F. Parker, Address to National 1968 Industrial Conference Board (Jan. 10, 1968) (quoting David A. Wallace, former Director of the Philadelphia Redevelopment Authority)).
82 See, e.g., Knudson v. City of Decorah, 622 N.W.2d 42, 45 (Iowa 2002); Brady v. City of Dubuque, 495 N.W.2d 701, 706 (Iowa 1993); In re Amendment to Recreation and Open Space Inventory of the City of Plainfield, 802 A.2d 581, 591 (N.J. Super. Ct. App. Div. 2002).
83 Referring to the nation’s highway program, the literal “vehicle” for the grand urban redevelopment plan, then-Pennsylvania Senator Joseph Clark stated, “It is presently being operated by barbarians. We ought to have some civilized understanding of just what we do to spots of historic interest and great beauty by the building of eight lane highways through the middle of our cities.” Tom Lewis, Divided Highways 200 (1997) (citing Richard O. Baumbach, Jr. & William E. Borah, The Second Battle of New Orleans 102 (1981)).
84 Wilton Sogg and Warren Wertheimer completed an exhaustive analysis of the urban renewal programs of the day in 1959. Among other observations, the study made clear the direct role federal and state subsidies had on the “success” of the renewal efforts. Note, Urban Renewal: Problems of Eliminating and Preventing Urban Deterioration, 72 Harv. L. Rev. 504, 528–32 (1959) [hereinafter Urban Renewal]. The authors noted:
The cost to municipalities of conducting urban-renewal programs is considerable, especially when the local public agency must acquire and clear an entire area . . . . In order to encourage urban renewal, the federal government is authorized to pay up to two-thirds of the net project cost if certain requirements are met by the city, including the submission of an acceptable workable program.
Id. at 511.
85 See generally Robert A. Caro, The Power Broker (1974). Caro critiques Robert Moses’s efforts in the New York metropolitan area:
[F]or though the money that built them was supposedly private money, the tax abatement that Moses arranged for them would, when totaled over the years, insure that the public investment in them would dwarf the private, and the powers that Moses utilized to make possible not only their construction but the assemblage of their site—eminent domain, street closings, utility easements—were all public.
Id. at 968; see Urban Renewal, supra note 84, at 535–36. The authors discussed the relationship between tax credits on the economic viability of building affordable housing:
A project which does not produce a satisfactory cash return on the invested cash equity may nevertheless prove advantageous if the impact of its tax consequences on the taxpayer’s business as a whole is considered. A project is desirable from an investment standpoint only if the annual “cash throw-off” is such as to return the initial investment within a relatively short-time . . . . Since a project which would produce little or no cash throw-off before federal income tax may thus produce a substantial loss for tax purposes in the early years, and since such a loss may be deductible from other income of the taxpayer, the tax savings produced thereby may make the project more desirable from an investment standpoint.
Urban Renewal, supra note 84, at 535–36.
86 Using federal and state dollars to lure the private sector into destroying the urban core was an undeniable mistake. The error lies, in large part, on ignoring the political, social, and environmental fabric of that portion of the city or town that was being destroyed. No plan guided the government’s actions. Where there was a plan, it was rendered irrelevant. Professor Mandelker wrote of the failure of urban renewal projects to incorporate the general, comprehensive plan into decisions regarding slum clearance and public housing development in 1967:
Since the statute speaks of a “legislative finding,” not of the general plan itself, a court asked to review for conformity to the provision plausibly could refuse to look behind the legislative determination to ascertain whether a general plan actually existed . . . . Now planning for individual projects could begin before the general plan was even adopted. By deferring the completion of the general plan until the submission of the final project plan, the federal agency allowed the content of the general plan to be influenced by ad hoc redevelopment decisions.
Daniel R. Mandelker, The Comprehensive Planning Requirement in Urban Renewal, 116 U. Pa. L. Rev. 25, 41–43 (1967).
87 Daniel Mandelker notes: “While planning has not had much influence on project selection, planning was intended to play a critical role in shaping project redevelopment. Federal legislation requires that the urban renewal project plan be related to the community plan.” Mandelker, supra note 86, at 33–34 (citing 42 U.S.C. § 1455(a)(iii) (1964) (omitted and replaced by 42 U.S.C. § 5316 (1976)). It was not until December, 2002, that the Comprehensive Permit Statute’s implementing regulations made any mention of a “comprehensive or master plan.” The regulation states: “The Committee may receive evidence of and shall consider the following matters: a city or town’s comprehensive plan, community development plan, or master plan and the city or town’s effort to implement the housing components of such plans.” Mass. Regs. Code tit. 760, § 31.07 (2002). It remains to be seen what weight the Housing Appeals Committee (HAC) grants this evidence; whatever weight is granted rests solely with HAC’s discretion. If history is any guide, however, the HAC will not allow logical plans to interfere with the statutory mandate. See, e.g., Interfaith Hous. Corp. v. Bd. of Appeals, No. 72-05, slip. op. at 14 (Mass. Hous. App. Comm. Feb. 13, 1974) (“The legislature, however, has not written into chapter 774 this admittedly existing combination of serious problems as a reason for denial of a comprehensive permit.”).
88 Mass. Gen. Laws ch. 40B §§ 20–23 (2000).
89 The utility commonly associated with negotiation is outweighed by the unpredictable results and anarchy, when applied in the context of land use regulation. Referring to the connection between planning and zoning, the New York Court of Appeals cautioned that without a comprehensive plan acting as a rational foundation for land use decisionmaking, zoning decisions “become nothing more than just a Gallup poll.” Udell v. Haas, 235 N.E.2d 897, 901 (N.Y. 1968).
90 The board of appeals is required to hear and rule upon the application on an expedited basis. A public hearing must be commenced within thirty days of receipt of the comprehensive permit application and a decision rendered within forty days of the close of the public hearing. Mass. Gen. Laws ch. 40B, § 21. Intrepid boards of appeal have learned that because virtually no comprehensive permit applicant ever presents a complete application to the board, they can prolong rendering a final decision by extending the public hearing process. See, e.g., Pheasant Ridge Assocs. v. Town of Burlington, 506 N.E.2d 1152, 1160 (Mass. 1987). This strategy is fraught with risk, however, and the HAC has signaled an available remedy: “When the local hearing has been unduly protracted, this Committee will entertain an appeal on the theory that the permit has been constructively denied.” Transformations, Inc. v. Townsend Bd. of Appeals, No. 02-14, slip op. at 4 n.3 (Mass. Hous. Appeals Comm., September 23, 2002) (emphasis added) (referencing Pheasant Ridge Assocs., 506 N.E.2d at 1160; Milton Commons Assocs. v. Bd. of Appeals of Milton, 436 N.E.2d 1236, 1239 (Mass. App. Ct. 1982)).
