Rural Low-Income Housing and Massachusetts Chapter 40B: A Perspective from the Zoning Board of Appeals
23 W. New Eng. L. Rev. 3 (2001)
The Massachusetts Low and Moderate Income Housing Act ("Act") was enacted in 1969 to promote the construction of low-income housing in restrictively zoned Massachusetts communities. It seeks to achieve its goal by providing a builder's remedy which, in effect, overrides local zoning ordinances. The local Zoning Board of Appeals ("ZBA"), in deciding whether to issue a Comprehensive Permit under the Act, must evaluate the local and regional need for low- to moderate-income housing and weigh that need against local concerns over health, safety, design, and open space conservation. This Article examines the difficulty of applying the Act in rural towns. First, it focuses on the role that the Act asks ZBAs to play in the approval process. Next it examines two issues arising in the application of the Act to rural communities: the determination of the "region" when there is no obvious city/suburb relationship, and the assessment of the need for low- to moderate-income housing in the region and the locality. The Article discusses how different results may be obtained if "need" is informed by an "in-place" approach to housing policy as opposed to a "mobility relief" approach. The Article concludes that public discussion about the Act's goals and the extent to which non-discriminatory local ordinances should receive deference deserve to be part of the public dialogue on housing policy.
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