November 17, 2008

Lynn Fisher (Associate Professor of Real Estate, Massachusetts Institute of Technology)

This brief is based on "Chapter 40B Permitting and Litigation: A Report by the Housing Affordability Initiative," a working paper published by MIT’s Center for Real Estate. Funding for this research was provided by a variety of sources, including the Rappaport Institute for Greater Boston.

For almost 40 years, Chapter 40B, a unique Massachusetts law, has allowed developers to circumvent local land-use regulations for housing projects that include subsidized units in communities that lack such housing. Given well-documented restrictions that many communities impose on multifamily housing, Chapter 40B— officially known as Massachusetts Comprehensive Permit Law—has become the primary tool for building multi-family development projects in the state.

This, in turn, has made the law extremely controversial and led to repeated but thus far unsuccessful attempts to either repeal or substantially modify it. Because Chapter 40B is so important for multi-family housing production and because 40B projects often are controversial, it is critical to understand how the law actually works in practice. Which projects are built with little controversy, which are substantially delayed, and which never get built? How much time does the process take? How litigious is the process? What influence, if any, does the process have on the design and location of the projects that ultimately get built?

Until now, it has been impossible to answer such questions because no one had collected comprehensive data on both built and unbuilt projects. To fill this gap, in 2007 and 2008 we contacted offi cials in 144 cities and towns surrounding the city of Boston to explore their community’s experiences with the law between 1999 and 2005. We ultimately received responses from officials in all but two of those communities and information on 404 separate projects in 115 cities and towns.