This "Minority Report" to the Barriers to Housing Commission Report of the Zoning Sub-Committee is submitted on behalf of those members of the Zoning Sub-Committee who did not fully support all recommendations found in the final report, yet believe that many of the recommendations are worthwhile. With that spirit in mind this report indicates those recommendations we found acceptable and those we did not, with reasons cited on those we did not. We were pleased to be a part of the Sub-Committee and look forward to working on the recommendations we believe are of merit. The text in "bold italics" is our addition while the "standard text" is the majority view and remains unchanged.

While we still believe the Report reflects the majority point of view, i.e. that of the members of the development community actively involved in the housing industry, we acknowledge that our participation resulted in many of our comments being incorporated. We also believe that much anecdotal evidence was discussed which impacted the majority viewpoint. Based on our knowledge of planning and development in Massachusetts we note that much of the anecdotal evidence simply is not true throughout the Commonwealth. The need for affordable housing does indeed exist, but we question the whole premise for the need for addressing market rate housing in the Commonwealth.

Claire Freda
Leominster City Councilor and Immediate Past President of the Massachusetts Municipal Association

Thomas A. Broadrick, AICP
Duxbury Planning Director and President of the Massachusetts Chapter of the American Planning Association

Dorr Fox
Chief Regulatory Planner, Cape Cod Commission

The Zoning Sub-Committee of the Barriers to Housing Commission met 11 times from May 2 to August 1 to examine land use regulatory issues affecting housing production. The Sub-Committee represented many diverse interests including both for-profit and non-profit developers, banks, municipalities, and local and regional planners.

Several themes emerged from the Sub-Committee's discussions:

(1) localities are concerned that more housing will add to municipal service burdens and costs;
(2) the Commonwealth must take a more proactive role in providing financial incentives for housing development;
(3) there is a need to encourage municipalities not to enact unnecessary regulations that increase housing costs;
(4) there is a need to make legislative changes to deal with procedural problems that unnecessarily delay housing development and increase housing costs;
(5) there are available tools for responsible planning and zoning such as cluster development, transfer of development rights and density bonus provisions which could increase housing supply;
(6) there are newer avenues for growth and development, such as brownfields redevelopment and mixed use developments, which may make better use of land in developed areas; and,
(7) the Commonwealth must encourage both local and regional planning for housing.

Given the diverse composition of the Sub-Committee, not all members supported all recommendations. However, the Sub-Committee believes that the report represents the combined best efforts of its membership to bring the immediate need to increase housing production to the forefront. The report makes findings and recommendations in the following areas for the Commission's consideration:

a. Municipal Cost Burden
b. Density Regulations
c. Growth Control Bylaws
d. Municipal Fees
e. Subdivision Control Regulations
f. Local Wetland Protection Bylaws
g. Appeals Process
h. Density Bonus Regulations
i. Mixed Use Development Projects
j. Brownfields Grant, Loan and Tax Programs
k. Urban Development Corporations
l. Regional Housing Supply Planning

There is a common perception, sometimes justified, that new housing units create a fiscal burden on the local community. The actual burden is dependent upon the assessed values of new homes and the incremental cost for additional students and other services. In some communities, it is likely that high sales prices and assessed values of new homes may actually generate net revenue. However, some communities may have a negative impact based on school capacity, extent of infrastructure, and available services (e.g., public safety, public works and recreation programs).

To determine the validity and extent of the claimed fiscal burden, a uniform methodology for determining the "cost of services" must be established and accepted by all parties to the housing production equation, which can then be used to establish the "true" cost of new housing units. With this "cost of services" in hand, a program or combination of programs can be developed, whether subsidy or fee-based, to defray the impact.

Recommendation

The Commonwealth should establish a comprehensive model for local aid which, on a community by community basis, assesses the impact of new housing. Such a model may reallocate some portion of existing aid and establish a state local aid impact fund to defray the true impact of new housing construction on cities and towns.

We do not support this recommendation. However, we would support an incentive program for communities that are addressing their housing needs. We cannot support re-allocation of local aid, but we could support the establishment of a local aid impact fund to defray the true impact of new housing construction on cities and towns.

Density regulations, such as minimum lot area requirements, minimum frontage requirements and low density per acre requirements, are the most significant barriers to the production of housing in the Commonwealth. Density regulations in many communities have increased the competition for available smaller lots, dispersed development, wasted valuable land resources, and have increased the costs of public and private services. Moderate income home purchasers are being excluded from communities because of land costs and the selling cost of existing homes, and are finding the available small lots selling at prices beyond their means.

