40B

Oct. 24th, 2010 01:51 pm
[personal profile] dmaze
There's a ballot question this year to repeal sections 20 through 23 of chapter 40B of the Massachusetts General Laws. The existing law sets up a system where a developer can make a request directly to a town's Zoning Board of Appeals to get a single master permit for building limited-income housing.

The definitions in section 20 and the appeal process in section 23 are the interesting bits. Section 21 establishes that you can get the master permit, section 22 establishes that a ZBA's "no" answer can be appealed. Section 23 limits the scope of the appeal to determining (a) if a ZBA's restrictions are "uneconomic", and (b) whether the decision meets "local needs". The official explanation of the ballot measure says that the appeals committee to picks "local needs" over "uneconomic". "Local needs" are met (section 20) if at least 10% of the town's existing housing is affordable, affordable housing is at least 1.5% of the town's land area, the development is at least 0.3% of the town's land area, or the development is at least 10 acres; or, failing that, if the decision is otherwise consistent with the town's zoning regulations.

My impression of 40B is that it establishes a system where the town mostly can't say "no" to a proposed 40B development. This is definitely true if the state appeals committee decides your town doesn't have enough low-income housing already, or if you're building a pretty big development. Someone last night said that 40B required a certain amount of development to be affordable, and that's not in the law anywhere: if people decide not to build affordable housing, nothing requires them to (but the law lets them short-cut the planning process if they do). 40B also isn't the only state program that encourages low-income housing development. These "40B Myths" are actually pretty good for amusement value; for instance, one-acre zoning rules are, um, "a minimum requirement for environmental standards relating to septic tanks" and not an explicit density-limiting move, and 40B simultaneously doesn't produce enough affordable housing and causes developers to be tripping over each other to build more.

Typing "40B" into Google finds both pro- and anti- Question 2 Web sites. The "yes on 2" page asserts that 40B builds three times as many market-rate units as affordable; the core assertion seems to be that state regulations require 25% of the units in a development to be affordable to qualify for 40B, and in fact the state's 40B Developer's Guide lists several "80/20" programs that would appear to give the required state funding to qualify with 20% of units income-restricted. The "no" page claims that 80% of the non-urban affordable housing built in the past decade has been via 40B, and that "working-class families" generally qualify.

Who can live in "affordable" developments, and is 40B causing them to be built? HUD's 2010 income limits for individuals are $45,100 and $64,400 for a family of four at "80% of median", which is a typical cutoff; "50% of median" is $28,900 and $41,300, respectively. The 2000 Census data is a little tricky to interpret; it looks like median family income is $61,664, 80% of that is $49,331, and 38.2% of families had income of $49,999 or below. For 2009, the Census Bureau reports that 7941 units (not structures) were built in Massachusetts, of which 5074 were single-unit structures and 2431 units in 147 structures were in 5+-unit structures. The Citizens' Housing and Planning Association 40B Fact Sheet has some actual numbers: between 1998 and 2002 it claims 82% of affordable housing in communities not meeting the 40B 10% threshold was "the direct result of 40B"; also that 80% of 2007 applications were approved locally (and so 20% were appealed), and 69% of the appeals were resolved before the state hearing. I think the numbers do support the anti-2 rhetoric that 40B does cause affordable housing to be built and that it does support "working-class families".

My general impression of 40B is that it's frequently used as a "bludgeoning" tool: if a town doesn't want to allow a mildly unreasonable development then the developer will offer an unattractive but permissible 40B development in its place. The CHAPA Fact Sheet mentions several recent regulation changes to address this specific problem, of particular note "enabling municipalities to reject a 40B application if a developer submitted an application for the same site for a non-40B development within the previous 12 months". In practice, the way it's abused seems to be more about developers cheating the requirements for a "limited dividend", with the most damning article being a 2007 Globe article (quoted in its entirety here) in which the state Inspector General calls this sort of outright cheating a "'pig fest' for unscrupulous developers". Indeed, Google at least seems to be lacking stories where a 40B alternative has actively been used to try to get bigger market-rate projects.

Reading the "yes" and "no" Web sites together, I at least came away with the impression that (no on 2) 40B is the best tool the state has for creating affordable housing and that it works, and that (yes on 2) it doesn't do enough and allows too many market-rate units and so it should be thrown out in the hope that something better will come along. There's actually a pretty striking lack of evidence for any problems with the current law beyond lack of oversight on the rules limiting developers' profits. I think the data say that 40B does work towards its own stated goals, and "yes on 2" seems to be missing the explanation of why their plan will actually solve their state problems. My own preconceived opinions and why 40B is bad also don't seem to be held up by facts.

I think I don't vote "yes" on any of the state ballot initiatives this year.
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