40B Introduction

Massachusetts General Laws Chapter 40B is designed to facilitate construction of affordable housing in communities where less than 10 percent of its housing stock is affordable (accessible to low and moderate income levels).  Weston's affordable housing stock is less than 4 percent as defined by the state.  

Under Chapter 40B, developers are able to bypass certain local zoning laws, including specifically the allowable density, as long as 20 to 25 percent of the units being built meet the state’s definition of affordable.  The law provides only limited opportunity for Town officials to alter the developer’s plans.

Friendly or Unfriendly?

There are two paths developers can pursue for their 40B development — friendly or unfriendly.  In a friendly 40B development, the developer works cooperatively with town boards to minimize density, improve setbacks, or blend architectural aesthetics with the neighborhood. Examples include Winter Gardens, Dickson Meadow, and 680 South Avenue, as well as housing built by the non-profit organization Weston Affordable Housing Foundation Inc. (WAHFI).

If the town and developer cannot work cooperatively, the developer can pursue relief through the state and by-pass local zoning. Current unfriendly 40B proposal plans in Weston are available online. These types of developments tend to be very dense, out of character, and do not comply with Weston's zoning by-laws.

To date, Weston has had luck in working with developers to produce friendly 40B projects, but recently the Town has encountered three unfriendly 40B proposals. These are problematic for Weston due to the high price of land. In order for developers to make a profit, the developments are incredibly dense and ignore zoning setbacks.

The 10 Percent: Rental vs. For Sale

The 10 percent calculation is based upon the total housing inventory, per the national census. Housing units that are built and deed-restricted as affordable (accessible to incomes at or under the 80 percent area mean income level) are eligible for inclusion on the state's Subsidized Housing Inventory (SHI); however, the state values rental units over for-sale units. As such, in a development where all units built are rental, all units will count towards the SHI. 

For example, in a 20-unit housing development where the homes are for sale, only the houses specifically set aside as affordable will count (25 percent or 5 units) towards the SHI. If that same 20-unit housing development were rental units, all 20 units will count towards the SHI.

Housing Stock Counts

The rental vs. for-sale is important to note because all of the units built go towards the Town's total housing inventory, which in turn affects the 10 percent calculation.  

A 20-unit for-sale development increases the total housing stock by 20 but only adds 5 to the SHI, whereas rental units provide a more even distribution of 20 units to each list thereby reaching the 10 percent goal faster.

What is Weston's percentage? 

The town is projected to have approximately 3,980 housing units in 2020. Currently, there are 149 units set aside as affordable, which means that 3.77 percent of Weston's current housing stock is affordable. In order to meet the state-required 10 percent, Weston will need to produce approximately 275 affordable housing units.

Safe Harbor

When a town is below the state's required 10 percent, the town has an option to proactively plan for developing affordable housing on its own terms by creating a state-approved Housing Production Plan. When this plan is put into action, meaning the town is moving forward in the building, the plan becomes certified. 

A state-certified plan gives the town "Safe Harbor" status, which allows the town to have more control over 40B developments. Weston currently has an approved Housing Production Plan, but it is not yet certified.