91 For example, the regulations governing subsurface disposal of waste water are “minimum regulations.” Mass. Gen. Laws ch. 111, § 31 (2000). Therefore, to protect locally specific resources from the impacts of viruses, nitrogen, or phosphorus found in wastewater effluent, a city or town may choose to expand the minimum setback between drinking water supplies and wastewater disposal systems (set by the State at 100 feet). See APA Guidebook, supra note 30, § 7-208, at 7-134 to -141. Notwithstanding the fact that this local regulation has a firm rational basis, the board of appeals can waive the additional setback imposed by the local regulation beyond the state requirement of 100 feet. Similarly, whereas the state Wetlands Protection Act grants review authority to the local conservation commission for activities occurring within 100 feet of a wetland resource, a local ordinance could grant authority within a greater distance (e.g., 150 feet). Mass. Gen. Laws ch. 131 §§ 40, 40A (2000); see Tortorella v. Bd. of Health of Bourne, 655 N.E.2d 633, 636 (Mass. App. Ct. 1995). It is presumed that the board of appeals may waive the difference between the state requirement and the local, more restrictive requirement. Note, however, that section 20 of chapter 40B clearly¾arguably intentionally¾omits the phrase “conservation commission” from the list of local boards whose regulations can be waived. Expressio unius est exclusio alterius (the specific mention of one thing is the specific exclusion of all things not mentioned).
92 Mass. Gen. Laws ch. 143, §§ 93–100 (2000); Mass. Regs. Code tit. 780, § 101.0–.6 (2002).
93 Mass. Gen. Laws ch. 131 §§ 40, 40A; Mass. Regs. Code tit. 310, § 10.01–.60 (2002).
94 Mass Gen. Laws ch. 30, §§ 61–62H; see Mass. Regs. Code tit. 301, § 11.01–.13 (2002); see also Mass. Exec. Order No. 385 (1996). Executive Order 385 (EO 385) discourages the use of state financing for projects that will develop previously undeveloped land or encourage land development in areas without adequate infrastructure. Although the phrase “sprawl” is not found within EO 385, it was clearly intended to minimize the use of state funds to encourage sprawl. See, e.g., Jay Wickersham, Managing Growth Without a Growth Management Statute: The Uses of MEPA, New England Planning, Apr. 2001, at 1. EO 385 applies to both the admission ticket to the board of appeals and the funding obtained to develop the comprehensive permit project. To date, MassHousing has ignored the requirements of EO 385. As discussed below, these actions are consistent with the agency’s belief that they are immune from state regulations governing the comprehensive permit process.
95 See Mass. Regs. Code tit. 310, § 15.001–.505; tit. 314, §§ 4.01–.06, 5.01–.19, 6.01–.10 (2002).
96 See, e.g., Mass. Regs. Code tit. 314, §§ 2.01–.12, 4.01–.06, 5.01–.19, 6.01–.10.
97 See, e.g., Mass. Regs. Code tit. 310, § 10.01–.60.
98 Contaminants behave differently in the subsurface depending upon the geologic environment. Contaminant pathways are predictable in a sand and gravel aquifer, for example on Cape Cod, whereas they are grossly unpredictable in bedrock environments, for example on Boston’s north shore or in the Berkshire communities. See, e.g., Sanjay Jeer et al., Nonpoint Source Pollution: A Handbook for Local Governments 35 (Am. Planning Ass’n, Planning Advisory Service Report No. 476, 1997).
99 Alexandra D. Dawson & Sally A. Zielinski, Environmental Handbook for Massachusetts Conservation Commissioners 194–95 (8th ed. 2000) Dawson and Zielinski note the virtues of passing local wetland regulations that are more restrictive than parallel state regulations.
There are several good reasons for increasing protection [beyond the state act]. The Wetlands Protection Act [the state act] is limited to protecting only eight wetland values . . . . Communities may wish to regulate work over a broader geographic area including wetlands not linked to water bodies and also including adjacent upland areas, work on which may affect wetlands and floodplains.
Id.
100 Mass. Gen. Laws ch. 23B, § 5A (2000).
101 Mass. Gen. Laws ch. 40B, § 23.
102 Mass. Regs. Code tit. 760, §§ 30.00, 31.00 (2000).
103 The SJC, however, may be signaling the Legislature that reform is due. In Zoning Board of Appeals of Wellesley v. Ardemore Apartments Ltd. Partnership, the SJC ruled that unless otherwise permitted by the city or town, the affordable dwelling units within a comprehensive permit project must remain affordable in perpetuity where the comprehensive permit violates local zoning regulations. 767 N.E.2d 584, 586 (Mass. 2002). The court said:
It may be that a comprehensive permit is essential for the construction of some affordable housing projects because of local zoning restrictions, and it may be that, in those situations, the absence of an affordability restriction expiration operates as an economic disincentive to developers to build affordable housing. The solution to that problem, however, lies with the Legislature.
Id. at 596–97. Furthermore, in Planning Board of Hingham v. Hingham Campus, L.L.C., the SJC ruled that 40B does not grant a municipal planning board standing to appeal the decision of a board of appeals. 780 N.E.2d 902, 908 (Mass. 2003). The SJC concluded that “‘[i]f the law is to be changed, the change can only be made by the Legislature.’” Id. (quoting Commonwealth v. Jones, 632 N.E.2d 408, 410 (Mass. 1994)).
104 Hadley W. Assocs. v. Haverhill Bd. of Appeals, No. 74-02, slip op. at 8 (Mass. Hous. App. Comm. Sept. 25, 1974) (“Nor does . . . the fact that Haverhill ranks among ‘the top ten cities in the Commonwealth with state and federal housing units in occupancy and progress’ imply that Haverhill has complied with any of the mathematical criteria for ‘consistent with local needs.’”).
105 C.S.R. Mgmt., Inc. v. Yarmouth Bd. of Appeals, No. 95-01, slip op. at 6–10 (Mass. Hous. App. Comm. Sept. 7, 1995).
106 Dexter St. L.L.C. v. N. Attleborough Bd. of Appeals, No. 00-01, slip op. at 10–12 (Mass. Hous. App. Comm. July 12, 2000).
107 Spencer Livingstone Assoc. Ltd. P’ship v. Medfield Zoning Bd. of Appeals, No. 90-01, slip op. at 12–17 (Mass. Hous. App. Comm. June 12, 1991).
