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Repeal of Chapter 40B May Be on 2008 Ballot

by John Andrews, MCHC, by John Andrews, MCH

October 9, 2007
Repeal of Chapter 40B May Be on 2008 Ballot
by John Andrews

Passed in 1969, the states Chapter 40B law (also known as the comprehensive permit law) is a Massachusetts state statute which allows real estate developers who include a certain percentage of affordable housing in their projects to be exempt from local zoning guidelines and to appeal local zoning board denials or restrictions to the state Housing Appeals Committee (HAC). The stated goal of the law is to increase the amount of affordable housing in Massachusetts. But it does not provide any funds for such housing. Instead, it allows real estate developers in communities which have the least affordable housing to brush aside local permitting processes as long as 25% of the units in their development are “affordable” . This has resulted in poorly sited developments that are mostly luxury units consuming scarce buildable land. It has also produced a series of incidents involving outright fraud by developers hiding excess profits.

A close look at the impact of Chapter 40B indicates that it is not a very successful vehicle for building affordable housing. In some cases it has been used to bludgeon communities into forgoing the possibilities of affordable housing on a site (“If you don’t let me build my 250 luxury units, I’ll file for a 40B permit and you’ll see something even less appropriate.”). It also fails to provide the housing that is affordable for the people who have serious housing problems. Under 40B, affordable housing is defined as units which can be afforded by households making 70-80% of the local median income. Thus, the “affordable” units are actually unaffordable to people earning less than 70% of the local median income.

A citizens groups called Repeal 40B has filed a ballot petition to repeal Chapter 40B in 2008. They assert that local initiatives which are consistent with good town planning can do a better job of creating affordable housing – and that Chapter 40B is merely “a tool being used by developers to extract huge profits at the expense of our communities and neighborhoods.”

Needless to say, the real estate developers, and their supporters at the Citizens Housing and Planning Association (CHAPA) are fighting the repeal of Chapter 40B. They admit that 40B has been unsuccessful in addressing the housing problem (Massachusetts is 49th in the nation in affordability), but insist that allowing developers to sweep aside local boards is a good reward to entice them to include affordable units in their plans. The lost opportunities in use of scarce land, disruptions to good land use planning, and corruption associated with 40B are just not part of the equation for the 40B defenders.

John Belskis, Chairman of the Coalition to Reform 40B, notes that several attempts to alter 40B to eliminate its abuses have been stymied by the power of the real estate lobby on Beacon Hill. That is why he supports taking the issue directly to the voters. Belskis sees the repeal effort as a step toward redirecting housing policy toward real solutions rather than using it to do favors for well-connected developers : “What MassHousing did by awarding millions of dollars that should have been available for affordable housing to the upscale Columbus Center condo project is outrageous.”

Further information on the petition effort can be obtained at the Repeal 40B website http://www.repeal40b.com/index.htm. A statewide effort is underway to collect 66,543 signatures by November 1 to ensure that the measure appears on the 2008 ballot. Donations to support the effort can be sent to Repeal 40B, PO Box 424, Chelmsford, MA 01824.


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