Various state agencies have continually determined that Newton has not met the 1.5 percent threshold that would provide a 40B exemption. So why does Mayor Warren’s Planning Department and ZBA continue to dispute that? Read Jonathan Dame’s latest story for Wicked Local Newton here.
State keeps saying Newton hasn’t met its 40B threshold. So why does the city keep claiming we have?
by Greg Reibman | Jan 9, 2017 | Affordable housing, zoning | 22 comments
It is my understanding that the Department of Housing and Community Development / Housing Appeals gang historically side with the developers all the time almost as a knee-jerk reaction.
Also, if golf courses are privately owned, how can they be classified as city-controlled “developable land” ???
Mark, in this case the golf courses are zoned such that they could be developed (I believe). So if the city or a developer choose to buy the property it could be developed. That means they don’t have any regulatory restrictions such as environmental or agricultural that would restrict development if the property were sold. They may zoned recreation right now or something else but there are no restrictions to rezoning. I don’t think they break it out as needing to be city-controlled either, it is total land area, of which most is under private control, be it industrial, commercial, or residential, or whatever the golf courses are considered.
Stop with the fighting already, we need more housing!
How much more do we need to get to the threshold??
Golf courses have a special exemption in state law that allows them to pay a substantially reduced property tax in exchange for a declaration that they will not be residentially developed. The state wants to ignore their own tax laws, so they can designate the city’s golf courses as developable land. Newton has met the threshold and the ZBA is handling this properly. But I’ve said all along that Mayor Warren should have engaged a private legal firm that specializes in 40B. It’s not a knock on the City Solicitor, but 40B has evolved into a convoluted and highly specialized field of law. The irony is, getting rid of 40B will actually result in MORE affordable housing for Newton. Austin Street and the Orr Block are two good examples.
@ John and Mike – Thanks for the info and clarification. Appreciate it!
Mike,
You’ve hit on the supreme irony (or at least unintended consequence) of the state’s open space and affordable housing laws: the former frustrates the latter. But, I continue not to understand your claim that 40B inhibits the development of affordable housing (a claim, if memory serves, you’ve been making for a long time). The city and developers are not forced to use 40B to develop affordable housing. If there are other better tools out there, 40B doesn’t preclude their use. So, how does 40B hurt?
There is an additional discussion layer here concerning 1615 Beacon Street that involves the Newton and the Mass. Historical Commissions, since the property is listed both on the National Register as well as on the Massachusetts Registry of Historical Properties. State regulations suggest that the competing concerns of two State agencies, Mass Historical (preservation) and Mass Housing (development of affordable housing), will need to be accommodated. The process for this “accommodation” is confusing at best! (Certainly, I am unable to shed any light on it!)
@Sean– 40B hurts, because it gives apartment developers the upper hand, which results in fewer affordable units for Newton.
Mike, I don’t get the logic. Are you saying developers want to develop when they don’t have the upper hand? Why would that be the case??
Tom– I’ll use the proposed project on Wells Ave as an example…
If the developer had been able to use 40B, the number of affordable units would have been defined by statute. When it was first determined they were blocked by a deed restriction and could not use40B, they offered the city millions of dollars for mitigation. The key to turning Wells Ave into a good deal for Newton, rests with the City’s ability to take those mitigation dollars, AND require the developer to include MORE affordable units than would be mandated by 40B.
I believe the Wells Ave case is on appeal. So we’ll see how it plays out. If the City takes a strategic approach and negotiates a deal with the developer, I would guess it will be along the lines of what I’ve suggested above.
@Mike: I believe you are overlooking something important.
If 40B didn’t exist to exert pressure on municipalities to meet the 40B requirement, municipalities would have no motivation to build any affordable housing at all… or as you suggest, negotiate for any affordable units with developers in non-40B situations.
@Greg– I have to point to Austin Street and the Orr block. Neither one a 40B project. Both resulting in more affordable units than would have been mandated by 40B. I don’t deny that 40B can generate affordable housing. But I think the trend in Newton is away from 40B and toward negotiated solutions that provide a higher percentage of affordable housing. I hope that’s the direction the City is heading on Wells Ave, because the right deal could make that a terrific project for Newton.
@Mike Striar: Austin Street and the Orr block are perfect examples of my point.
Do you really think those projects would be moving forward (in the case of Austin Street) or hopefully moving forward (in the case of the Orr Block/Washington Place) with substantial numbers of affordable units on the books if 40B didn’t exist?
The mere threat of having to continue to endure unwanted 40B projects is a prime motivation for Newton and every other municipality to find more appropriate paths to getting to the 40B threshold.
@Mike – a related element that you’re also overlooking is that even when the city does squeeze some non-40B affordable housing out of a development project via special permits, etc, it is always in the shadow of 40B. The Phillip Neri project in a Waban is a great example. The developer proposed a 48 unit 40B project, the neighborhood went wild, the city threatened to invoke the 1.5% 40B “safe harbor” claim and tie the project up in court. The developer came back with a 10-12 unit project, rather than 48 units. The neighbors breathed a sigh of relief.
If 40B didn’t exist, I’m nearly certain that the neighbors would be fighting that 10-12 unit project tooth and nail. The only reason its an acceptable compromise is because of the 40b threat always lurking in the background.
Before 40B well-off suburban towns also had the means to build affordable housing via the special permit process – but virtually none of them did. I don’t see any evidence now that there’s anything other than 40B to encourage that sort of development.
Perhaps the biggest influence of 40B on non-40B affordable housing development is that it gives local officials political cover. The folks near the Phillip Neri project aren’t outraged at their political leader over that 10-12 unit development precisely because of 40B.