108 Cedars Holdings, Inc. v. Dartmouth Bd. of Appeals, No. 98-02, slip op. at 2–3 (Mass. Hous. App. Comm. May 24, 1999).
109 Interfaith Hous. Corp. v. Bd. of Appeals of Gardner, No. 72-05, slip op. at 14 (Mass. Hous. App. Comm. Feb. 13, 1974). Prior to the decision, Gardner High School had lost its accreditation due to overcrowding, and the board based its denial of the comprehensive permit, in part, on the overcrowding of its public schools. The HAC reversed, however:
The unfortunate combination of overcrowded schools, high construction costs to provide more schools, and taxes already at the breaking point, is a sad fact of life that presently besets almost every municipality in the country . . . . Apparently, the legislature felt that existing needs for low and moderate income housing were so overriding as to have priority over the admittedly pressing problem of overcrowded schools.
Id.
110 Planning Office for Urban Affairs v. N. Andover Bd. of Appeals, No. 74-03, slip op. at 13–15 (Mass. Hous. App. Comm. May 5, 1975). The regulation setting the criteria for decisions of the HAC was revised, effective December 20, 2002, to include the following: “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.” Mass. Regs. Code tit. 760, § 31.07(3)(d) (2002). Two years prior to that revision, the Chairman of the HAC wrote, “What these cases make clear is that if towns take control of their own planning processes and put affordable housing on their agendas, their local autonomy will be respected under the Comprehensive Permit Law.” Werner Lohe, The Massachusetts Comprehensive Permit Law: Collaboration Between Affordable Housing Advocates and Environmentalists, Land Use L. & Zoning Dig., May 2000, at 3. The combination of the regulatory revision and the Chairman’s comments should give hope to cities and towns seeking to develop affordable housing in a state with no planning or consistency requirements. The facts, however, prove differently. Since the Chairman’s article, the HAC has: (1) overturned a denial by a board of appeals and approved a comprehensive permit in a community where the median sale price of a dwelling unit was less than the sale price of the deed restricted units permitted by the Committee’s order; (2) reversed a decision by a board of appeals denying a comprehensive permit to build on a parcel of land noted “Not A Buildable” lot, holding that such a notation could be waived in the pursuit of affordable housing; (3) concluded that the legislature’s definition of satisfying the statutory obligation for the total land area that is devoted to affordable housing is measured by the land area in which the building occurs and not the total area of the parcel subject to the development. See generally Delphic Assocs. v. Middleborough Bd. of Appeals, No. 02-11 (Mass. Hous. App. Comm. Dec. 23, 2002); Cloverleaf Apartments, L.L.C. v. Zoning Bd. of Appeals of the Town of Natick, No. 01-21, slip op. at 2–3 (Mass. Hous. App. Comm. Mar. 4, 2002); Woodridge Realty Trust v. Ipswich Bd. of Appeals, No. 00-04 (Mass. Hous. App. Comm. June 28, 2001).
111 Woodcrest Vill. Assocs. v. Bd. of Appeals of the Town of Maynard, No. 72-13, slip op. at 27 (Mass. Hous. App. Comm. Feb. 13, 1974).
112 Coop. Alliance of Mass. v. Taunton Bd. of Appeals, No. 90-05, slip op. at 14–15 (Mass. Hous. App. Comm. Apr. 2, 1992). In Cooperative Alliance, HAC reinforced the relative lack of importance of local needs:
But this cannot mean that any condition which insures adequate water supply is automatically consistent with local needs. If this were the case, any town wishing to block affordable housing could simply identify a legitimate local concern and then require that it be remedied in the most expensive way possible. Thus we believe that also implicit within the definition of consistency with local needs is that any condition be reasonable.
Id.
113 269 N.E.2d 270 (Mass. 1971).
114 Id. at 274.
115 Among the most noteworthy revisions are: (1) a limitation on the number of dwelling units that can be developed per application depending upon the size of the community; (2) a twelve-month “cooling off” period between the filing of a market rate development plan and the filing of a comprehensive permit; and (3) an ability of a city or town to prepare a housing plan and thus deny or condition comprehensive permits if the city or town creates qualified housing units that amount to at least three-quarters of one percent of the community’s total housing stock per year. Mass. Regs. Code tit. 760, § 31.07(1)(g)–(i) (2002). Note that in each case, however, the ability to deny or condition a comprehensive permit remains an option for the board of appeals even where the city or town would otherwise be “consistent with local needs.” Id. § 31.07(1)(g). Thus, no appeal by the applicant is allowed to the Housing Appeals Committee. The upshot of this permissive language is that the “lawlessness” and unpredictability of the statute remains in full force and effect even where the city or town has met the obligations set forth in the statute.
116 Before this Article went to press, over sixty bills are pending in the Massachusetts General Court pertaining to reform of the comprehensive permit statute. See, e.g., H.B. Nos. 813, 1566, 3391 183rd Gen. Ct. (Mass. 2003); S.B. Nos. 500, 561, 1799, 183rd. Gen. Ct. (Mass. 2003).
117 The HAC recently concluded that a board of appeals could not impose a requirement that the sale of affordable dwellings be subject to resale restrictions that survive bankruptcy or foreclosure by the lender as a condition of approval. Delphic Assocs., L.L.C. v. Hudson Bd. of Appeals, No. 02-11, slip op. at 8 (Mass. Hous. App. Comm. Dec. 23, 2002). This conclusion was based on the Committee’s belief that
there is no evidence that foreclosure is a common occurrence. Second . . . the town has a right of first refusal that permits it to step in and purchase the unit if no affordable purchaser can be located . . . . And, even if the unit is lost, the town is compensated, since it receives the windfall generated by the sale, which can [then be] put that to use for other affordable housing purposes.
