Frequently Asked Questions
What is “40B”?
Chapter 40B is a decades-old statute that provides an opportunity for developers to seek expedited permitting (a so called “comprehensive permit“). To qualify for the program, the developer’s must submit an application for eligibility under the applicable state agency. In this case, the developers have sought 40B eligibility with MassHousing. To be considered eligible, the following conditions must be satisfied:
At least 25% of the units must be deemed affordable, using a precise formula supplied by the state
The site and project design must be “generally appropriate”
The proposed project appears “financially feasible” within the housing market in which it is to be located
The regulations that govern M.G.L. c40B are 760 CMR 56, which give more precise details as to site applicability.
If the site is deemed eligible for the 40B program, the developer may then submit a comprehensive permit application to the Zoning Board of Appeals (ZBA). The developer will generally ask for a number of waivers from the Town’s zoning by-laws. For example, Ipswich restricts building height to 3 stories and 45 feet, and for land zoned as residential (RRA) restricts building heights to 3 stories and 37 feet. This project will ask that this be waived in their comprehensive permit application.
The ZBA will then conduct one or more public hearings. Expert analysis will be presented by the developers (regarding, e.g. traffic studies, stormwater management, etc.). The Town will have an opportunity to rebut these studies with their own expert analysis. During this time period, the Town and developer may, or may not, negotiate changes to the design. At the end of the allowed deliberation period, the ZBA will vote in one of three ways:
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To approve the permit as requested (and possibly modified by mutual agreement)
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To approve the permit, but with conditions not necessarily agreed upon by the developer
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To deny the permit
In the case of options #2 and #3, the developer may appeal the decision of the ZBA to the state Housing Appeals Committee (HAC). The ability to make such an appeal is unique to 40B-eligible projects. Overwhelmingly, the decisions of this body favor the developer, and vacate the ruling of the municipal ZBA. Developers know this, and thus their incentive to “negotiate” is minimal.
When does the Town get to vote on this proposal?
Never. We, as individual citizens, will never be asked to give out assent to this project. If this project is considered appropriate to move forward under the 40B statute by MassHousing, then sometime thereafter the developer will petition the Zoning Board of Appeals (ZBA) for a comprehensive permit. This is a request to satisfy all requested zoning variances and other permitting needs in one up-or-down vote. The ZBA will have 180 days to issue a ruling. That ruling is the only “vote” that our Town ever takes. Finally, any decision to deny this permit will undoubtedly result in an appeal to the Housing Appeals Committee (HAC).