I Finally Understand 40B…It’s Even Worse Than I Thought

The Newton Villages Alliance speaker series “Setting Our Course in Newton” kicked off this past Sunday afternoon with a discussion entitled “Answering 40B: The Challenge of Housing Affordability and Neighborhood Context in Newton”. The two guest speakers, Attorney and Professor Jonathan Witten and Attorney Dennis Murphy, answered moderator Julia Malakie’s and audience questions regarding 40B (subsidized) housing.

As described by Attorneys Witten and Murphy, 40B development is often contentious because there is not a clear, fair, or open playing field: 40B developers need not adhere to local zoning regulations; data that municipalities must submit to satisfy 40B “safe harbor” threshholds is often impossible to retrieve from the state agencies that record it; and there are few legal avenues to counter developers’ state-sanctioned special status. Additionally, the state’s 40B regulatory body, the Department of Housing and Community Development (DHCD) and the DHCD’s Housing Appeals Committee (HAC) refuse to engage in a a transparent and democratic process; meetings are closed to the public and there are no records of HAC deliberations.

It was not surprising to hear attorney Witten acknowledge that the coercive process of 40B development can set neighborhood against neighborhood, and, unfortunately, prompt unfounded accusations of “NIMBYism” or even racism.


NewtonForum.org will post a link to a videotape of the 40B event as soon as it becomes available. In the meanwhile, here is a link to audio only: http://yourlisten.com/NewtonVillagesAlliance/40b-forum-with-jon-witten-dennis-murphy-march-6-2016#

If you attended the event, what did you think?  What was the key take-away for you?

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Doug CorneliusLynne LeBlancKathleen Kouril GrieserJulia MalakieElaine Rush Arruda Recent comment authors
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Elaine Rush Arruda

The key takeaway for me was that Massachusetts is the ONLY state that has this law and is one of the least successful at producing affordable housing. Proof to me that it doesn’t work and should be replaced with an approach that actually does. We could learn a lot from the other 49 states! This event was so informative! I cannot wait for the next speakers in this series. If you were not able to attend, I highly recommend watching the video. I am confident that every attendee learned something, and was thrilled to see 6 city councilors there.
I had the great fortune to meet Mike Rezendes (Boston Globe Spotlight Reporter) today and he commented “without informed citizenry, democracy doesn’t work.”I couldn’t agree more…

Julia Malakie

I am struck by the lack of will among our legislators to do anything to reform the law, despite the abuses found by Inspector General Greg Sullivan in only a small sample of towns. You can read the series of reports here: http://www.mass.gov/ig/publications/reports-and-recommendations/chapter-40b-publications/chapter-40b-publication-list-container.html

I think the problem of the impossible-to-obtain acreage of Department of Developmental Services (DDS) group homes was a revelation to many people, and illustrates the lack of interest at the DHCD and the state in having communities actually meet one of the thresholds for immunity. For those of you not familiar with this problem, spaces in DDS group homes count toward the Subsidized Housing Inventory (SHI) for purposes of trying to meet the 10 percent of units threshold, but no one will tell the cities and towns the acreage of the land these homes sit on, for purposes of calculating whether the 1.5% Land Area Minimum threshold has been met. DDS refuses to release the addresses, claiming it would violate HIPAA, but also says they can’t provide the acreage because they ‘don’t have’ it. Never mind that I can look up the square footage of any address in Newton on the Assessors Database. Why won’t DDS do this and provide an aggregate acreage number that wouldn’t reveal individual addresses? Why won’t they let a trusted third party like a judge have the addresses? It’s an Alice in Wonderland, Kafkaesqe, Catch-22.

Kathleen Kouril Grieser

Julia Malakie did a masterful job moderating this valuable forum. Jon Witten and Dennis Murphy were compelling speakers, with complete command of everything there is to know about this deeply flawed, counterproductive statute. This is the kind of information that residents need – the truth.

Doug Cornelius
Doug Cornelius

40B was designed to be terrible for the city. It was designed to be coercive, forcing “affordable housing” on communities. But once the law’s threshold’s are met in Newton, 40B goes away as tool for developers.

Newton needs to meet that 10% threshold so it can wrestle back control of development in the city.