Newton supports affordable housing — until it’s time to build it
Photographs by Michael Manning
IN NEWTON, WHERE single-family home values are creeping into the million-dollar range, few things trigger more raw emotion than proposals for affordable housing.
That emotion was on full display in early December at Newton City Hall as proponents and opponents of a mixed-use development packed the Board of Aldermen meeting for a vote on a controversial project in the city’s Newtonville section.
During the four-hour, standing-room-only aldermen’s meeting, most of the 24 members of the board exceeded their allotted speaking time, some by 20 minutes or more, to air their views about what led them to their vote. For several of the aldermen who voted yes, it was a last minute offer by the developer to up the number of affordable units from 25 percent to 33 percent that swayed them. For some who opposed the project, the increase caused more concern.
A majority of the board clearly favored the project, but Newton bylaws require a two-thirds super-majority to approve special permits for affordable housing. The outcome was in doubt until the roll call near midnight. It passed 17-6, one vote over the total needed for approval. Supporters got the key backing of two aldermen—Amy Mah Sangiolo and Barbara Brousal-Glaser—who said they were unsure how they would cast their votes until their names were called. Their yes votes drew gasps. Many in the audience broke down in tears—some for joy, others out of disappointment.
But all the angst, all the tears, all the division, and all the relief overlooked one thing: Even with the developer’s increase in the number of affordable units, the 68-unit project will add just 23 units of below-market housing, a fraction of what is needed for the city to meet the state’s benchmark goal of having 10 percent affordable housing stock, which would exempt it from the controversial Chapter 40B law.
The pitched battle shows how tough it is to build affordable housing in one of the state’s wealthier communities. Newton prides itself on its progressive values, yet over the years has done relatively little to put out the welcome mat for those who can least afford to live there. The city is actually going backwards in reaching the goal of 10 percent affordable housing.
For Warren, a liberal Democrat and the city’s first black mayor, affordable housing is a delicate issue. He preaches that affordable housing is the key to diversifying the heavily white city and says he is “110 percent” in support of the state’s Chapter 40B law, which allows developers to bypass local restrictions if a community lags in producing affordable housing. But some of his administration’s actions and one of his appointments suggest his commitment doesn’t match his vow.
It is a challenge for Warren to navigate the dueling factions in the city while at the same time trying to establish his bona fides for a presumed statewide run in a party that embraces the diversity affordable housing brings to a community. He is using the issue of affordable housing as a key platform to burnish his resume, serving as chairman of the Community Development and Housing Committee for the US Conference of Mayors for the past four years. He was a panelist at a recent symposium on the role of government in community development and housing at the Brookings Institution in Washington. His success—or failure—at delivering on his goal of bringing affordable housing and more diversity to Newton is likely to get scrutiny in a run for a higher office.
Jay Doherty, managing partner of Cabot, Cabot & Forbes in Boston, has built big developments with large chunks of affordable units in Newton in the past. But a 334-unit project with 83 units of subsidized housing that he has been trying to build in an industrial park near Route 128 has been thwarted at every step. He lays the blame squarely at the feet of Warren and says since the mayor took office in 2009, there hasn’t been any significant progress in building affordable housing.
“He hasn’t blessed a major 40B [project] since he’s come into office,” says Doherty, who in December lost an appeal of the city’s rejection of his project. “Newton was routinely working with the 40B statute before Setti Warren came into office. He’s won. I congratulate the mayor. He has been a very effective barrier to this and other affordable housing projects.”
CLASSIC CITY-STATE FIGHT
There is no ambiguity about the intent of the state law called Chapter 40B. When the bill was passed and signed into law in 1969, its title was “An Act Providing For The Construction Of Low Or Moderate Income Housing In Cities And Towns In Which Local Restrictions Hamper Such Construction.”
Affordable housing proponents have another title for it: Anti-snob zoning.
Under the statute, developers can bypass local zoning laws, ordinances, and opposition to build projects that have at least 25 percent subsidized units—in some cases, 20 percent—if less than 10 percent of a community’s housing stock is deemed affordable. The law defines affordable housing as any subsidized dwelling that can be purchased or rented by someone making 80 percent or less of the annual median income of a community.
Brenda Clement, executive director of Citizens’ Housing and Planning Association, a nonprofit advocacy group, says that, despite its flaws, 40B has been effective in creating 60,000 affordable housing units since 1969.
“These are units being built in communities where there isn’t a lot of housing available,” says Clement. “40B is one of the tools in the tool belt. We think it’s a significant tool.”