Id. The consequences of this decision are staggering. Imagine a scenario in which a qualified income buyer purchases a dwelling in a comprehensive permit project that is ten times more dense than the underlying zoning permits. The “social benefit” of ignoring local zoning is complete. Twenty-five percent of the dwelling units are sold to needy purchasers. Later, some of the dwelling units are repossessed by the lending institution, through bankruptcy proceedings and for a variety of possible reasons. According to the HAC, these dwelling units can now be sold free of any affordability restriction. The “social benefit” that trumped local zoning and the historic deference to local police powers has disappeared. Having lost some of the affordable dwellings that count toward its ten percent quota, the community must go through the process over and over again. Is it “snob zoning” to demand that a tradeoff of trumping all local zoning regulations should be the protection of affordable dwelling units in perpetuity? The HAC justified its decision on the statement that “there is no evidence that foreclosure is a common occurrence.” Id. Well before the decision was issued, however, the Boston Business Journal reported that while the Massachusetts foreclosure rate was far below the rates of the early 1990s, government loan defaults were increasing in Massachusetts and nationwide. Donna L. Goodison, Residential Foreclosures Creep Up in the Bay State, Boston Bus. J., June 17, 2002, available at http://boston.bizjournals.com/boston/stories/2002/06/17/story7.html (last visited Mar. 4, 2003). The Boston Globe reports that foreclosures are likely to rise. Thomas Grillo, Mass. Home Foreclosures Fall in ’02 Low Interest Rates Cited; Bankruptcies Down 1.5 Percent, Boston Globe, Jan. 18, 2003, at E1 (“Many homeowners are eating up the equity in their house and it won’t be long before the value is gone and they find themselves in deep financial trouble.”). As if the HAC’s justification for allowing a foreclosure to wipe out the affordability restriction is not bad enough, the HAC suggests that if there is a foreclosure, the host city or town will be the beneficiary of a windfall. Delphic Assocs., No. 02-11, slip op. at 8. Surely, local officials must be puzzled by the hypocrisy of the HAC’s decision. Isn’t the point of the statute to develop affordable housing? Does the HAC really believe that the “windfall” will go to affordable housing creation when in fact, the money will be needed to compensate the city or town for the added cost burdens imposed by the destruction of local zoning and whatever plans and programs the city or town has in place?
118 An applicant can be a public agency, a nonprofit agency, or a “limited dividend organization.” Mass. Gen. Laws ch. 40B, § 20 (2000). A limited dividend organization is anyone who agrees to limit its profit to that set by the subsidizing agency. One of the most popular subsidizing agents is MassHousing. MassHousing has established a profit cap for fee projects at twenty percent, meaning that the total return on a fee development project cannot exceed twenty percent. Mass. Hous. Fin. Agency, Housing Starts Program Overview, at http://www.masshousing.com/sf/sf_cstrln.htm (last visited Mar. 4, 2003). Excess profits must be returned to the municipality for affordable housing purposes. This otherwise magnanimous gesture is actually a cruel hoax on the community at large. See sources cited infra note 144.
119 The validity of the letter has been the subject of much debate since a ruling by the HAC in 1999 that private banks that are members of the Federal Home Loan Bank of Boston can issue project eligibility letters. Stuborn Ltd. P’ship v. Barnstable Bd. of Appeals, No. 98-01, slip op. at 2 (Mass. Hous. App. Comm. March 5, 1999).
120 The regulation states, “To be eligible to submit an application for a comprehensive permit . . . the applicant and the project . . . . shall be fundable by a subsidizing agency under a low and moderate income housing subsidy program.” Mass. Regs. Code tit. 760, § 31.01(1)(b) (2002). Fundability, in turn, “shall be established by submission of a written determination of Project Eligibility by a subsidizing agency . . . .” Id. § 31.01(2).
121 Hous. Appeals Comm., Commonwealth of Mass., Guidelines for Local Review of Comprehensive Permits (1999), at http://www.state.ma.us/dhcd/components/hac/ guide.htm (last visited Feb. 2, 2003); see also Bd. of Appeals of Hanover v. Hous. Appeals Comm., 294 N.E.2d 393, 420 (Mass. 1973) In Board of Appeals of Hanover, the SJC discussed the importance of full disclosure and transparency in the 40B application process:
The board’s and the committee’s power to require full disclosure of the applicant’s present or planned property interest, and their power to grant conditional permits that do not become operative until the applicant has satisfied the funding agency’s property interest requirements, provide ample protection against the unlikely possibility of frivolous applicants who have no present or potential property interest in the site.
Id. One wonders what the court meant by the use of the word “potential.” See id. Any and all applicants have the potential of acquiring the necessary property interest in the site. See Mass. Regs. Code tit. 760, § 31.01(3) (specifying the extent of property interests).
Either a preliminary determination in writing by the subsidizing agency that the applicant has sufficient interest in the site, or a showing that the applicant or any entity 50% or more of which is owned by the applicant, owns a 50% or greater interest, legal or equitable, in the proposed site, or holds any option or contract to purchase the proposed site, shall be considered by the Board or the Committee to be conclusive evidence of the applicant’s interest in the site.
Id. The court in Board of Appeals of Hanover neglected to foresee how entrepreneurial applicants would satisfy this requirement. See 294 N.E.2d at 420–21 (discussing eligibility without mention of entrepreneurs). The requirement is presumably satisfied if a purchase and sales agreement is executed with terms highly favorable to the offeror. For example, a speculator executes a purchase and sales agreement with the owner of developed, underdeveloped, or marginal land contingent upon the receipt of a comprehensive permit for a density eight or ten times what the underlying zoning allows. No deposit is made, no expiration date is included, and no penalties are imposed for breach by the offeror. This will satisfy the regulatory requirements. See Mass. Regs. Code tit. 760, § 31.01(3). In the alternative, a landowner executes a purchase and sales agreement or a deed to herself as trustee of a trust. The beneficiary of the trust is herself. This purchase and sales agreement and/or deed will also satisfy the regulatory requirements. See id.
122 See Bd. of Appeals of Hanover, 294 N.E.2d at 420–21; Welch v. Easton Bd. of Appeals, No. 94-06, slip op. at 2–3 (Mass. Hous. App. Comm. Feb. 28, 1995) (citing Mass. Regs. Code tit. 760, § 31.01(2)) (“Prior to applying for a comprehensive permit, a proposal must be submitted to a subsidizing agency for preliminary approval, it is then ‘presumed fundable if a subsidizing agency makes a written determination of project eligibility . . . .’”).
123 See Mass. Regs. Code tit. 760, § 31.01(2)(b).
124 See 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, 397–98 (2001) (“The pattern of decisions by the HAC is striking: local zoning board decisions have been upheld in only 18 cases and overruled in 94 cases.”).
125 See Town of Duxbury v. Mass. Hous. Fin. Agency, No. PLCV2002-00298 (Mass. Super. Ct. filed March 12, 2002). The Town of Duxbury alleged that MassHousing failed to comply with the “gatekeeper” requirements of title 760, section 31.01 of the Code of Massachusetts Regulations. Id. MassHousing’s Answer denied that the relevant regulations are “binding upon MassHousing.” See Defendant’s Motion for Summary Judgment at 7, Town of Duxbury v. Mass. Hous. Fin. Agency (Mass. Super. Ct. filed Mar. 12, 2002) (No. PLCV2002-00298) (withdrawn). MassHousing advanced a similar argument: “It should be noted at the outset, that [MassHousing] is not, in any technical sense, bound to obey the rules promulgated by the HAC pursuant to Chapter 40B.” Id.
