Housing Advisory: DHCD Denies Town Planned Production "Safe Harbor" Under New 40B Regulations

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In a ruling significant because it applies a brand new regulatory procedure, the Massachusetts Department of Housing and Community Development (DHCD) has ruled that the Town of Wareham is not entitled to deny or condition a developer?s comprehensive permit under the Planned Production ?safe harbor.? The decision is only the second made by DHCD under new regulations implementing Chapter 40B, the state?s affordable housing law. Paul Wilson and Jon Cosco of Mintz Levin?s Housing Practice Group represented this developer in the proceedings.

Chapter 40B encourages the creation of new affordable housing by allowing the developer to seek a single ?comprehensive permit? from the Zoning Board of Appeals (ZBA) in lieu of all other local approvals. Since its inception, Chapter 40B has been a lightning rod for criticism by some municipal officials who feel that the statute strips them of the authority to make local land use decisions. In 2003, DHCD responded to this criticism by issuing regulations which created certain municipal ?safe harbors? which, once achieved, allow a local ZBA to deny

a comprehensive permit or condition a permit however it chooses; such denial or conditions will be presumed to be ?consistent with local needs,? foreclosing any developer appeal to the Housing Appeals Committee (HAC). In effect, once a safe harbor status is achieved, the qualifying city or town can pick and choose which 40B projects it wants to approve (if any at all).

Please see full advisory for more information.

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