But the law has encountered resistance across the state since being enacted nearly a half-century ago in the wake of the civil rights movement. The purpose was to open up communities to those at the lower end of the income spectrum so they could benefit from better schools, better services, and more opportunities. But it has been, and remains, a long road.
There have been multiple efforts to reform or even repeal Chapter 40B, including a statewide referendum in 2010 to kill a law that opponents say does more harm than good for everyone. The repeal question was defeated 58-42 percent, including in Newton where voters rejected the referendum by more than a 2-1 margin. But the victory did little to increase the availability of affordable housing.
Only 47 of the state’s 351 cities and towns meet the 10 percent threshold, up from 39 when the question went before voters. According to data from the Department of Housing and Community Development, the annual number of permits issued for 40B projects has dropped to single digits statewide and the number of affordable housing units developed has fallen with it. In 2005, there were 65 permits issued for 40B projects around the state. In 2009, the number fell to 32 and in 2015 there were only six. The total number of affordable units developed across the state fell from 2,686 in 2005 to 745 last year.
Clement concedes there is a disconnect between what voters said in 2010 and what communities do, and that some communities simply don’t want to open their doors to outsiders because of fear of change and bringing in people who wouldn’t normally live there.
“There’s certainly a lot of that that exists and that’s not a new dilemma,” she says, referring to the mixed messages sent by voters. “I don’t know that there is still bias or fear—there may still be some of that—but we still have a lot to do.”
No one ever says that they oppose affordable housing outright. Instead, the catchphrases of anti-40B advocates are that a proposed project is not in the “right place,” that the law usurps “local control,” or that the statute threatens housing values.
Weymouth Mayor Robert Hedlund, who left the Senate after serving nearly a quarter-century, was one of the most vocal opponents of Chapter 40B during his time on Beacon Hill, trying numerous times to change the law. Weymouth, like Newton, does not meet the 10 percent target and could be subject to 40B projects, but Hedlund says the law is outdated and doesn’t work the way it was intended anymore, if it ever did. He says any attempts to make it fairer to communities have been beaten back by the Democratic-controlled Legislature.
“You can’t get any reform and you can’t repeal it,” says Hedlund. “It’s like a sacred cow; you can’t touch it. The problem is the entire way it takes away local control. What’s true in 1969 may not be the same as today.”
Officials at MassHousing, the quasi-public agency that finances affordable housing in the state, referred questions about 40B to the Executive Office of Housing and Economic Development. A spokeswoman there said neither Secretary Jay Ash nor Undersecretary Chrystal Kornegay, who oversaw development of affordable housing as director of a Boston nonprofit before joining the Baker administration, were available for interviews.
Much of the vocal opposition at the local level comes from those concerned that affordable housing will attract more residents who will negatively impact schools, clog roads, and overburden water and sewer systems. Clement says there is a bill in the Legislature that would address those concerns by increasing state aid, but she says much of the worry over schools is a matter of “misinformation” that gets repeated by opponents.
Clement says she and other advocates are working with the Baker administration to refine the law, but she says tossing it out is not an option. She says the reduction in the number of permits “doesn’t unduly worry me at this stage,” but says the decrease is not for lack of need, blaming it in part on the recession and in part on local resistance.
“I don’t think it’s a lack of demand,” she says. “There’s need everywhere. We have a saying that the path to economic opportunity leads from your front door. There’s been a few communities that have been [resistant]. As with all things, we’ve got a lot to do.”
When it comes to affordable housing, Newton is losing ground.
In 2010, Setti Warren’s first year in office, the city had 31,857 total housing units, of which 2,444 were deemed affordable, according to state figures. That left Newton 742 units shy of the 10 percent threshold. According to a housing census in 2011, the city added about 500 units but none affordable, effectively reducing the percentage of affordable units from 7.7 percent to 7.5 percent. By 2014, the city remained 791 units shy of the 10 percent mark.
“Newton has never had a proactive policy,” says Warren. “We’ve been in reactive mode. We have not met the 10 percent. We need to build 800 units. I want to do it in five years, but I want to go beyond hitting that threshold. This is a starting point.”
Despite the laudable goal, actions by the city—whether it’s the Board of Aldermen, the Zoning Board of Appeals, or Warren’s own office—don’t reflect a noticeable effort to back up the policy statements in support of affordable housing.