126 The irony is the fact that the project eligibility letter provides the applicant with an almost impenetrable presumption of validity, yet we know that the subsidizing agencies believe they have no responsibilities to comply with the regulations promulgated by the State, even if they performed the due diligence the courts and the public presume they have done. See Town of Duxbury, v. Mass. Hous. Fin. Agency, No. PLCV2002-00298 (Mass. Super. Ct. filed Mar. 12, 2002).
127 This fact raises the question as to the true underlying purpose of the statute. If, for example, the purpose of the statute was to create affordable housing units, units of housing that were affordable would count toward the required quota. Mobile homes, generally more affordable than “stick-built” homes, would thus count toward the municipal requirement. Mobile rental certificates, often referred to as “Section 8” vouchers, would also qualify. But the State’s leading advocate for affordable housing, the Citizens Housing and Planning Association (CHAPA), has continually opposed the counting of mobile homes and Section 8 vouchers toward the requirement: “If the Legislature agrees to count mobile homes and Section 8 vouchers, 67 communities will immediately go over the 10% affordable housing goal without building one new unit of housing.” Citizens’ Hous. & Planning Ass’n, The Impact of Counting Mobile Homes and Vouchers Under Chapter 40B, in Obtaining Comprehensive Permits 141 (MCLE, Inc., No. 2002-88006-25, 2002). Given CHAPA’s position, it seems clear that the goal of 40B might have very little to do with creating affordable housing, but rather simply the construction work related to the creation of housing. See id.
128 Recently, however, the HAC has upheld two comprehensive permit denials on Cape Cod. Stuborn Ltd. P’ship v. Barnstable Bd. of Appeals, No. 98-01, slip op. at 7–8 (Mass. Hous. App. Comm. Sept. 18, 2002) (finding that Barnstable’s comprehensive plan included an aggressive campaign to build affordable housing in each of the town’s villages); Dennis Hous. Corp. v. Dennis Bd. of Appeals, No. 01-02, slip op. at 5–6 (Mass. Hous. App. Comm. May 7, 2002) (finding that a fifty-unit building within a historic district would interfere too much with wetlands and stormwater runoff, and would leave no useable open space). It is important to note, though, that the HAC cannot overrule state legislation. See, e.g., Bd. of Appeals of N. Andover v. Hous. Appeals Comm., 357 N.E.2d 936, 940 (Mass. App. Ct. 1976). Because nine of the Cape’s fifteen towns have adopted comprehensive plans in accordance with the Cape Cod Commission Act (state legislation), these decisions could be read as precluding HAC interference with properly-promulgated comprehensive plans. At issue is how much noblesse oblige should be afforded the HAC by these decisions. One view is that the HAC was aware of the overwhelming evidence that the Cape Cod towns (through the Cape Cod Commission Act) have been developing affordable housing at a faster pace and more equitably through the inclusionary requirements of the Cape Cod Commission Act. A reversal by the HAC may have illustrated that the Comprehensive Permit Statute cares little about municipal efforts to build affordable housing and far more about getting housing built, anywhere, without regard to promulgated rules or regulations.
129 See Krefetz, supra note 124, at 398 (“It is quite significant that in cases appealed to the HAC, the Committee rarely has found that the local decision was ‘reasonable and consistent with local needs.’”).
130 The range of estimates is extreme, but averages approximately 25,000. See id. at 392 (stating that as of 1999, over 21,000 dwelling units, 18,000 of which are affordable, have been built using the Comprehensive Permit Statute); Thomas Frillo, The Other Lottery Priced Out? With the Anti-Snob-Zoning Law and a Little Luck, You’ll Be in the Market, Boston Globe, Dec. 8, 2002, at J1 (reporting that as of December, 2002, 30,000 affordable dwelling units have been built); 40B Fact Sheet, supra note 66 (reporting that since 1970 more than 400 developments have been built in more than 200 communities, representing approximately 30,000 units of affordable housing).
131 A careful review of three decades of decisions by the HAC and the administrative code governing the Committee evidences what DeTocqueville labeled “administrative despotism”:
Over this kind of men stands an immense, protective power which is alone responsible for securing their enjoyment and watching over their fate. That power is absolute, thoughtful of detail, orderly, provident and gentle. It would resemble parental authority if, father like, it tried to prepare its charges for a man’s life, but on the contrary, it only tries to keep them in perpetual childhood . . . . Why should it not entirely relieve them from the trouble of thinking and all the cares of living?
. . . .
Having thus taken each citizen in turn in its powerful grasp and shaped him to its will, government then extends its embrace to include the whole of society. It covers the whole of social life with a network of petty, complicated rules that are both minute and uniform, through which even men of the greatest originality and the most vigorous temperament cannot force their heads above the crowd. It does not break men’s will, but softens, bends, and guides it; it seldom enjoins, but often inhibits, action; it does not destroy anything, but prevents much being born; it is not tyrannical, but it hinders, restrains, enervates, stifles, and stultifies so much that in the end each nation is no more than a flock of timid and hardworking animals with the government as its shepherd.
. . . .
A great many people nowadays very easily fall in with this brand of compromise between administrative despotism and the sovereignty of the people.
Alexis DeTocqueville, Democracy in America 692–93 (George Lawrence trans., J.P. Mayer ed., Harperperennial 1988).
132 Mario Cuomo eloquently illustrated this point:
“Survival of the fittest” may be a good working description of the process of evolution, but a government of humans should elevate itself to a higher order, one which tries to fill the cruel gaps left by chance or by wisdom we don’t understand. I would rather have laws written by Rabbi Hillel or Pope John Paul II than by Darwin.
Mario Cuomo, First Inaugural Address, in More Than Words 7, 10 (1993).
133 See discussion supra Part II.
134 See Mandelker et al., supra note 51, at 26 (articulating the principle that although the United States Constitution places express limits on the powers of the federal government, state constitutions place no such limitations on the exercise of state power, which is bound only by the limits of due process).
135 See State v. Ludlow Supermarkets, Inc. 448 A.2d 791, 794–95 (Vt. 1982) (noting that, unless a state law or regulation uses a suspect classification—one based upon race, sex, religion, or national origin—the judiciary will treat the governmental action with great deference).
