The 40-B Game: Managing our Future

When it comes to 40-B, it all comes down to money. Each of the two 40-B projects working their way through the system has the potential to yield $15-25 million in profit for developers and investors. Inversely, each project has the capacity to cost the town millions of dollars in increased expenses for education, police and fire, and additional infrastructure. Done correctly, the added costs will be canceled out by increased tax revenue. Done badly, a 40-B project could end up increasing the burden for all tax payers.

"An Idiot's Guide to 40-B"

To understand the risks and rewards of 40-B it’s necessary to understand the dynamics behind the law. Massachusetts has a serious shortage of ‘affordable housing’ for families which are just getting started, and folks living on fixed or moderate incomes.

In theory, nearly everyone is aware of the crisis and almost everyone thinks something should be done. In reality, NIMBY politics (Not In My Back Yard) virtually guaranteed that no town will voluntarily host an "affordable housing" project. The state needed a mechanism to break the deadlock and Chapter 40-B was born.

In a nutshell, Chapter 40-B mandates that communities MUST approve "affordable housing" development plans if less than 10% of the local housing stock is classified as "affordable". The chapter short circuits snob-zoning requirements of minimum lot size and allows for higher density developments (more housing units per acre).

The law also short circuits the normal permitting process and concentrates the permitting authority into one board, the Zoning Board of Appeals. Under the provisions of the law, the ZBA is transformed into a "super board" with the authority to speak for every other board in town. Like a sun going nova, the ZBA suddenly outshines every other star in our governmental galaxy.

With so much a stake, and the stakes are enormous, it is prudent to take a look at who’s pulling for our side in the 40-B tug-of-war. It would be wrong to say the ZBA is Kingston’s last line of defense against an ill-conceived 40-B project. The reality is our ONLY line of defense.

At this point, as the selectmen prepare to "fix" a broken ZBA, the issue before our town fathers shouldn’t involve politics, personality, or even likeability. The only criteria with which to gage suitability for this appointed office is individual and collective competence, pure and simple. And the only reasonable basis by which to judge competence is past performance.

It is on past performance that our current ZBA fails the test. Each and every member fails individually and all fail collectively. None of the members of the ZBA (with the exception of Hass) have displayed even the minimum level of proficiency. The proof of this statement can be seen in a quick review of this board’s most recent history.

ZBA members have officiated at major high-profile hearings without any understanding of the process and the law they are required to comprehend in order to apply. First they convened a hearing in order to hear an appeal from L. Knife. It was an appeal which the ZBA had no authority to hear because it was an appeal which could not legally come before their board.

In opening the Knife hearing the ZBA ignored the law and warnings from members of the public. To add insult to injury, none of the members had even read the planning board denial which was the presumed basis for the hearing. Not one of them had even bothered to bring a copy of the planning board’s decision with them to that hearing.

Then along comes the 40-Bs now before the ZBA. Again none of the "seasoned members" were prepared. None of the board’s veterans had bothered read the engineering report prepared for them at great expense. The engineering report was a critical piece of evidence and is a key component of the process. With the single exception of Mr. Haas, no member had done the most basic pre-meeting homework.

By any yardstick the ZBA fails to measure up to the standards required to represent the town’s interests in a 40-B contest. Unable to defend the board on its record, some have tried to turn the ZBA’s deficiencies into a virtue by suggesting that it is OK that we are represented by folks who aren’t the "brightest bulbs in the socket" – because, after all, they’re only volunteers.

The 40-B hearings currently underway are to Kingston what the Super Bowl is to the New England Patriots. Try to imagine the uproar from sports fans if the Patriots took to the field with a 78 pound quarter-back and manned the rest of their starting formation with players recruited from one of their farm teams?

The selectmen are doing what good team managers do before any championship game. They are culling through the starting line-up and attempting to field the strongest, swiftest and most able team possible. Under the chairmanship of Mark Beaton the selectmen are displaying unprecedented leadership and courage on behalf of Kingston.

As we watch the drama play out it is critical to remember that the ZBA is first, and foremost, an appointed board. Members serve at the pleasure of the Selectmen. ZBA members do not have an inherent right to office. They can be appointed or not-appointed for any reason or no reason at all. Any sitting member can be removed mid-term "for cause" by a majority vote of the Selectmen. Even the most critical skeptic would be forced to agree that a demonstrated lack of competence is sufficient grounds for removal, if that is the pleasure of the Selectmen.

At this 11th hour, Kingston’s Selectmen are attempting to level the playing field and to give Kingston a fighting chance against developers and their representatives. The stakes on our side of the table are Kingston’s future, our quality of life, and the value of our homes. On the other side are tens-of-millions of dollars in profit margins. Kingston has too much at risk to be represented by anything less than our best and brightest.

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