Mixed bag for 40B builders

Proposals to build developments that include affordable housing have had a mixed record of success in Boston's western suburbs, a Massachusetts Institute of Technology study funded by developers has found.

Fifty-five percent of projects proposed from 1999 to 2005 under Chapter 40B, a state law intended to promote affordable housing, have been built, the study found. The remaining projects have hit roadblocks that, in some cases, have led to appeals to the state and even to litigation.

Some observers saw the figures as proof the law is working, even though it is meeting some resistance.

"For all the complaining, it is doing what it was intended to do," said Clark Ziegler, executive director of the nonprofit Massachusetts Housing Partnership, a state agency that helps to fund affordable- housing projects.

Chapter 40B allows builders in communities that don't meet the state minimums for affordable housing to bypass most local zoning and build denser residential developments -- if a portion of the units are sold or rented at below-market rates.

While the law is hailed by some, it also has its critics, who say it has forced communities to allow projects that do not fit with their long-term planning.

Jeffrey Nutting, Franklin's town administrator, said the 40B law could, for example, allow residential projects on commercial and industrial land in his town.

"Take up our commercial and industrial land? They should be on residential land. It usurps all logic from a planning perspective," said Nutting, who said he believes the law should be revised.

The study, titled "Chapter 40B Permitting and Litigation," used data from 113 communities in Greater Boston. It was funded by developers who have built 40B projects.

The study included 24 communities west of Boston. In those cities and towns, builders applied for 76 permits. Seven applications are still pending, 56 were approved, and 13 were denied. Forty-two projects have been built, offering more than 3,200 affordable-housing units that are either rentals or condominiums.

In a number of cases, a zoning board decision did not end the discussion. Twenty-one zoning board decisions -- both for and against projects -- were appealed to the state Housing Appeals Committee, while litigation has been filed in 10 cases.

Lynn Fisher, an MIT assistant professor who wrote the study, said the data show that towns are not dragging their feet on projects.

"We thought there was tension between builders and towns," Fisher said. "But we found that the towns were doing their job."

The study found the average waiting period for a permit to be approved was 10 months in the 24 western suburbs examined. That includes the processing of applications by the communities, as well as appeals and applications being put on hold while they awaited a judge's ruling.

Time-consuming litigation is becoming more popular among community members who want to stop the projects, said Aaron Gornstein, executive director of Citizens' Housing and Planning Association, a backer of the law.

"Opponents are recognizing that if you can delay the start, there is a chance it might not occur at all," Gornstein said.

The 40B law also has drawn flak from those who worry that some developers may have overstated their costs to increase profits illegally. By law, developers must, in exchange for their reprieves from zoning rules, limit profits and turn over any excess to the community for more affordable housing. The state inspector general is investigating several developers statewide who allegedly violated that law.

Each project has its own reasons for being accepted, rejected, or slowed down, say municipal officials and housing specialists.

In Bolton, requests for Chapter 40B projects often come under close scrutiny that result s in applicants waiting for months. In the seven years the study examined, Bolton received three applications; all became mired in appeals and litigation. "You have these projects that often have a housing density that are so much higher than what has been traditionally built in these towns," said Nat Tipton, Bolton's town planner. "The hearing processes can be quite contentious and they can drag on for a little bit longer than your usual subdivision."

Vincent Gately of Sudbury, who sought to build 28 units, seven of them lower-cost, on Wattaquadock Road, has been delayed for years, Tipton said.

In 2002, the town Zoning Board granted Gately a permit, but with restrictions. The builder then appealed to the state. The state instructed the Zoning Board and Gately to reach a settlement. The board approved the project in December 2005, but the work has yet to begin because Gately has to meet requirements from the town's Conservation Commission and Board of Health, Tipton said.

Such a lengthy process is uncommon, but the town reserves the right to make sure new developments don't destroy its New England character, Tipton said.

"It's not 'anything goes,' " he said. "You still need to appreciate the fact that it's a project in a town with a long history and you want that project to meld with the town's fabric."

In Newton, Chapter 40B developments had a greater chance of acceptance. Six builders applied for 40B permits. The Zoning Board approved five after an average of two months of hearings.

Matt Carroll of the Globe staff contributed to this report.