Although the issue of density regulations must be addressed, the Sub-Committee does not believe that a viable solution to the problem lies in a blanket statutory prohibition on municipalities enacting density regulations such as minimum lot size requirements. Establishing mandatory density regulations is not an acceptable technique for increasing housing production. Not only is such a solution unfair to areas already fully developed, but in some cases the requirement of certain density regulations may be justified by topographic or soil conditions and should be continued if such land is to be developed at all. The Sub-Committee also recognizes that home rule means that a municipality has the right, through legislated authority, to determine the location, manner and type of development it will permit within its boundaries. The State Legislature has repeatedly upheld this concept in legislation relating to zoning and subdivision control.

The Sub-Committee concludes that the Commonwealth needs a more energized and focused effort for increasing housing production.

Recommendations

1. The Commonwealth should encourage communities to use the 40B process as a way of increasing production of market housing as well as affordable housing. The Commonwealth should design programs that reward communities that use this process in a friendly manner by defraying the municipal costs incurred by increased housing production.

We support this recommendation.

2. The Commonwealth should examine all existing housing programs to determine if there are ways they can be revised to further increase housing production. For example, DHCD should review the LIP Program to see if the current guidelines make it economically feasible for a developer to construct housing under that program. Proposed program changes should be widely disseminated to the municipal and development interests affected by such changes.

We support this recommendation.

3. The Commonwealth should encourage local adoption of zoning regulations that support higher density housing near commercial and transit uses. Such actions could discourage sprawl and spread of development to "green" areas.

We support this recommendation.

4. A committee should be established by the Legislature that includes local officials, developers, planners and housing advocates for the purpose of recommending programs, legislation and planning tools that will increase housing production in the Commonwealth. Such programs, legislation and planning tools should be available at local option so as to maintain local autonomy. In order to accomplish this aim, revenue sources and grant programs should be directed to those communities that use such programs, legislation and planning tools and work cooperatively with the Commonwealth in increasing housing supply.

We support this recommendation.

The enactment of local bylaws which impose limitations on the number of building permits which can be issued in any one year, or which permit only a certain percentage of units in any one development to be constructed in one year, or which prohibit development for one or more years is resulting in significant barriers to housing creation at all income levels. Most municipalities impose these growth controls in order to study infrastructure needs or to review zoning. Some municipalities, however, impose growth controls simply to severely curtail new development or redevelopment projects without a clear action plan to resolve or correct the particular growth issue. See Sturges v. Town of Chilmark, 380 Mass. 246 (1980); Collura v. Town of Arlington, 367 Mass. 881 (1975). Moreover, Executive Order 215 provides that the imposition of a moratorium may result in the loss of discretionary funding but it is unclear whether E.O. 215 has ever been enforced against a municipality. In exchange for financial assistance to communities exhibiting a greater municipal cost burden as a result of housing development, local building cap regulations should have limited duration and purpose. The Commonwealth's population is going to grow regardless of growth control by-laws. If, for example, 60 towns enact them, the remaining communities must then shoulder a disproportionate burden.

There are, at times, real issues confronting a municipality, in terms of water supplies, sewer capacities, or school enrollments, which need to be addressed. However, these issues are identifiable and resolvable within a predictable horizon. Therefore, growth or permit controls should be substantially limited in their enactment, scope, and duration, with specific thresholds for implementation and municipal action to resolve the concern leading to the imposition of controls. Case history in the Commonwealth has shown that municipalities that enact these permit restrictions rarely, if ever, remove them from their bylaws, but rather continually renew them and frequently further restrict the number of units to be allowed annually, even after correcting water or sewer issues, or building new schools to address the student enrollment issues.

Recommendations

1. Any municipal growth control by-law must: a) identify a specific problem(s) and include a reasonable stated duration; and b) contain a strategic plan to address the problem(s). The plan, which must be approved by DHCD, shall address the specific problem(s) and propose a timetable for solving the problem(s). Should the community seek to extend the bylaw for another duration, the community must revise its plan to explain the rationale for additional time and submit the revised plan to DHCD for approval.

2. Dwelling units of two bedrooms or less should be exempt from growth control measures enacted based on municipal finance concerns as there are likely to be few children living in these types of units, but they are vitally needed for young adults and seniors.

