Massachusetts Repeal 40B (2008)

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Repeal 40B did not appear on the November 4, 2008 statewide ballot in Massachusetts as an initiated state statute. The measure called for repealing four housing provisions from Chapter 40B.

Chapter 40B is a Massachusetts state statute passed in 1969. 40B allows developers who include a certain percentage of affordable housing (25% for owner-occupied units) to appeal local zoning board denials or restrictions to the state Housing Appeals Committee (HAC).

Appeals can be initiated when the developer has been denied a comprehensive permit by the ZBA or has been issued a permit with conditions that the developer claims would make the project uneconomic.

Under 40B, affordable housing is defined as units which can be afforded by households making 70% of the local median income, have been subsidized by certain state or federal housing subsidy programs, and have long-term deed restrictions.[1]


The Committee to Repeal40B and their supporters were the leading proponents of the measure. The group argued that 40B was not working for the following reasons:[2]

  • For 38 years Massachusetts ranked 49th in national rankings for housing affordability
  • About 53% of the few “affordable” units the state had are in danger of expiring due to deed restrictions running out.
  • Two-thirds of the additions to the state’s affordable housing stock had been from repair programs, new houses for the Dept. of Mental Health/Retardation and market rate rental units that “count” towards 40B thresholds
  • Very few communities had reached the “10% affordable” threshold set by 40B
  • Many communities report only 3 affordable units, per town, per year
  • It is exceedingly difficult for 40B to serve the neediest households unless they secure supplementary funding since 40B targets only those at the upper end of eligibility (70-80% of median income.)
  • A recent sampling of 40B rental units showed that some 30% of tenants needed additional rent vouchers just to be able to afford to live in the "affordable" units.

Other support included the Harvard Slow Growth initiative which has released a report criticizing 40B.[3]


The leading opposition of the initiative was the Citizen Housing and Planning Association (CHAPA) which advocated that 40B should remain or even be increased in size in order to create more affordable housing in Massachusetts. Some of their arguments included:[4]

  • Without 40B there would be less affordable housing
  • Chapter 40B has been responsible for the production of affordable housing developments that in most cases could not have been built under traditional zoning approaches.
  • Zoning boards work with developers to modify the project
  • 40B has created affordable housing and serves the people who really need it.

The Massachusetts Housing Partnership had also encouraged cities and townships to use 40B.[5]


The group submitted signatures for the first phase of approval from the Secretary of State, which required 66,593 signatures.[6]

The measure failed to submit enough signatures to qualify for the first phase of the approval process. Fewer than 34,000 signatures were submitted by proponents. Of the signatures submitted 2,442 were disqualified because the signatures sheets were not exact copies or had extraneous markings. The proponents promised to return for the next general election cycle with a larger campaign.[7]

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