Opinion: State's 40B law needs teeth, not promises
By John Belskis
I disagree with the contention of Guy Webb ("No silver bullets for the state's housing crisis," Closing Thoughts, March 5) that the recently-uncovered excess profits were "honest" mistakes or oversights. One has but to look at the IG's Acton audit to see that the very same developer who was sued by the Town of Boxboro and awarded $1.2M of excess profit, was then in the subsequent Acton 40B once again in excess.
Our organization, The Coalition for the Reform of 40B, agrees that more oversight and regulation reform is necessary. But Mr. Webb owes a clarification as to what needs reform. The track record to date has been total capitulation to developer concerns with little consideration of local issues. One of the reforms we seek has been the need for inclusionary zoning (IZ) and perpetuity of 40B-developed affordable units, mandatory statewide. Lawmakers have repeatedly voted these measures down.
For those unfamiliar with the concept, IZ says that every development exceeding a certain level of units (generally 6-10) will include a percentage of affordable units and in addition such units will remain as affordable in perpetuity. Currently Massachusetts is in danger of 20,000 affordable units returning to market rate in the near future due to expiring use. We'd like to know why developers oppose something that has proved successful in creating affordable housing.
Despite Mr. Webb's assertion that towns obstruct affordable development, many of our towns are approving the IZ and perpetuity bylaws that the legislature and the developer industry oppose. In my opinion, many of our upscale towns richly deserve 40B projects for their failure to provide affordable units. But to allow 40B abuses to continue under the banner of "anti-snob zoning" is a fallacy that needs correction.
Chapter 40B has existed for almost 40 years. Yet Massachusetts remains at the bottom of the list for affordable unit production. The law is an abject failure and will remain so until a sincere and evenhanded effort is made to reform it into something reasonably effective. Forget about 40R as a valuable tool for responding to town concerns about infrastructure expenses and providing compensation to offset 40B impact. The legislature made no provision for ongoing funding for this inducement, yet the law's proponents never make that fact known to the local entities to which they are promoting its acceptance.
The state legislature passed 40B with the full process of public hearings and comments and a record of the legislative voting. 40Q, 40R, and 40S were all passed as outside sections to the budget bill without any public notice or any record of a vote particular to these laws. We think the developers' lobby exerted great influence in ensuring that little or no public awareness was made in passing these adjuncts to the 40B process.
The ubiquitous 10 percent goal of 40B is a moving target that, for many towns, is a difficult if not unattainable target. That's partly due to its 25 percent affordable to 75 percent market rate structure for ownership units, as the 75 percent become base of total units that the 10 percent is measured against. This virtually ensures that the 40B developer's welfare program will continue indefinitely.
John Belskis is chair of the Coalition for the Reform of 40B, an advocacy group for reform of state housing law. He can be reached at j.belskis@verizon.net.
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