Section 53G of GL c. 44 provides that any city or town provide rules for the imposition of "reasonable fees" for the employment of outside consultants. Many times, the amount of review fees accrued by the outside consultant in its review of a project design may exceed what is reasonably necessary to review a project. Moreover, some municipalities provide an applicant only one choice of review agent when at least four choices would be reasonable. Further, some municipalities charge permit fees that are well in excess of the reasonable cost in administering the permit program.

Recommendation

1. Section 53G of Chapter 44 should provide clear standards for the retention of outside review consultants by allowing the developer a choice of not fewer than four review consultants. To avoid the appearance of a conflict and using the Conflict of Interest Law, MGL, Chapter 268A, as a guide, it is recommended that the list cannot include an individual who has worked for the developer in the past year and that the selected consultant must agree not to work for the developer for at least one year after the conclusion of the review. In addition, Section 53G of Chapter 44 should provide an administrative appeal to the city council or board of selectmen on the reasonableness of the scope of work to be performed by the consultant, and the reasonableness of the consultant costs to be expended on the review of a project.

We do not support this recommendation. Again local control is threatened. The local community should choose who will review applications before its boards, not the developer. Are we to allow the developers a voice in hiring a Town Engineer that many communities are fortunate enough to employ to review not only public projects but also development applications?

2. If the recommendation above is enacted by the Legislature, then Section 53G of Chapter 44 should also authorize conservation commissions to impose reasonable fees for the employment of outside consultants.

We do not support this recommendation unless local choice is retained.

3. DHCD should develop a model outside consultant review bylaw that can be readily adapted by a municipality.

We support this recommendation since models are always of value to a community in determining for itself the various means of accomplishing its goals.

A tax has been defined as "an enforced contribution to provide the support of government." United States v. Tax Comm'n of Miss., 421 U.S. 599 (1975). In Massachusetts, a community may not levy, assess or collect taxes without the permission of the General Court. The distinction between a fee and a tax was discussed by the court in Emerson College v. Boston, 391 Mass. 415 (1984). The court concluded that the imposed charge by the city, which produced revenue for allocation to the general police and fire services, constituted a tax to defray the cost of a public benefit rather than a fee payable for a benefit limited to the owners of a buildings. In deciding Emerson, the court noted that fees share three common traits that distinguish them from taxes. First, they are charged in exchange for a particular government service that benefits the party paying the fee in a manner not shared by other members of society. Second, they are paid by choice in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge; and third, they are collected not to raise revenues but to compensate the governmental entity providing the service for its expenses.

There have been instances where imposed charges have been upheld as valid fees. For example, in Southview Co-operative Housing Corp. v. Rent Control Board of Cambridge, 396 Mass. 395 (1985), the court concluded that charges assessed against landlords by the Rent Control Board of Cambridge in connection with petitions for individual rent adjustments were valid fees. In Commonwealth v. Caldwell, 25 Mass. App. Ct. 91 (1987), the court found that a mooring and slip fee assessed to boat owners by a city's harbormaster pursuant to a municipal ordinance was a valid fee and not a tax. In both cases the court determined that the revenues raised directly compensated the government for the cost of providing the service.

Municipalities may be imposing fees that exceed the cost of the service being provided.

Recommendations

1. Local permit and approval fees must be based upon the reasonable costs of permit program administration, and cannot be used as a mechanism to generate revenue in excess of the costs of administration for a particular board, commission or department. Communities should be required to provide a rationale for the fees charged, demonstrating the relationship between such fees and the cost of providing the particular service through the particular board, commission or department. Any application or permit request should be governed by the fee schedule in effect at the time of the submission of the application or permit request.

We support this recommendation since all communities' fees should be based on reasonable costs of permit program administration. We caution that the result of such a program may result in a realization of increased fees to developers.

2. When review consultants are to be employed by the community, a developer should have a choice of not fewer than four review consultants. To avoid the appearance of a conflict and using the Conflict of Interest Law, MGL, Chapter 268A, as a guide, it is recommended that the list not include an individual who has worked for the developer in the past year and the selected consultant must agree not to work for the developer for at least one year after the conclusion of the review. In addition, there should be a process for administrative appeal to the city council or board of selectmen by a developer to permit the developer to contest the reasonableness of the scope of work to be performed by the consultant, and the reasonableness of the review consultants cost to be expended on the review of the project.

We do not support this recommendation. Again local control is threatened and it is not proper for the developer to choose who will review his/her plans.