136 A capital budget, often referred to as a capital improvement budget, provides a listing and method of payment for a city’s or town’s capital needs including: buildings (schools, police, and fire stations), infrastructure (water and wastewater treatment systems), and equipment (fire trucks, ambulances, and police cruisers). Robert Berne & Richard Schramm, The Financial Analysis of Governments 58 (1986). Capital budgets (and capital plans, a long-range projection of capital needs) are the foundation of impact fee programs. See, e.g., N.H. Rev. Stat. Ann. § 674.21(V)(a) (1996) (requiring that impact fees “be a proportional share of . . . capital improvement costs . . . reasonably related to the capital needs created by the development”).
137 See Mass. Regs. Code tit. 760, § 31.05(1) (2002) (“Consistency with local needs is the central issue in all cases before the Committee.”) Recall that the “consistency with local needs” standard is satisfied when a city or town builds the requisite number of dwelling units consistent with the ten percent quota requirements. See Mass. Gen. Laws ch. 40B, § 20 (2000).
138 See Black’s Law Dictionary 84 (6th ed. 1990) (defining anarchy as the “absence of government . . . destructive of and confusion in government . . . . At its best it pertains to a society made orderly by good manners rather than law, in which each person produces according to his powers and receives according to his needs . . . .”).
139 See Abraham Bell & Gideon Parchomovsky, Givings, 111 Yale L.J. 547, 577–89 (2001) (arguing the flipside to the traditional concept that individuals should be compensated for “takings” and asserting that governments should also be compensated for “givings” in certain cases). The use of the phrase “givings” in this Article is adopted from this work. See id.
140 See generally, e.g., Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002); Dolan v. City of Tigard, 512 U.S. 374 (1994); Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987); Agins v. City of Tiburon, 447 U.S. 255 (1980); Penn. Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978); William Haas & Co. v. City of San Francisco, 605 F.2d 1117 (9th Cir. 1979).
141 See Daniel J. Curtin, Jr. et al., Inclusionary Housing Ordinance Survives Constitutional Challenge in Post-Nollan-Dolan Era, Land Use L. & Zoning Dig., Aug. 2002, at 3 (arguing that inclusionary housing ordinances could withstand a facial constitutional challenge).
142 Neither the statute nor the regulations governing the HAC define the profit allowed a comprehensive permit developer. This raises three significant problems. First, the National Association of Home Builders determined that the average profit margin earned by home builders in the country, before taxes, is approximately 6.35%. Nat’l Ass’n of Home Builders, The Business of Building 8 (2001). Yet the subsidy programs used in the comprehensive permit program for fee based projects allow a twenty percent profit. See, e.g., Home Ownership Div., MassHousing, Housing Starts, available at http://www. masshousing.com/sf/housingstarts/housingstarts.htm (last visited Feb. 2, 2003). Second, the cost accounting to determine the actual profit earned by an applicant is suspect. To avoid reaching the twenty percent profit cap, an applicant merely needs to “increase” his costs associated with the project. Increases in “overhead” or “project management” are categories that provide for almost unlimited deception. Third, and perhaps most disturbingly, because the statute requires that the local board not deny or saddle an approval with so many conditions as to render the project “uneconomic,” a clever applicant merely submits a pro forma estimate weighted with development costs. See Mass. Gen. Laws ch. 40B, § 20 (2000). This will result in a pro forma profit well below the twenty percent cap. The most notorious of these schemes includes the applicant selling the land that he bought for $150,000 to himself for $2,000,000, for example. This “transaction” purports to show a land acquisition cost high enough to cram an endless number of dwelling units on the land without the project ever reaching the twenty percent cap. And because the calculation of the allowed profit is made during the local deliberative process, this charade allows the developer dwelling units far in excess of what is required to keep the project from becoming “uneconomic.”
143 See Penn. Cent., 438 U.S. at 136–37.
144 See discussion supra Part III.
145 Id.
146A pending question is whether the costs imposed by a comprehensive permit project violate the prohibitions against “unfunded mandates,” the so-called Proposition 2 1/2 tax cutting amendment enacted in 1981. See Mass. Gen. Laws ch. 29, § 27C (2000). There can be no doubt that the comprehensive permit project is “unfunded.” There can be no doubt that the statutory scheme established by 40B is a “mandate.” At issue is whether the requirements imposed upon the State by the statute are triggered since 40B was enacted before chapter 29. See id. § 27C; Mass. Gen. Laws ch. 40B, §§ 20–23 (2000).
147 Barbara Ehrlich Kautz, Comment, In Defense of Inclusionary Zoning: Successfully Creating Affordable Housing, 36 U.S.F. L. Rev. 971, 973 (2002) (stating that policymakers and citizens across the country promote inclusionary zoning as a way to solve shortages of affordable housing). An additional solution is the use of impact fees, one-time charges against new development to raise revenue for public facilities needed by the new development. Arthur C. Nelson, Development Impact Fees: The Next Generation, in Exactions, Impact Fees and Dedications: Shaping Development and Funding Infrastructure in the Dolan Era 87 (Robert H. Freilich & David W. Bushek eds., 1995). Unfortunately, impact fees are not authorized in the Commonwealth of Massachusetts with the exception of towns on Cape Cod. See, e.g., Emerson Coll. v. City of Boston, 462 N.E.2d 1098, 1107 (Mass. 1984) (holding that an augmented fire services availability charge was neither a valid municipal users fee nor a valid excise tax and therefore did not conform to constitutionally-permissible forms of monetary exaction); Greater Franklin Developers Ass’n v. Town of Franklin, 730 N.E. 2d 900, 902 (Mass. App. Ct. 2000) (using the Emerson College analysis to find that a “school impact fee” was neither a permissible tax nor a valid municipal fee because it “failed to benefit fee payers in a manner not shared by other members of the community”). By virtue of the Cape Cod Commission Act, towns on Cape Cod that have a comprehensive plan, certified by the Cape Cod Commission, are enabled to impose impact fees on new development. Cape Cod Commission Act of 1989 § 9(c), 1989 Mass. Acts 716; see Mass. Gen. Laws ch. 40B, § 4. The grant of authority to Cape Cod towns to impose impact fees (as well as enter into development agreements that would otherwise be deemed illegal contract zoning) coincides with the Cape Cod Commission Act’s requirement of comprehensive plan development and consistency with the Regional Policy Plan for Cape Cod. Cape Cod Commission Act of 1989 § 9(c), 1989 Mass. Acts 716; see Mass. Gen. Laws ch. 40B, § 4. Whereas towns are not required to prepare and have certified a comprehensive plan, nine of the fifteen towns have certified plans and the remaining six are presumed to have plans in place by the end of 2004. See generally Exactions, Impact Fees and Dedications: Shaping Land Use Development and Funding Infrastructure in the Dolan Era, supra (providing additional information on impact fees).
