Chapter 40B of the General Laws of Massachusetts was originally designed to increase the stock of affordable housing in the Commonwealth.  The goal was that 10% of the dwelling units in each city or town be “affordable.”  In any community where the affordable housing stock fell below this goal, or the area zoned for residential, commercial, or industrial uses was less than 1.5% of the area of the community, the developer was allowed to violate local zoning and obtain a “comprehensive permit”  to build essentially whatever he wanted wherever he wanted.  The developer was supposed to be either a non-profit organization, or a limited dividend company with profits limited to 20%.

This worked fairly well, after a fashion, when housing was being built, typically by non-profits, for poor people.  But, in recent years developers, both local and large out-of-state corporations, discovered how this law could be exploited.  Only 25% of the units need to be “affordable” and 75% can be “market rate.”  The state provides subsidies.  Developers got around the 20% profit limit by exaggerating land values, using related companies for various services at inflated prices, and generally padding the costs.  These abuses have recently been excoriated by the Massachusetts Inspector General, who found excess profits of millions of dollars in a sample of reviewed projects.  The profits above 20% were supposed to be paid to the city or town for their affordable housing trust funds, but the communities have had to sue the developers in court to get the money.  And, even if they get it, the oversized,  inappropriate, didn’t-need-to-be-that-large project will be there indefinitely.

Another trick was the “expiring use” whereby the affordable units would stop being affordable once the (subsidized) mortgage was paid off.  Some towns woke up to this same and required that the units be affordable in perpetuity.

I believe that every person should have a decent roof over his or her head.  In an affluent society such as ours, there is no reason why this should not be so.  But 40B as presently constituted is not doing the job.  A couple of local examples:  on Brattle Street in Arlington, a developer was allowed to squeeze in 16 units on  a half-acre parcel, with virtually no open space, in a flood plain.  In Belmont, just across Route 2 from Arlington, a permit has been issued for several hundred units in a fragile area abutting the Alewife Reservation, which contains the last remaining stand of silver maples in the metropolitan area.  No account was taken of traffic impacts or flooding on local streets in Arlington or Belmont.  The statute needs improvement to prevent such outcomes.

Inclusionary zoning, on the other hand, requires developers to provide 15% of the units as affordable, and to construct the project within the wise constraints of the local zoning by-law or ordinance.  Thus, the decisions which a community has made – for the benefit of all the people – with regard to height, density, set backs, open space, parking, traffic impacts, etc. are observed, and the residents of affordable units get a decent rental or ownership home while the developer still makes his profit. 

In any event to ease the burden of heating costs for affordable homes and as sound environmental policy, new construction of affordable subsidized homes including 40B projects should meet LEED standards for construction and should be at least in part powered by geothermal, solar, and/or wind power.  Use of subsidies for affordable housing should be extended beyond the black hole of 40B projects to, instead, “buy down” existing condominium units and modest homes for affordable housing and to rehabilitate existing buildings and complexes for use as affordable housing.

The exploitation of Chapter 40B and its essential monopoly on affordable housing subsidies has probably contributed to the steady increase of homelessness among families in Massachusetts – a 57% increase in 15 years (Boston area homeless are now estimated at 6,000).  Families of modest income are excluded from the “affordable” homeownership units built by 40B developers since in general no families making less than 70% of median income are eligible.  Thus even our starting police, teachers, and firefighters on a single income are excluded from these 40B “affordable” homeownership units despite the desirability of providing affordable homes for workers in their own municipalities. 

  “You have placed your trust in me for 19 years, and I have kept that trust in all that I have done.  Should you elect me as your Representative, I will do the same.  I will work for you and for Arlington & West Medford, and Massachusetts to be the best that they can be.”