Excessive road and infrastructure design and construction standards add substantial cost and create a significant barrier to creation of housing. Reasonable engineering standards can be established for infrastructure needs that can generally reflect public safety, health and environmental priorities. We note that MGL c. 41 is outside the review of this Sub-Committee on Zoning, however we understand that subdivision control and zoning are intertwined and will ultimately affect overall housing costs. Further study is needed.

Recommendations

1. A working group of stake holders, including developers, municipal officials and engineering consultants should be formed for the purpose of recommending suggested construction standards that incorporate various conditions that would affect design and use of the roadways. This committee should also prepare a guidebook containing the suggested standards for distribution to cities and towns.

We support this recommendation if only a handbook for local communities is the result. Again, the more resources a community has to make an informed decision on local development, the better off the Commonwealth will be. The list of stakeholders should be expanded to include environmental planners.

2. The Department of Housing and Community Development shall include adoption of the suggested construction standards as an action that can be used by a community to qualify toward obtaining housing certification pursuant to Executive Order 418.

We support this recommendation but note that there would need to be a provision to allow for alternatives. "One size fits all" does not work. Local character will be lost if a community is forced to a standard in order to qualify for funding.

While this report states that wetland regulation is a significant barrier to housing, it should be recognized that wetlands SHOULD be a "limiting factor" to any development project. PROTECTION OF THE ENVIRONMENT MUST GO HAND IN HAND WITH PROVIDING HOUSING. In fact, this discussion is outside of the purview of this Sub-Committee: Wetlands bylaws are not rules for zoning, but for environmental protection.

A significant barrier to the development of housing is how wetlands are regulated in the Commonwealth. A municipality's power to regulate wetlands is shared jointly with the Commonwealth. Specifically, wetlands are regulated both under the State Wetlands Act and local wetlands bylaws enacted pursuant to the State Wetlands Act. There are two major reasons why this dual regulatory authority needs to be addressed.

First, municipalities have enacted wetland bylaws covering issues that are beyond the DEP's regulatory authority established under the Wetlands Protection Act. Some local wetlands bylaws have also introduced certain "no-build" and "non-disturbance" areas located either within a wetlands resource area buffer zone or beyond the buffer zone and in upland resource areas in excess of what may be necessary for environmental protection. In addition, some local wetlands bylaws include stormwater management guidelines in excess of the DEP Stormwater Management Guidelines.

Second, dual authority to regulate wetlands creates a bifurcated wetlands appeal process. Appeals under the State Wetlands Act are governed by Chapter 30A, the State Administrative Procedures Act, and administered through the Adjudicatory Rules and Wetlands Regulations. These appeals are made initially to the DEP regional office, then through the Office of Administrative Appeals, and finally to Superior Court. However, appeals of orders issued under a local wetlands bylaw is by complaint to Superior Court in the nature of certiorari filed within 60 days after the issuance of a decision.

Similar to the Building Code, a standard and permitting/enforcement method for environmental, conservation, and health concerns needs to be established. Environmental, conservation, and health standards are necessary but they need to be uniform, predictable, based on scientific or engineering fact, and have some compelling public benefit to their enactment.

Recommendations

1. The State Wetlands Act should be the primary authority for the regulation of Wetlands in the Commonwealth. A municipality should have the ability to enact more stringent regulations if based on science and approved by the DEP.

Our view of this recommendation is that communities ALREADY do this. If there are no local regulations, then DEP regulations are automatically in place. Local regulations ARE based on science. Local authority to set standards more strict than state regulations has been upheld in the courts. We do not agree that DEP should hold final say over local bylaws. We see no need for this recommendation.

2. In communities where local wetland bylaws have been enacted, the current dual appeal process should be combined by creating a consolidated appeal process to be administered by DEP.

We do not support the eroding of the appeal process as it stands today. We see no value in making it less rigorous with respect to environmental protection.

It is also recommended that the DEP review their policies relative to appeals and consider the following suggestions.

While the majority view was to forward these comments to DEP, we see no value in making these recommendations which dilute the appellants ability to appeal.

1. Revise the DEP's Expedited Review Policy to permit expedited review of significant housing development opportunities such as large multifamily projects and/or affordable housing projects. 2. Eliminate several of the appeal routes/procedures provided under the Adjudicatory Rules that are not specifically based upon the Wetlands Act. For example, a person wishing to prolong an adjudicatory appeal may file a "motion for reconsideration" of the adjudicatory appeals decision issued by the administrative law judge ("ALJ") even though such request has no merit. See 310 CMR 1.01(14)(d). Such a request may significantly add to the delay in obtaining a "final" approval and has rarely, if ever, been successful in reversing a decision issued by the ALJ. 3. Mandate that appellants strictly comply with the specific regulatory part of the request filed. 4. Require appellants to post a bond when appealing to reduce the number of frivolous appeals. 5. Limit issues raised in an appeal to those expressly identified in the appeal, and preclude new issues for appeal which are gathered from those not a party to an appeal at DEP site visits or through ex parte contact with the DEP. 6. Mandate that strict timeframes be adhered to by both applicants and appellants under penalty of dismissal with prejudice, and without the ability to submit new information beyond regulatory timeframes.