148 See Andrew G. Dietderich, An Egalitarian’s Market: The Economics of Inclusionary Zoning Reclaimed, 24 Fordham Urb. L.J. 23, 47–48 (2001) (asserting that Massachusetts has a form of voluntary inclusionary zoning). Section 9 of chapter 40A of the Massachusetts General Laws authorizes increases in density above that allowed by the underlying zoning upon the set aside, of among other things, affordable housing units. Mass. Gen. Laws ch. 40A, § 9 (2000 & Supp. 2002). The limitation to this enabling authority is that a special (adjudicative) permit is required from a local board, thus increasing the odds that the local board will exact additional public benefits from the developer and decreasing the odds that the developer will be able to challenge the exaction upon appeal successfully. See id. Simply put, the special permit requirement creates an option that few developers will choose given the other option available to them—a comprehensive permit. Mass. Gen. Laws ch. 40B, §§ 20–23. As a result, inclusionary zoning in Massachusetts will never achieve successful results and, as long as the comprehensive permit option is available, is unlikely to be an option selected by a developer.
149 See Mass. Gen. Laws ch. 40B, § 2 (“The purpose of this chapter is to permit a city or town to plan jointly with cities or towns to promote with the greatest efficiency and economy the coordinated and orderly development of the areas within their jurisdiction and the general welfare and prosperity of their cities.”). An easy solution to the affordable housing crisis, however, is not so attractive to some. The benefits attributed to the comprehensive permit developer are too good to be true. As discussed, in exchange for offering twenty-five percent of the units below market, he can develop land at unlimited densities. See supra Part III. He is not constrained by local rules and regulations. He can appeal to a state agency whose record of accomplishment ensures his success. His “profit cap” is far greater than he would ever achieve developing market-rate dwellings (twenty percent of total development costs for a fee-based project and a ten percent annual rate of return for rental projects). Clever accounting practices avoid the need to worry about the cap. Given all these benefits, why would the development community embrace inclusionary zoning, a process that makes the developer share in the community’s burden?
150 See APA Guidebook, supra note 28, §§ 8-601, 8-602, at 8-130 to -165 (listing various dedication, impact fee, and exaction requirements provided for in state statutes); Fred Bosselman, Dolan’s Mysteries Explained, Land Use L. & Zoning Dig., Jan. 1999, at 3.
151 Ehrlich v. City of Culver City, 911 P.2d 429, 439 n.6 (Cal. 1996) (noting that, regarding Nollan and Dolan, “[s]cholarly comment on the two cases is almost unmanageably large”).
152 A study completed in 2002 concluded that over 50,000 affordable dwelling units had been created in California via inclusionary regulations. Kautz, supra note 141, at 979. The inclusionary-housing ordinance of Montgomery County, Maryland has produced almost 11,000 affordable dwelling units. Karen D. Brown, Brookings Inst. Ctr. on Urban Metro. Policy, Expanding Affordable Housing Through Inclusionary Zoning: Lessons from the Washington Metropolitan Area 2, 16 (2001) (“Many jurisdictions throughout the country have implemented inclusionary zoning ordinances, from Burlington, Vt. to Santa Fe, N.M. to dozens of communities in California. Nationwide, Montgomery County, Md. has been the most successful.”); Cummins, supra note 9, at 216 (“If cities in the metro area [Minneapolis-St. Paul] were to adopt this approach [inclusionary zoning], up to $15,000.00 per housing unit could be saved and nearly 40,000 affordable units could be built within twenty-five years.”).
153 Kent Conine, former vice president and current president of the National Association of Homebuilders, while not overtly opposed to inclusionary zoning requirements, raises an interesting question of equity:
Do programs impose a cost, and if so, who bears that cost—the builder or the purchaser of the market rate homes? If there is a cost to the builder (even if only in more work or regulatory complications), is it fair for the builder to shoulder the cost of providing a needed social good?
Kent Conine, A Home Builder’s Policy View on Inclusionary Zoning, New Century Housing (Ctr. for Hous. Pol’y, Washington, D.C.), Oct. 2000, at 27. Of interest, is applying Mr. Conine’s comments to the Massachusetts comprehensive permit statute. In that case, there is no cost to the builder for building affordable dwellings. Rather, as discussed previously, there is an unearned and unpaid for gift. Mr. Conine, and presumably most land developers, would argue that the cost should be born by the community at large and not by a private developer alone. But it could reasonably be argued that the burden should not be born solely by those abutting a 40B development. In fact, that is the net result of the Massachusetts comprehensive permit statute. Those abutting the proposed project, individuals who could not have predicted the development’s scale or impact, are left shouldering the burden of the legislature’s mandate. In essence, the abutters to a 40B project are held accountable for their municipality’s “failure” to achieve the 40B mandate of affordable housing.
154 Others note that there are several other techniques that have proven useful in the creation of low- and moderate-income housing units. See, e.g., John M. Payne, Fairly Sharing Affordable Housing Obligations: The Mount Laurel Matrix, 22 W. New Eng. L. Rev. 365, 374 (2001) (“[I]nclusionary zoning is not an end in itself; it is only one example . . . . Consider some of the other market regulation techniques that might easily be required as part of a Mount Laurel compliance program: rent control laws, anti-gentrification laws, restrictions on condominium conversions, and zoning for ‘mobile’ homes.”).
155 This requirement points out yet another irony of the Massachusetts comprehensive permit statute. Not formally enabled to adopt inclusionary zoning requirements, Massachusetts cities and towns could hardly be expected to keep pace with the ten percent requirement sufficient to keep an applicant from an entitlement to, and approval from, the HAC. Simply put, for every market-rate building permit issued in Massachusetts, the city or town falls one-tenth of a percentage point behind the Sisyphean quota. Perhaps it is no wonder that less than thirty of the State’s 351 cities and towns have met this target in the thirty-four years since the statute was enacted. Dep’t of Hous. and Community Dev., Ch. 40B Subsidized Housing Inventory Through October 1, 2001 (revised Apr. 24, 2002), at http://www.state.ma.us/dhcd/components/hac/HsInvRev.pdf.