In fact, Newton officials have worked in recent years to take advantage of an opening in the 40B law that lets communities wave off affordable housing proposals even if they have not met the 10 percent benchmark. In 2008, a provision was added to the law that allowed cities or towns to claim “safe harbor” from Chapter 40B if affordable housing occupied more than 1.5 percent of developable land in the community. From the denominator used to determine the percentage of developable land, communities were allowed to exclude wetlands, conservation land, and other properties that could not be developed.
In 2014, the Newton Zoning Board of Appeals rejected an initial filing by developers of a proposed Chapter 40B project on Rowe Street in the Auburndale neighborhood that would have created 135 affordable housing units. In explaining the board’s decision, the city’s lawyers said Newton had already reached the 1.5 percent threshold. They said three golf courses in Newton with a total of nearly 540 acres were open space and recreation lands that would never be developed, even though the land is zoned for residential use. With the golf courses excluded from the city’s developable land, city officials said, 1.88 percent of Newton’s land was used for affordable housing and that it had therefore met its obligation under 40B.
In June of last year, the state Housing Appeals Committee, the first stop for disputes involving 40B applications, rejected the city’s argument. “Although the general expectation may be that this land will be used for quite some time for golf—just as other parcels of land in private ownership may continue to be held for low-intensity uses or in an undeveloped state—the owners of this land could develop it for housing at any time,” the housing committee wrote in its decision.
The committee also rejected a claim by the city to include a number of homes run by various state mental health and social agencies that would have brought the safe harbor exemption to exactly 1.5 percent even without the golf courses. With that denial, the city, which is appealing the ruling, has just 1.3 percent of its land used for affordable housing.
Warren says the safe harbor recalculation was initiated by “another department” and declined to discuss it or give his opinion on its validity and whether it should apply to 40B proposals. City Solicitor Donnalynn Kahn says the city’s Planning Department, which is controlled by Warren, initiated the recalculation.
Warren also appointed a person to the five-member Zoning Board of Appeals who has a history of representing opponents of 40B projects. Newton attorney and resident Barbara Huggins, who is a partner at the firm Huggins & Witten, which has offices in Duxbury and Newton, has for years represented communities and residents who have sued to stop 40B projects.
Huggins says it would be inaccurate to portray her as a 40B opponent based on her representation of clients. But it would be hard to say she’s a fan. “It is not doing a good job of creating affordable housing in the manner in which it was intended,” she says of the law. “Ideally, I think it should be scrapped and come up with something better. Reform has never worked. I think developers have found 40B to be very advantageous.” Huggins declined to answer questions specifically about Newton issues and made clear she was not speaking in her role as member of the city’s zoning board.
Some aldermen who oppose 40B attempt to use the law as a litmus test for zoning board appointees, who must be confirmed by the board. Brooke Lipsitt, the chair of the zoning board, says she was asked about her views on 40B by the Board of Aldermen when she was reappointed by Warren early last year. “Questions about 40b came up, I answered them as clearly as I could,” she says. When asked her position on 40B, she says only that “40B is the law of the Commonwealth and I am sworn to abide by it.”
Lipsitt says the board looks at Chapter 40B proposals dispassionately and only with the law in mind. But she says there clearly is a faction in the city that is trying to thwart the creation of affordable housing and Warren’s objectives.
“There is a small number of vocal residents who are opposed to affordable housing, who are opposed to any increase in the number of people coming into the city,” she says. “It is NIMBYism pure and simple. They don’t want the schools to be more crowded, they don’t want their taxes raised, they don’t want the city they know to change… My family moved here 50 years ago and the city isn’t the city I grew up in. No city is. Change will happen despite not wanting it.”
Warren says he wasn’t aware of Huggins’s background in handling 40B cases in her law practice and says he doesn’t vet his appointees’ stances on the statute. “I can tell you right now, I did not, nor do I do, background checks like that for volunteer appointments,” he says. “My intent is to make sure the values and vision of this administration are adopted.”
If he didn’t inherit his childhood home from his late parents, Setti Warren admits he couldn’t afford to live in his own city. That, he says, is the driving force behind his efforts to open the door to other families to increase Newton’s diversity and prevent it from becoming a gated community.
In addition to average home values nearing $1 million, the median rent in Newton is more than $1,600, nearly a third higher than the median in Middlesex County and 55 percent higher than the median rent statewide, according to a Warren-commissioned analysis by Northeastern University’s Dukakis Center for Urban and Regional Policy to help the mayor form a comprehensive housing plan. In addition, the study found that 90 percent of the city’s housing stock was built prior to 1990, indicating little has come on line in the last quarter century to attract new residents. Nearly 80 percent of Newton’s population is white and just 3.1 percent black.