It is very inexpensive for communities and abutters to appeal subdivision approvals and tie up housing projects for years, yet costly for developers to litigate arbitrary decisions by boards. Currently appeals of zoning by-laws and subdivision decisions can be appealed to Superior Court. Under current law such appeals are not given precedence and can take up to one to three years for a final decision. Only the largest building companies have the cash flow to support the costs for these suits.

In addition, the State Zoning Act includes an obscure provision relating to the posting of bonds and the awarding of court costs resulting from appeals of approved subdivision plans. Specifically, Section 17 of the Sate Zoning Act (MGL c.40A, s. 17) provides that "the court shall require non-municipal plaintiffs to post a surety or cash bond in a sum of not less than two thousand nor more than fifteen thousand dollars to secure the payment of such [court] costs in appeals of decisions approving subdivision plans" … and that all appeals under Section 17 … "shall have precedence over all other civil actions and proceedings." Further, all the provisions of Section 17 relating to the posting of bonds and the awarding of court costs should be more broadly applied to the appeals of special permits in addition to appeals of approved subdivision plans.

Moreover, the appeals process gives an unreasonably powerful tool to anti-housing interests, since arbitrary and frivolous appeals can be lodged with little or no basis, cost or risk. The appeals process needs to be corrected and clarified so that it is a balanced and efficient resolution to genuine issues.

Recommendation

1. Section 81BB of the State Subdivision Control Law should include language identical to Section 17 of the Zoning Act with respect to requirements for the posting of bonds and the awarding of court costs when a party appealing a decision approving a subdivision plan acts in bad faith or with malice in making the appeal to the court.

We do not support this recommendation since it erodes the public process.

2. Section 17 of Chapter 40A should mandate the court to impose on non- municipal plaintiffs the requirement to post a surety or cash bond in a sum between $2,000 and $15,000 to secure the payment and award of court costs to the applicant in appeals of decisions approving special permits when the court determines the appellant acted in bad faith or with malice in making the appeal to the court.

We do not support this recommendation since it too erodes the public process.

3. In addition, or as an alternative, to requiring appellants to post a surety or cash bond, Chapter 40A, Section 17 and Chapter 41, Section 81BB should provide the applicant with the right to file an immediate, special motion to dismiss an appeal of an approval of a special permit and /or definitive subdivision plan approval if the applicant feels it can demonstrate that the appellant acted in bad faith or with malice in making the appeal to the court. In such circumstances when the court grants such special motion to dismiss based upon its findings of bad faith or malice, the court shall award the applicant both costs and reasonable attorneys fees including those costs and fees incurred for the special motion and any related discovery matters.

We do not support this recommendation since it too erodes the public process.

4. Senate Bill No. 810 of 2001 would amend MGL, Chapter 183 by giving precedence to any civil action or proceeding involving real estate permits. A real estate permit is defined as any authorization, certificate, building permit, license, variance or other approval issued by an agency, department, board, commission, authority or other governmental body or official of the Commonwealth or any city, town, or other political subdivision thereof to any person, firm, corporation, or other entity for the erection, alteration, repair or removal of a building or structure upon land. The Legislature should enact and the Governor should support this legislation or similar legislation that would expedite litigation involving residential construction.

We do not support this recommendation since it too erodes the public process.

Many cities and towns have enacted bylaws or ordinances that are designed to reward the developer with a density bonus in exchange for the set-aside of a certain number of affordable units. Unfortunately, the vast majority of these bylaws have gone unused because most of them are unworkable. Even if they were workable, developers are frequently confused about how to implement affordable housing restrictions.

Recommendation

1. In order to encourage the use of the density bonus incentive to create additional units of affordable housing without having to go through the Chapter 40B process, DHCD should develop a model affordable housing density bonus bylaw package which includes: a model inclusionary housing bylaw, a model affordable housing restriction, recommended marketing and sales practices, recommended process for managing the affordable units, and a step-by-step guide for the developer and municipality which describes the process for establishing and maintaining affordable units.

