The Proposed and Existing Law
This proposed law would repeal an existing state law that allows a qualified organization wishing to build government (tax-payer) subsidized housing that includes low or moderate income united to apply for single comprehensive permit from a city or town’s zoning board of appeals (ZBA), instead of separate permits from each local agency or official having jurisdiction over any aspect of the proposed housing. The repeal would take effect on January 1, 2011, but would not stop or otherwise affect any proposed housing that had already received both a comprehensive permit and a building permit for at least one unit.
Under the existing law, the ZBA holds a public hearing on the application and considers the recommendations of the local agencies and officials. The ZBA may grant a comprehensive permit that may include conditions or requirements concerning the height, site plan, shape or building materials of the housing. Persons aggrieved by the ZBA’s decision to grant a permit may appeal it to a court. If the ZBA denies the permit or grants it with conditions or requirements that make the housing uneconomic to build or to operate, the applicant may appeal to the state Housing Appeals Committee (HAC).
After a hearing, if the HAC rules that the ZBA’s denial of a comprehensive permit was unreasonable and not consistent with local needs, the HAC orders the ZBA to issue the permit. If the HAC rules that the ZBA’s decision issuing a comprehensive permit with conditions of requirements made the housing uneconomic to build or operate and was not consistent with local needs, the HAC orders the ZBA to modify or remove any such condition or requirement so as to make the proposal no longer uneconomic. The HAC cannot order the ZBA to issue any permit that would allow the housing to fall below minimum safety standards or site plan requirements. If the HAC rules that the ZBA’s action was consistent with local needs, the HAC must uphold it even if it made the housing uneconomic. The HAC’s decision is subject to review in the courts.
A condition or requirement makes housing “uneconomic” if it would prevent a public agency or non-profit organization from building or operating the housing except at a financial loss, or it would prevent a limited dividend organization from building or operating the housing without a reasonable return on investment.
A ZBA’s decision is “consistent with local needs” if it applies requirements that are reasonable in view of the regional need for low and moderate income housing and the number of low income persons in the city or town, as well as the need to protect health and safety, promote better site and building design, and preserve open space, if those requirements are applied as equally as possible to both subsidized and unsubsidized housing. Requirements are considered “consistent with local needs” if more than 10% of the city or town’s housing units are low or moderate income units, or if such units are on sites making up at least 1.5% of the total private land zoned for residential, commercial, or industrial used in the city or town. Requirements are also considered “consistent with local needs” if the application would result, in any one calendar year, in beginning construction of low or moderate income housing on sites making up more than 0.3% of the total private land zoned for residential, commercial, or industrial use in the city or town, or on ten acres, whichever is larger.
The proposed law states that if any of its parts were declared invalid, the other parts would stay in effect.
The Rationale for Voting YES
Voting YES means you are voting to repeal 40B Comprehensive Permits for Low or Moderate Income Housing. Consider these few facts for just a moment: Did you vote for any member on the zoning board of appeals (ZBA)? No, you did not. Did you vote for any member sitting on the housing appeals committee (HAC)? No, you did not. Did you vote for any sitting judge who will hear complaints filed by developers against Zoning Board of Appeals decisions? No, you did not. How much power does your State Representative and State Senator have to put an end to 40B projects in Billerica? Absolutely none.
In an earlier blog article I mentioned, with the help of Daniel Hannan, why it is important to put aside your cynicism of government and make the effort to vote. It is critical to choose wisely those candidates who you feel best represent you in order to get enough numbers of like-minded people in office who will make the effort to restore representative democracy. As that article states, we have been surrendering our liberty to unelected buearuocrats and have few, if any to hold accountable through the ballot.
We need to rid ourselves of these tyrannical buearucratic entities more than ever. We’ve reached a point where the people and the politicians have little meaningful voice. Our voice, the voice of the common citizen, is nothing more than a whisper in the wind. Our representatives have no more than a shout in the desert at midnight to offer to end afflictions such as the blight and expense that 40B projects and other bureaucratic entities put upon us. As a significant section of my referenced article discusses, unelected czars, committees, councils, etc. have taken power away (in this case Members of Parliament) from legislators to the point where a legislator with the greatest of intentions can no longer help a constituent in matters where prior legislators have ceded their authority. This is the unseen, unheard and seldom noticed locus of infection that is bleeding away our liberty.
40B housing policy and administration is no different for the following reason. It is a particularly nasty piece of legislation that removes all say from the voters, all authority from the legislature and transfers an obscene amount of power to a minority of unelected people to decide the fate of towns they have no personal interest in. As a result, no matter how much a 40B housing project may damage your neighborhood, how much it may damage your town budget, your schools, your infrastructure – you will have no say in the matter and no means for compensation from the Commonwealth. In the end, 40B is an unfunded mandate, and like all unfunded mandate it creates more harm than good.
You may attend the ZBA meeting, but you will not be allowed to speak. Even if you were allowed to speak, your words would be meaningless because the law is set up for a dialogue between the builder, the ZBA and the HAC. No representative of the local government who represents the interest of constituents is involved in the process and the primary parties could care less what you think or want.
This law did not write itself. It was written and passed by a majority of state legislators and state senators. It can be undone in the Legislature as well, but only when like-minded people are elected in sufficient numbers to allow the process to work. This election is just one more chance to put the right person into the State House who will fight to get opposing legislation on the table for a vote. It is also a chance to put a person into the governorship who will not veto legislation that the citizens care about and who will fight for the right of citizens to be heard on issues such as 40B.
If you stay at home, or if you vote for your legislator because he or she did you a favor; then you are only perpetuating and emboldening unelected bureaucrats to push for even more impact on your day-to-day lives and to strip you of your power by rendering your elected officials powerless. Elect the person who will fight more for your liberty to speak and to restore accountability to government and less of the one with witty zingers and charismatic appeal over substance, understanding and the will to get things done.
Vote YES on Question 2 and Vote for the Candidate Who, Like You, Also Wants A Repeal of Chapter 40B
Considering the current state and composition of the Legislature
