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PETER MOST: Tweaking the Anti-Snob Act

To address our housing crisis, we need lots of dollars and some sense. Addressing the misuse of Census data in our housing acts will not raise taxes, but it might raise some roofs.

Massachusetts enacted the Anti-Snob Act in 1969 not, as one might presume, to combat a concerning proliferation of Boston Brahmins but to address an alarming shortage of affordable housing. Much has changed, but a lack of affordable housing has not. The statute, less popularly known as the Comprehensive Permit Act, sought to address housing needs by overcoming local zoning barriers intended to hinder affordable housing construction in NIMBY communities (a term which would not exist for another decade). Now middle aged, it could use a minor adjustment to give it a bit more backbone in communities with a considerable number of second homeowners.

Found at Massachusetts General Laws Chapter 40B, the act has been enormously successful. By 2022, over 80,000 affordable housing units had been created due to the statute. “Enormously successful,” that is, if you believe as I do that each additional housing unit helping house a family is a success. Not “enormously successful” in the way the polio vaccine eradicating a disease was successful. The Anti-Snob Act has made more than a dent in addressing our affordable housing crisis, but we have much more to do.

For the most part, municipalities used the act to negotiate with developers (nonprofits, public agencies, and private enterprises) to construct multi-unit affordable housing. But for those communities that snobbishly rejected efforts to construct affordable housing, the act gave developers the right to go around towns to appeal adverse zoning determinations directly to the state, but only in those communities where affordable housing made up less than 10 percent of the housing units. Spoiler alert: The question is, 10 percent of which dwellings should be counted?

Generally speaking, the act has been successful in stopping towns from legislating multi-unit affordable housing efforts out of their backyards. As described in various appellate opinions:

“[The statute was] enacted to provide expeditious relief from exclusionary zoning by-laws and practices which might inhibit the construction of low and moderate income housing in the Commonwealth’s cites and towns. Under the statute, an eligible developer wishing to construct low or moderate income housing may seek from local zoning board of appeals a comprehensive permit to develop the project instead of seeking separate approvals from each local board having jurisdiction over the project.

If a local board denied a developer a permit or authorized a permit with terms to make the project uneconomic, the developer could appeal and do an end-run around the local zoning by-laws.

In this space, we have discussed adjustments to the calculation of Area Median Income (AMI) to expand housing opportunities in the state. Just as tweaking AMI would jumpstart housing construction throughout the state, tweaking a definition in the Comprehensive Permit Act could also facilitate housing construction in certain communities—those with an abundance of second homes.

Section 20 of the act states in pertinent part that “[r]equirements or regulations shall be consistent with local needs … in a city or town where … low or moderate income housing exists which is in excess of ten per cent of the housing units reported in the latest federal decennial census of the city or town …” That is, to determine if a municipality may be subject to the “hammer” provisions of the act, the statute considers only the most recent U.S. Census data.

If you recall, the Department of Housing and Urban Development understates AMI in areas with significant second-home-owner populations by using Census income data that fails to consider the economic impact of those homeowners’ out of area income. Similarly, the U.S. Census data utilized for consideration of the Chapter 40B penalty provisions only counts the number of primary residences in an area. So if an area has a sizable number of second homes, the data presents a material undercount.

To implement Chapter 40B, the Executive Office of Housing and Livable Communities (sidenote: Once we solve housing, let’s fix the name of this agency) promulgated regulation 760 CMR 56.03, but let’s just call it section 56.03 for short. Section 56.03 provides as follows: “The total number of housing units shall be that number of year-round units enumerated for the city or town in the latest available United States Census.” Why are only “year-round” homes considered?

In 1969, the legislature perhaps thought most towns had too few second homes to skew the calculation, but much has changed in over 50 years. Or perhaps the legislature at the time considered it simply easier to use the Census data, but that was shortsighted. The Great Barrington town assessor was able to give me in just a few minutes the total number of dwellings in the town and a breakout of the number of second homes. And the assessor’s information was current rather than what could be nearly a decade-old.

Counting both primary and second homes for consideration of Chapter 40B matters in seasonal communities. Based on data provided by the Berkshire Regional Planning Commission, in 2022 Stockbridge had 1,638 homes, of which 827 (50.5 percent) were second homes. Section 56.03 currently provides that to meet its Chapter 40B affordable housing threshold, Stockbridge needs only 81 affordable housing units, not the 164 homes that would be required if all dwellings were counted. Why should Stockbridge’s requirement to provide affordable housing be reduced by 51 percent simply because it has a considerable proportion of second homes? With a simple legislative tweak, Stockbridge would be required to add 83 homes to meet its Chapter 40B threshold. And there can be little argument that Stockbridge needs more affordable housing.

The tweak would have an impact in other local communities as well. Lenox, where 20.9 percent of all dwellings are second homes, would need to add 63 affordable homes; Great Barrington, where 12.7 percent are second homes, would need to add 48 affordable homes; West Stockbridge, where 36.4 percent are second homes, would need to add 32 affordable homes; Egremont, where 33.2 percent are second homes, would need to add 31 affordable homes; and Sheffield, where 14.4 percent are second homes, would need to add 26 affordable homes. Together, it would mean as may as 270 additional affordable homes if each of the communities has not met is Chapter 40B threshold. That is nothing to scoff at.

The use by the state of Census data for certain housing initiatives creates a garbage in, garbage out problem. To address our housing crisis, we need lots of dollars and some sense. Addressing the misuse of Census data in our housing acts will not raise taxes, but it might raise some roofs.

Survey Monkey Question

Here is a link to the following Survey Monkey poll: Should Section 20 of the Comprehensive Permit Act be amended to utilize assessor’s data to calculate 10 percent of all dwellings in a city or town rather than solely primary dwellings?

Survey Monkey Results

In a recent column, we asked, “Having annually certified that it incurred no costs due to the operation of any marijuana establishments, should Great Barrington settle the dispensaries’ litigation by returning the Community Impact Fees currently in its possession to the dispensaries? ” As of publication, 69.49 percent of respondents said “yes.”


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