We support this recommendation. Again, model bylaws that assist local communities in addressing local land use decisions enable the community to make reasonable choices. The ultimate authority for adoption of such a process should rest with the local community.

2. The Zoning Act should specifically allow municipalities to enact zoning provisions permitting housing density bonuses as a matter of right.

We support this recommendation when the decision is made by the local community.

Some cities and towns view residential housing development and commercial/industrial development in isolation, and do not consider the creation of mixed use zoning districts. With the recent phenomenon of the corporate campus and other large office-type developments, it appears that the developments would be ideally suited for the creation of the New England village style of development whereby commercial development can be surrounded by (or interspersed with) residential housing at all income levels. Given that the lack of affordable housing is a factor in out-of-state companies declining to move to the Commonwealth, several actions could encourage these companies to relocate to Massachusetts.

Recommendation

1. The Commonwealth should provide incentives to companies looking to relocate to the Commonwealth and/or looking to develop corporate campuses to create housing to complement the commercial development. Such incentives could include enhanced tax increment financing which could be expanded to include housing creation as part of a mixed-use development package. Other financing incentives which link commercial development incentives with housing creation could expand housing opportunities, and result in the creation of a revenue neutral project. Such incentives could be targeted for developments which locate in existing commercial/industrial areas as well as areas located adjacent to mass transit corridors.

We support this recommendation, and in fact encourage this type of planning.

2. Allow the abandoned building tax credit to be used to encourage the redevelopment of urbanized blighted areas into new neighborhoods.

We support this recommendation and again encourage this type of planning so long as the "new neighborhoods" include housing for all income levels, not only our lowest-income citizens.

Over the past several years, particularly since the enactment of the hazardous waste brownfields amendments to Chapter 21E, the Commonwealth has created a whole menu of financing, grant and tax incentive programs designed to encourage the redevelopment of urbanized brownfields contaminated by oil and/or hazardous materials. The key focus of these Brownfields programs, as administered through the Governor's Office of Brownfields Revitalization, has been commercial/industrial development and related job creation.

Recommendation

Where brownfields are suitable for residential development, authorize such housing projects as eligible for state brownfields programs and related incentives to redevelop urbanized areas into housing for all income levels. For example, subsidized environmental insurance can provide incentives for redevelopment of housing and the cleanup of hazardous materials. The Brownfields Tax Credit and Municipal Tax Abatement programs would also provide incentives to both remediate contamination and create additional housing opportunities.

We support this recommendation and encourage this type of planning, so long as the housing is truly developed to serve "all income levels".

Urban redevelopment corporations are private, limited dividend entities which are created under Chapter 121A and 760 CMR 25.00 to develop residential, commercial, recreational, historic or industrial projects in areas which are considered to be blighted or substandard. The urban redevelopment corporation may not undertake more than one project nor engage in any other type of development activity. The corporation bears the responsibility for planning and initiating the project and owns the project throughout its existence. Chapter 121A authorizes the exemption of a project from real and personal property taxes, betterments and special assessments, and allows the project developer to exercise the power of eminent domain to assemble a development site in specified circumstances. By allowing the tax exemptions, urban redevelopment corporations act as catalysts for development in areas with high property tax rates. The reason Chapter 121A corporations have not recently been used for the creation of affordable housing is that by law, the 121A entity may earn no more than an 8% return on investment, and any excess profits (after all eligible deductions) must be returned to the municipality up to the level of tax that would have been assessed if the property were to include a non-121A entity.

Recommendation

Amend Chapter 121A to increase the return on investment to that permitted under certain programs under Chapter 40B (i.e., 20% of development costs for non-rentals, and 10% of equity for rental housing).

We support this recommendation and encourage this type of planning.

Increasing and facilitating housing production should be examined from a regional perspective. Planning for housing in regions or sub-regions should be supported by the Commonwealth. Regional housing development decisions that are guided by the housing market, demographic conditions, the area's economy, and available or planned infrastructure target the areas where housing development should occur, prevents sprawl and encourages more efficient development. Regional planning agencies can serve as catalysts and conveners of regional planning for housing.

Recommendation

In addition to supporting the planning efforts supported by Executive Order 418, the Commonwealth should examine the applicability of regulatory tools, such as those of the Cape Cod Commission, as a way to direct housing production to areas of greatest need, while protecting natural resources and assuring an adequate public transportation network and infrastructure for the housing to be built.

We support this recommendation and encourage this type of planning.