@Jerry– I’m not sure what you see as positive aspects of the scenario you referenced. Or more specifically, what portion of the Waban result you’re attributing to 40B…
It’s always the developer who gains leverage from that statute. The City turned the tables on the Waban developer by successfully taking away the leverage. The threat of a 48 unit project was long gone before the alternative proposal of 10-12 units emerged. Although I do agree that the initial threat of 40B ultimately provided some political “cover”for the smaller 10-12 unit project…
I strongly disagree however with your opinion that our community has little incentive to build affordable housing other than 40B. Austin Street and the Orr Block proposal would suggest just the opposite. I think there is a deep well of support for affordable housing in Newton.
@Greg– I completely disagree. Austin Street had nothing to do with 40B. It was driven by a generous community that recognized the need for affordable housing. Like Austin Street, the developer of the Orr Block wanted a mixed use project that would not have been achievable under 40B. That statute had nothing to do with either of those projects. There is no 40B “threat” to Newton. We’ve met the legal standard for immunity, and we’re seeing better projects proposed as a result.
@Mike: It took a tremendous political effort to get Austin Street passed and the same will be true for Washington Place. I can say with total certainty that the argument that these projects will help get Newton to its 40B threshold was/is part of the value proposition for winning these hard fought votes.
Greg– I wrote, “there’s a deep well of support for affordable housing in Newton.” I did not suggest that there’s unanimous support. So of course it takes political effort to get a large project approved. And it should. There are many factors that weigh into that equation. But the City had already exerted its’ claim to have met the 40B threshold before Austin Street was approved or Washington Place was proposed. Because of that timing, in regard to those two specific projects, the argument that they would “help get Newton to it’s 40B threshold” was spurious at best… we were already there!
For years I’ve made the argument on this blog that 40B shortchanged the City. And the key to getting more affordable housing rests with the City’s willingness and ability to play hardball in negotiations with developers. We’ve seen the results of that philosophy at Austin Street, where 6 extra affordable units were added so that project would be approved. We’re seeing the results with the Washington Place proposal that adds more affordable units than would have been required under 40B. And hopefully we’ll still see the results when the City’s hardball tactics shake more affordable units out of the proposed Wells Ave project.
This has been rehashed in quite a few older threads. Mike, I admire your optimism and faith that Newton would do the right thing regarding affordable housing without 40B. I think the history prior to 40B doesn’t bear that out. It is certainly possible for Newton’s ZBA and others to push developers to greater inclusion of affordable units. But it has taken 8 years to get Austin Street off the ground! Yes the result was positive with the additional units but without 40B cities and towns tend to drag out the process to kill any project of size. Austin Street was city owned land. That should be an easy potential project. And it still hasn’t happened yet. Don’t count your affordable units until they are hatched…
Anyway, the original topic was the 40B designation for Newton. I’ve said before I don’t think Newton is going to win this fight. But I think the purpose was to stall and push developers to come to the table outside of 40B. It seems to have had that effect. But from my read of the background material, Newton’s position doesn’t meet the facts on the ground. You can wish golf courses were classified a certain way, but they could one day be developed. It certainly has happened before. If I’m wrong, I’ll be back here to eat crow a few months for now.
@fig– My comments thus far have been specifically about Newton [not other communities], and were based on the dynamic that exists today [not pre 40B]…
I think Newtonites are generally more supportive of affordable housing than most other communities. It’s a priority here, and rightfully so. Personally, I’d like to reset the bar for Newton at 12% affordability in our housing stock. With proper leadership, I think that’s an achievable goal…
Austin Street [specifically] has taken an unusually long time because the use of public property complicated the project. To some degree it can be argued that the extra time served that proposal well. But I know you’re frustrated by the latest delay resulting from litigation. As a developer however, I can tell you I’ve never had a single large project that wasn’t challenged in court after the permits were issued. They all eventually get built.
I also want to address your comments about golf courses. While I haven’t looked at the underlying zoning of Newton’s private courses, I would expect that in most cases it’s inconsistent with residential use. In those cases, the only way a course could be converted to a subdivision would be by using 40B. If the City has in fact met the threshold, only new state legislation [that exceeds the requirements of 40B] could make development of those courses possible…
Additionally, golf courses that use 61B to reduce their property taxes, have, under that law, committed to preserving their land as recreational open space. The statute requires any golf course to fully reimburse every penny [historically] of property tax savings if they ever change their status. Since golf courses have been using 61B to reduce their property taxes since the 1970’s, the financial cost of changing that status could be astronomical.
@Mike Strair – Really good point around the irony of state agencies who are not paying attention to one of their own statutes. Classic move.
Brooke Lipsitt mentions in the article that she has different calculations. I could not find them anywhere. Anyone on this blog care to share a link to them?
Thanks in Advance
Newton’s golf courses are zoned residential.
Under MA statute Chapter 61B, public golf courses and private non-profit ones can take advantage of paying lower taxes, because of a 75% reduction in assessed recreational value, as long as they continue to re-enroll on a year to year basis in October. Once the classification is approved, the municipality records a lien on the property at the Registry of Deeds and is given the right of first refusal to purchase if the owner decides to withdraw and sell the property for a non-qualifying use.
Failure to reapply to a Chapter program by the required date will result in paying full Chapter 59 taxes until the landowner reapplies. The Roll-Back Tax that is incurred, with withdrawal from the program, looks back five years, and has a flat 5% simple interest rate per annum. If the change of use occurs when the land is classified in a Chapter 61 program, the tax is imposed for the current fiscal year and the four prior years. If the land is not classified at that time, the tax is imposed for the five prior years. For example, if the land has been un-enrolled for three years, taxes are only owed on the difference for the last two years of enrollment.