By Robert M. Ruzzo
By all accounts, the so-called
“GLAM Test” under Massachusetts General Laws Chapter 40B (“Chapter 40B,” the
“Affordable Housing” Law, or the “Comprehensive Permit Law”), one of the
hottest topics in affordable housing over the past few years, is going to
continue to attract attention in the coming months. As affordable housing aficionados know, the
“General Land Area Minimum” (hence, “GLAM”) test is one of three safe harbors
provided for under the Affordable Housing Law. Under Chapter 40B, this safe harbor exists
when “low or moderate income housing exists… on sites comprising 1.5% or more
of the total land area zoned for residential, commercial or industrial use.”
For years, this safe harbor was
relatively unknown, particularly when compared to the widely recognized “10%
test” under the statute. Two years ago,
even the Housing Appeals Committee (“HAC”) had to concede in Newton Zoning
Board of Appeals v. Dinosaur Row LLC that: “the General Land Area Minimum is a complex
measure, which has not been addressed extensively during the 45 year history of
the Comprehensive Permit Law.” The third
Chapter 40B safe harbor, the Annual Land Area Minimum, remains a veritable
affordable housing “Sasquatch,” whose existence is alleged, but as yet remains
unverified.
After an extensive internal
review, the Department of Housing and Community Development (“DHCD”) published
“Draft Guidelines for Calculating General Land Area Minimum” (the “GLAM
Guidelines”) on its website on Friday, May 5, 2017. The GLAM Guidelines are intended to provide
straightforward assistance to municipalities.
In addition to the eight pages of guidance, which includes a new
definition of “Group Home,” the GLAM Guidelines were accompanied by two
appendices. Appendix A consists of
twelve pages of technical instructions, while Appendix B walks through an “Example
Calculation,” complete with illustrations.
DHCD will be accepting written comments on the GLAM Guidelines (including
the appendices) through July 5, 2017.
The publication of these
eagerly anticipated GLAM Guidelines provides an appropriate opportunity to step
back and reflect upon some of the larger issues surrounding the Affordable
Housing law, and the statutory safe harbors in particular.
As noted recently in a cogent
presentation by the Massachusetts Housing Partnership (“MHP”) at a meeting of
the CHAPA Housing Production Committee, Chapter 40B has been the vehicle for
the production of more than 70,000 housing units since 1969. The future, however, is not as bright in MHP’s
view, because the potential for “new 40B development is diminishing relative to
projected housing need.”
Why? According to MHP the “gap” (between projected
housing need and the remaining Chapter 40B housing development potential) “is
greatest in Metro Boston where 26 communities have permitted enough subsidizing
housing” to cross the 10% safe harbor threshold. According to MHP, the remaining development
potential under Chapter 40B in the Metropolitan Area Planning Commission region
is approximately 21,000 units.
Of course, under the 2007 Boothroyd
v. Zoning Board of Appeals of Amherst decision, a municipality may nonetheless
elect to grant a Comprehensive Permit even if it has satisfied the 10% test. But that is a pretty thin reed to grasp in our
current housing affordability wind tunnel.
To make your affordable housing
day even brighter, a number of the ten communities identified by MHP as having the
“most remaining Chapter 40B Development Potential” in the Metro Boston area are
among the very communities that have recently asserted the GLAM safe harbor
(Arlington, Newton, and Waltham). For these
municipalities and others similarly situated, however, an underappreciated
danger lurks behind the assertion of the GLAM safe harbor based upon current Subsidized
Housing Inventory (“SHI”) counting methodology. Such arguments may run headlong
into the most potentially potent footnote in all of affordable housing.
First, some full disclosure. Your correspondent has previously suggested that
the treatment of rental developments under the GLAM test may no longer make
sense in era of smart growth and concentrated development. Remember that under current SHI practice,
rental housing and ownership units are treated very differently. Assuming all other requirements to gain
listing on the SHI have been met, all units in a rental housing development are
counted on the SHI, while homeownership developments are counted only on a
proportionate basis. The HAC politely questioned this approach as early as
2003, in footnote 6 of Arbor Hill Holdings Limited Partnership v. Weymouth
Board of Appeals, stating “it would seem anomalous to count all of a very
large [rental] lot containing only a very small number of affordable units.”
But footnote 6 in Arbor
Hill pales in comparison to the suggestion of the Supreme Judicial Court in
footnote 12 of Zoning Board of Appeals of Sunderland v. Sugarbush Meadow,
LLC, 464 Mass. 166, 178 (2013). There,
the SJC expressly left open the issue of how counting should be performed for
SHI purposes, declaring: “we need not
address whether the inclusion of non-subsidized housing units in the SHI is
permissible under the act…(emphasis added).” Thus, the issue of SHI counting methodology
under the 10% test remains an open question, as far as the SJC is concerned.
Certainly any counting
methodology employed by DHCD over many years would be entitled to a great deal
of deference. Nonetheless, a judicial rebuke
to such a long-standing regulatory practice would not be without recent
precedent. As development lawyers learned back in 2007 in the Chapter 91
context, the SJC is not hesitant to let it be known that “the principle of
according weight to an agency’s discretion” is “one of deference, not
abdication” stating further that “this court will not hesitate to overrule
agency interpretations of statutes or rules when those interpretations are
arbitrary or unreasonable.” Moot v.
Department of Environmental Protection, 448 Mass. 340, 346 (2007).
By aggressively asserting the
GLAM safe harbor, a municipality may raise the entire issue of SHI counting
methodology before the state’s highest court for the first time. So as we enter upon the “Summer of GLAM”
remember, it may be time to re-examine the most important footnote in
affordable housing as well.
“The Housing Watch” is a
regular column from Bob Ruzzo, senior
counsel in the Boston office of Holland & Knight LLP. He possesses a wealth of public, quasi-public
and private sector experience in affordable housing, transportation, real
estate, transit-oriented development, public private partnerships, land use
planning and environmental impact analysis. Bob is also a former general
counsel of both the Massachusetts Turnpike Authority and the Massachusetts
Housing Finance Agency; he also served as chief real estate officer for the
turnpike and as deputy director of MassHousing.” Bob can be contacted by email at robert.ruzzo@hklaw.com.