Part of the problem, say officials, is the dearth of land available to build the kind of dense developments that would be affordable to families who might not otherwise be able to move to Newton. The issue, they say, isn’t whether one favors affordable housing but rather finding the right place for the right project in a 385-year-old community that has been nearly completely built out.
“When you talk about something that’s controversial, it’s largely been because the location has not been deemed to be suitable for one reason or another,” says Dori Zaleznik, Warren’s chief administrative officer.
Zaleznik says it’s unfair to say no 40B projects have been approved under Warren. The administration touts its success in getting affordable housing projects moving as compared to the stagnant pace of decades prior. But looking at a list of projects shows that progress is still far from meeting the state’s goals of increasing housing stock for low- and moderate-income families.
According to data from Newton’s planning department, the city has approved 11 affordable housing developments calling for a total of 298 affordable units, including five 40B projects, since Warren took office in 2010. Four of the 40B projects are small, representing just 18 affordable units. The other 40B project the administration includes is the Rowe Street project the planning board and zoning board rejected and which is still “under review.” Only four of the 298 affordable units have come on line; the rest are either under construction or permitted but not started yet.
Newton Alderman Richard Lipof, a longtime real estate appraiser and former campaign manager for Warren, disagrees with the view that a “not-in-my-backyard” philosophy is at play in the city. He says just because someone has a self-interest in opposing a project doesn’t mean the resistance should be dismissed.
“It is human nature,” says Lipof, who voted for the Austin Street project but has opposed the Cabot, Cabot & Forbes development in the industrial park on Wells Avenue in Ward 8, where he lives. “They see a large development where none has ever been and it’s caused them to think about your schools being overburdened with kids, your roads overburdened with traffic. It doesn’t make you a bad person.”
Lipof says the obstacle isn’t snobs, it’s a matter of where those projects can be built.
“It all has to do with the availability of the appropriate land,” he says. “It’s all economics. The land is so expensive in Newton, it’s so hard to build affordable units. We’re doing what we can but we don’t have a lot of land to do it on.”
Doherty, the Cabot, Cabot & Forbes developer, says his project was located in an office park on the city’s south side at the site of the Boston Sports Club. He says his project wouldn’t overburden residential neighborhoods or local roadways in and around the industrial park.
Doherty has been stymied by a nearly half-century-old deed restriction that changed the zoning in the area from residential to commercial and industrial. Doherty needed a waiver from the Board of Aldermen and the zoning board to construct his project, which included 83 affordable units—10 percent of the nearly 800 the city needs to reach the 10 percent threshold.
Doherty offered more than $4 million in traffic mitigation and funding for more affordable housing, as well as a shuttle bus to the nearby commuter rail to ease concerns over how to move residents.
Both the aldermen and the zoning board denied his request. Officials say they are locked in by the deed restriction, which forbids residential housing in what is essentially an industrial cul-de-sac. Doherty claims the city has granted at least 20 waivers since 1969, including allowing the construction of a dance school, non-profit education facilities, health offices, gymnastics centers, and even a “bouncy house.” None of those projects was residential, however. Doherty took his case to the state Housing Appeals Committee, but that panel upheld the aldermen and zoning board decisions, saying a deed restriction does not fall under the rules and regulations Chapter 40B was designed to address.
Doherty is angry, though at deadline he was unsure what his next move would be. He says the actions by city officials at all levels give lie to their claim of wanting to build affordable housing. “It’s good for talk, it’s really not good for walking the talk,” he says. “If you think producing four units a year is producing affordable housing, then, yes, you’re producing affordable housing.”
Lipof says rejecting Doherty’s project wasn’t about trying to keep people out of Newton, adding that Doherty’s attacks on the city are completely off base.
“Newton’s always going to get hit with that snob moniker because of who we are,” says Lipof. “It costs a lot to live here because it’s 12 minutes from downtown Boston. We have great schools, we are a diverse community. I think we’ve built a real special community here.”
Warren, who ultimately stands as the face of Newton, would not comment about Doherty or his project because of the litigation. But when asked if labeling Newton as obstructionist to affordable housing is fair, he paused and sighed.“I’d say my answer is, we have a lot of work to do,” he says. “We are not there yet.”
(Correction: The last name of Mayor Setti Warren’s chief administrative officer was misspelled in the magazine and in the initial online story. It is Dori Zaleznik.)