Chapter 40B Should Buy the Farm

By Dardeno, Kara L. | Suffolk University Law Review, Winter 2008 | Go to article overview

Chapter 40B Should Buy the Farm


Dardeno, Kara L., Suffolk University Law Review


"It's really the last remaining large piece of land in the entire town. It would just be an enormous loss not just for Winchester but really for the whole state, and really for the country. It's a property of national and even international significance. To see something like that disappear would just kill me because you can't reproduce it. It won't come back. It's gone forever." (1)

I. INTRODUCTION

Winchester, Massachusetts is a quaint New England town. (2) The town center, consisting of brick walkways and stone buildings, hosts small shops and boutiques with a limited number of commercial franchises bearing softened logos. (3) Large Victorian homes, a few buildings, churches, and other structures throughout the area surround the center of town. (4) Newer development located along the town lines has been limited to large, single-family dwellings. (5)

Although most of Winchester's six square miles are covered by homes and other structures, Winchester maintains its character through historic structures and green space. (6) In addition, the changing landscape of hills and valleys offers views that seem to defy the dense development. (7) Indeed, the town retains an old New England atmosphere. (8) Behind a sign bearing the words "THE FARM," one can catch a glimpse of green pastures, woods, and raspberry fields. (9)

Upon further examination, however, it becomes evident that this atmosphere has been consciously preserved. (10) Just down the street, at the bottom of a steep hill, an active intersection bears no traffic lights. (11) Sidewalks are scarce. (12) Removed from the center of town, there is no public transportation. (13)

It is thus unsurprising that residents disapproved when a large-scale development threatened to invade their neighborhood. (14) Residents were concerned that the developer would evade the local zoning laws by allocating a certain number of units to low-income housing on farmland of historical significance. (15) Additionally, the land, which contains wetlands, a pasture, and wooded areas, is of environmental significance. (16) Some residents also may have resisted the addition of low-income families to a community where most people belong to a country club. (17)

Massachusetts General Laws Chapter 40B (Chapter 40B) permits a developer to bypass local zoning laws by designating a number of units as low-or-moderate-income housing. (18) The Massachusetts legislature passed Chapter 40B in 1969 to counteract exclusionary zoning practices in suburban Massachusetts. (19) Exclusionary zoning restricts access to a community by instituting building standards that increase home prices. (20) Thus, exclusionary zoning incidentally bars low-or-moderate-income households and disproportionately restricts minorities. (21)

Zoning law implementation and enforcement has traditionally belonged to local, rather than state or federal government. (22) Chapter 40B, however, permits a state board to override local decisions prohibiting or restricting a proposed development that includes affordable housing. (23) Traditional zoning power returns to the locality only after 10 percent of the housing in a community meets the legislative definition of "affordable." (24) Thereafter, so long as 10 percent of the community's housing remains affordable, the locality need not grant permits to Chapter 40B developers. (25)

Winchester residents have been particularly cognizant of Chapter 40B since the former owners of the twenty-acre Hamilton Farm agreed to sell it to developer AvalonBay. (26) With merely 1.8 percent of its total units considered affordable under Chapter 40B, Winchester could not reasonably deny AvalonBay zoning rights under Chapter 40B. (27) Instead, Winchester exercised its right of first refusal under Massachusetts General Laws Chapter 61A, buying the land under the same terms as the Hamiltons had agreed to sell to AvalonBay. …

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