The region can find ways to promote housing production, plan consistency, and natural resources protection through revisions to the regulations that implement the state’s Comprehensive Permit law (MGL Chapter 40B).  Any revisions must recognize two key principles: different types of growth are appropriate in different locations; and each municipality has a responsibility to make substantive progress toward expanding its affordable housing stock.  

Housing developed through a comprehensive permit under MGL Chapter 40B has been a preeminent tool for the production of housing in Metro Boston, especially the production of affordable housing.  However, comprehensive permit applications are not required to demonstrate consistency with Commonwealth’s Sustainable Development Principles or regional land use plans.  For example, MAPC found that only 12% of 40B projects approved from 2000 – 2006 are within ½ mile of an MBTA subway or commuter rail station.  Continuation of these patterns may hamper efforts to focus growth near infrastructure and to preserve natural resources.  Of equal concern, some communities cite 40B as a disincentive to comprehensive municipal planning, with the justification that high-quality planning provides no insulation from 40B developments.  

There are currently three mechanisms through which municipalities have the authority to deny a Comprehensive Permit application:

• If 10% of the year-round housing stock is eligible to be included in the municipality’s Subsidized Housing Inventory (SHI);
• If SHI-eligible housing occupies more that 1.5% of the municipality's land area; or
• If the municipality has a Housing Production Plan (HPP) approved by the Department of Housing and Community Development (DHCD), and if DHCD certifies that annual production of SHI-eligible units meets a standard production target, equal to 0.5% of the year-round housing stock.

Two modifications would help to make the 40B program and the resulting housing production more consistent with the Sustainable Development Principles and MetroFuture, and might encourage more municipalities to create comprehensive plans to address housing and other issues:

• Modify Housing Production Plan guidelines to require consistency with the Commonwealth’s Sustainable Development Principles and the regional plan; and
• Modify regulations to allow municipalities to deny 40B developments in designated natural resource protection areas, as long as they have developed a comprehensive plan, consistent with MetroFuture, which includes significant and viable districts and/or policies to encourage housing production, and as long as they have taken concrete steps to implement those plans.

It should also be noted that Strategy 8 (Access to Housing) also includes recommendations that relate to Housing Production Plans.  Specifically, regulations might be modified to allow HPPs with annual production targets lower than 0.5% in low-density, slow-growing municipalities.  That recommendation is distinct from, and complementary to, the suggestions here.   

Housing Production Plan Consistency
Modifications to the Housing Production Plan guidelines are necessary to encourage housing production policies consistent with sustainable land use.  Current HPP guidelines state that municipalities should “consider” the Commonwealth’s Sustainable Development Principles when identifying “zoning districts or geographic areas in which the municipality proposes to modify current regulations for the purposes of creating SHI Eligible Housing.”  As for specific sites where the municipality will encourage the filing of a comprehensive permit application, the guidelines are somewhat more definite, requiring that sites be consistent with the Sustainable Development Principles “to the greatest extent possible.”  

However, HPP guidelines do not provide any specific criteria for determining such consistency.  Nor does the review process provide for assessment of consistency by the regional planning agency, which is arguably in the best position to affirm that production districts and specific sites are consistent with the regional plan.  As a result, there is no clear and consistent way to determine whether recommended sites are appropriately sited with regard to natural resources, infrastructure, or neighboring municipalities, or whether they will provide residents of new development with adequate access to shops, services, and transportation.  Furthermore, all SHI-eligible housing production counts toward the annual production target, regardless of whether it was developed in locations consistent with the HPP or the local land use plan.  

MAPC and other regional planning agencies should work with DHCD, housing advocates, and the environmental community to develop Sustainable Development criteria for HPPs and to establish a review process that includes review and approval by the regional planning agency.

Resource Protection Denials
Modifications to 40B regulations are necessary to protect natural resource areas in any municipality that has a comprehensive plan for housing production, but which may not have met the annual production targets.  Even with strong planning and community support, actual SHI-eligible production may lag behind the annual targets due to a slow housing market or financing woes that slow a particular development.  As a result, municipalities that have 40R districts—complete with higher-density zoning and by-right permitting—may still find themselves without the capacity to prevent 40B developments in sensitive environmental areas.  These uncertainties may discourage municipalities from investing in planning and production efforts.  

In order to reduce uncertainty and reward proactive planning, the 40B regulations should establish a new class of “resource protection denials” whereby municipalities that meet certain criteria could deny comprehensive permits in designated natural resource protection areas, and have those denials upheld by the Housing Appeals Committee.  This process would encourage municipalities to develop housing plans and designate locations for growth, while also providing for better protection of natural resources.  

To be eligible, a municipality would have to develop a comprehensive plan to develop housing along with a reasonable list of areas needing protection from development.  These plans should be determined by MAPC to be consistent with MetroFuture and the Commonwealth’s Sustainable Development Principles.  

The comprehensive plan for housing production could be an HPP, a set of 40R districts, establishment of locations zoned for multi-family housing, or a combination of steps which, when taken together, would constitute a significant and viable effort to spur housing growth.  Under any such plan, zoning should be in place to allow compact growth patterns and diverse housing types; should have sufficient capacity to accommodate 0.5% of the total year-round housing stock each year; and should incorporate mechanisms for prompt and predictable permitting.  Criteria for natural resource districts would include specific environmental or historic values; and those districts would be limited to a percentage of the unprotected developable land in the municipality.  (The percentage could be fixed or based on local conditions).  

Municipalities meeting these criteria would be allowed to deny 40B applications in the natural resource protection districts only, even if they have failed to meet the 0.5% annual housing production target.

19.a    MAPC and other regional planning agencies should work with DHCD, housing advocates, and the environmental community to develop Sustainable Development criteria for HPP and to establish a review process that includes review and approval by the regional planning agency

19.b    MAPC and regional planning agencies should work with DHCD, housing advocates and the environmental community to develop a proposal for “Resource Protection Denials.”

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