156 See Brown, supra note 152, at 2.
157 An example of a fees-in-lieu-of provision drafted for the Town of Duxbury, Massachusetts follows:
The applicant for development . . . may pay fees in lieu of the construction of affordable units. . . . [T]he fee in lieu of the construction or provision of affordable units is determined to be $200,000 per unit. For example, if the applicant is required to construct two affordable income units, they may opt to pay $400,000 in lieu of constructing or providing the units. Unless and until adjusted by Town Meeting, the fee in lieu of the construction of affordable units shall increase three (3%) percent every twelve months . . . .
Duxbury, Mass., Zoning Bylaws art. 560.12(1) (2003) (draft).
158 Although it is clear that adjudicative permitting is subject to judicial review based upon the tests enunciated in Nollan and Dolan, at issue is whether exactions such as fees-in-lieu-of the set-aside of affordable dwelling units is also measured against the “nexus” and “proportionality” standards. The Supreme Court narrowed the applicability of Nollan and Dolan to instances where real property—and not money—is the subject of the exaction. See City of Monterey v. Del Monte Dunes, Ltd., 526 U.S. 687, 702–03 (1999); E. Enters. v. Apfel, 524 U.S. 498, 541 (1998); Ehrlich v. City of Culver City, 911 P.2d 429, 439 (Cal. 1996). A more conservative approach, however, is to assume that the nexus and proportionality tests apply to all exaction, including the acceptance of fees-in-lieu-of the set-aside of affordable dwelling units.
159 Successful “urban” inclusionary zoning and linkage programs are numerous. See, e.g., San Francisco, Cal., Planning Code § 313 (2003) (requiring that commercial developers contribute land or money to a housing developer, or pay a fee to the city, to subsidize housing development as a condition of the “privilege” of development); Seattle, Wash., Municipal Code, § 22.210 (2003) (providing relocation assistance to low-income tenants displaced by demolition, substantial rehabilitation, or change of use of residential rental property, or the removal of use restrictions from assisted housing developments). Boston’s “linkage” program requires “the payment of a development exaction, or an equivalent in-kind contribution, for the creation of affordable housing and project-related job training programs.” Cynthia M. Barr, Boston Zoning: A Lawyer’s Handbook 93 (1997).
160 The statute has not been revised in thirty-four years. Repairs to the statute have been attempted through alterations to the governing administrative regulations.
161 For example, the Massachusetts Department of Housing and Community Development’s (DHCD) Local Initiative Program requires that the chief elected official of the city or town approve a comprehensive permit project before any review and approval by DHCD. Local Initiative Progam, Mass. Dep’t of Hous. and Cmty. Dev., Local Initiative Program Fact Sheet, at http://www.state.ma.us/dhcd/publications/fact_sheets/ lip.pdf (last visited Feb. 2, 2003). The local government approval is the “subsidy” that allows the project to move forward. See Mass Regs. Code tit. 760, § 45.04 (2002) (explaining the requirements for a valid Comprehensive Permit Project).
162 Massachusetts must unfortunately solve additional problems, such as the reformation of the State’s zoning and subdivision regulations. Portions of the Zoning Act have been referred to by the Massachusetts Appeals Court as “infelicitous.” Fitzsimonds v. Bd. of Appeals of Chatham, 484 N.E.2d 113, 115 (Mass. App. Ct. 1985); see Mass. Gen. Laws ch. 40A, § 9 (2000). The American Planning Association has also referred to the Massachusetts regulatory program as “confusing, outdated and restrictive.” Finucan et al., supra note 13, at 71.
163 California law requires that the comprehensive plan’s housing element contain programs to develop new affordable housing, preserve existing affordable housing stock, and identify locations for emergency shelters for the homeless.
164 The Rhode Island Low and Moderate Income Housing Act of 1956 was modeled after the Massachusetts comprehensive permit law. Rhode Island Low and Moderate Income Housing Act, R.I. Gen. Laws § 45-53-1 (1999 & Supp. 2003). The Act provides for an appeal to a state administrative agency (the State Housing Appeals Committee). Id. § 45-53-5. It also requires Rhode Island cities and towns to have ten percent of their housing stock subsidized. Id. § 45-53-3(2)(ii). A key distinction, however, is that Rhode Island is a plan state and a housing element is a required component of a city’s or town’s comprehensive plan. Id.; Rhode Island Comprehensive Planning and Land Use Act, R.I. Gen. Laws § 45-22.2-3(a)(4) (“Comprehensive planning and its implementation will promote the appropriate use of land. The lack of comprehensive planning and its implementation has led to the misuse, underuse and overuse of our land and natural resources.”). Precisely because Rhode Island is a plan state and cities and towns have adopted comprehensive plans to address affordable housing (recall that the Rhode Island requirements are otherwise the same as, and no less punitive than, Massachusetts’s), the Low and Moderate Income Housing Act defines “consistent with local needs” as the existence of ten percent subsidized housing or the existence of a housing element within a comprehensive plan that will enable the development of subsidized housing in excess of ten percent. R.I. Gen. Laws § 45-53-3(2). Thus, cities or towns that have adopted a comprehensive plan and regulations in accordance with the plan that support the development of affordable housing are deemed to have satisfied the state goal. Id. § 45-53-3.
165 As of the writing of this Article, the Department of Housing and Community Development has been charged with drafting guidelines for the preparation of a housing plan to achieve compliance with Massachusetts regulations. Mass. Regs. Code tit. 760, § 31.0 (2003). But as discussed throughout this article, achieving compliance with one statutory requirement does not ensure that other requirements or needs will be addressed in a coordinated fashion. Notwithstanding a municipality’s desire to comply with DHCD’s guidelines until the statute is reformed, this Article suggests that a successful recipe for the housing element of a comprehensive plan consist of the following steps: (1) an analysis of the city or town’s existing housing supply including determining the number and type of housing units, the occupancy of these units, and the cost to purchase or rent these units; (2) an analysis of the housing demand within the city or town;(3) an analysis of the city or town’s housing need. The need for affordable housing is generally determined using one of two approaches. First, goals consistent with the municipality’s comprehensive plan should be adopted. Second, the implementation of the housing element of a comprehensive plan requires adoption of regulatory and non-regulatory tools. The list of regulatory tools include inclusionary zoning; impact fees; development agreements; rezoning to accommodate multifamily development or greater density; adjudicative permit options; and use of the waiver provisions of the Subdivision Control Law to exact public benefits such as affordable housing. Mass. Gen. Laws ch. 41, § 81R (2000). Each of the above-noted tools is adopted, however, in concert with a comprehensive plan.
166 See Brad K. Schwartz, Note, Development Agreements: Contracting for Vested Rights, 28 B.C. Envtl. Aff. L. Rev. 719, 732–33 (2000).