What is the 40B Law?
![[Illustration] 40B crumbling](http://framingham.com/news/wp-content/uploads/2010/07/2010-40b-question-2.jpg "MGL Ch. 40B")
What is 40B?
More than the battle to buy, rent or obtain affordable housing, the battle over "What really is affordable housing?" and how much of it should be built, along with where, when, why and how it should be built -- and "On who's terms?" are what is in dispute.
Neither side is saying affordable housing is bad. In fact both sides appear to be advocating responsible development of affordable housing in Massachusetts.
So, what is 40B ?...
Officially known as "The Regional Planning Law", Massachusetts General Law, (M.G.L.), Chapter 40B contains29 section and two sub-section and was enacted in 1969.
At issue is whether we (MA Voters) should vote to keep or repeal a portion of the 40B law --- to be precise; Sections 20 through 23 which appear in the law under the heading "Low and Moderate Income Housing".
A group of citizens known as "The Coalition to Repeal Chapter 40B" gathered enough signatures to get the question of whether the State should repeal those sections of the law onto the November 2010 ballot as Question #2.
The group claims these sections which were enacted to insure the construction of affordable housing have actually caused Massachusetts to become the 3rd most expensive state to live in and saddled cities and towns with unsustainable development.
Opponents claim the law has allowed developers to build huge luxury condo complexes, large upscale town house developments, apartment buildings and other multi-unit projects which are out of sync with local planning and zoning. And local boards can't do much to stop them.
MGL 40B, Section 21, in-part says a developer "...proposing to build low or moderate income housing" can apply to "build such housing in lieu of separate applications to the applicable local boards" under what is called a "single, comprehensive permit"
In 1969 the need for the law came as a response to what some called "Snob Zoning".
Prior to 40B, some communities with high property values would reject "affordable housing" developments citing sometimes frivolous local zoning reasons, or placing excessive restrictions or conditions on the developer that were not economically feasible. There's no doubt permits were denied to prevent lower income individuals from moving into certain cities and towns.
About the only defense a city or town can use [to a proposed 40B development] is that there already exists sufficient affordable units "consistent with local needs". The law defines those needs -- basically saying that 10% of the housing in a city or town be "affordable", or that the total land use for affordable housing meets a certain percentage of countable land.
Proponents of 40B point to "growth" and increased residential real estate tax revenue as benefits of the law -- in addition to the construction of some affordable housing units. Opponents point out that only 20%-25% of these development need to be "affordable" to take advantage of the law -- and that in many cases these affordable units are available to people earning $80k/year.
Opponents say proponents fail to account for the costs to provide municipal services including water & sewer infrastructure, road maintenance, snow plowing, police, fire, K-12 education and other services that can exceed any potential tax revenue.
Opponents of 40B also claim proponents of 40B are mostly developers, government officials and "affordable housing advocates" who profit directly or indirectly from he law.
Opponents also claim that there is more than enough developed property that should be rehabilitated before more open space is built on, and many other reasons why 40B should be repealed -- and that poor oversight of the current law has allowed developers to walk away with excessive profits leaving cities and towns saddled with unsustainable financial burdens and overdeveloped properties.
Politicians, (including three of the four candidates for MA Governor in 2010), oppose the initiative to repeal 40B, claiming it will cause construction job losses in the state, loss of local property tax revenue and loss of affordable housing units. Other voices of support to leave 40B as is come from those living in or on waiting lists for State and Federal subsidized low income housing -- along with the usual cast of government employees, social service agencies and others who are involved with low income "affordable" housing.
With just 4 months before the November elections, both sides are ramping up their best marketing pitches hoping to sway those who haven't put much thought yet into the 40B issue over to their side of the fence.
Massachusetts voters will decide whether MGL Ch. 40B, Sec 20-23 stay as-is, or get wiped off the books by casting their votes on Ballot Question #2, November 2, 2010.
- a "Yes" vote on Question #2 is a vote to repeal sections 20-23 of MGL Ch. 40B.
- a "No" vote on Question #2 is a vote to leave the law as is.
Resources:
The official Question #2 summary , titled "Comprehensive Permits for Low- or Moderate- Income Housing" can be found on the MA Secretary of State website at: www.sec.state.ma.us/ele/elepip10/pip102.htm
Full text of the "The regional planning law", (MGL Ch. 40B), can be found on the State of Massachusetts' website at: www.mass.gov/legis/laws/mgl/gl-40b-toc.htm
The Coalition to Repeal 40B, the group behind the ballot initiative, has additional information, links to relevant reports and news accounts, along with proposals for alternative legislation to replace Sections 20-23 of MGL Ch. 40B on their website at: www.affordablehousingnow.org
The Committee Against Repealing 40B, which is a "Vote No on #2" group operates a website at: www.protectaffordablehousing.org where you can find opposing views to the ballot initiative.
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Affordable housing helps our environment by allowing locals families, who cannot afford the pricey Massachusetts housing market, to stay in their community instead of moving to a distant, less expensive areas where they will be forced to have a longer commute and also bigger carbon footprint.
Comment by Shanaz Kerr — July 22, 2010 @ 4:22 pm
Residents who already live in the community where construction of affordable units are being developed are given preference to live there by the affordable housing law — the law is important to working families and seniors in our communities. I’ll be voting NO on #2 to save this important law.
Comment by Holly — July 22, 2010 @ 6:14 pm
I re-read my own article, and the comments so far. My statement near the end of the article; “..along with the usual cast of government employees, social service agencies and others who are involved with low income ”affordable housing”, gives away my opinion on the matter. The law is badly broken.
I am not against affordable housing.
If anyone were to read the sections that are in question — and then the history of many 40B developments in Massachusetts they would have to vote Yes on #2.
To make up “lost profits” of selling or renting “affordable” units, the developer can claim the project is uneconomical and request to build with less open space — the densely packed units put more demand per acre on local resources than municipal infrastructure can handle.
Part of 40B is that developers are supposed to be limited to 20% profit. Ethical developers of a $5M project should be happy with that — it’s a million bucks profit. But, more often than not the developers lie and cheat to increase their profits. The “excess profit” is supposed to go back to the city or town — but it never does. The developers claim they paid 3-4 times the actual value of the land by shuffling it through trusts, then overstate labor and materials costs, or bill work from other jobs on the project budget, and otherwise take advantage of programs designed to build affordable housing for low and moderate income citizens.
When the projects are complete, a dishonest developer might sell units at a loss to real estate trusts they are connected to, claim the loss, then later resell the units for more profit — money that should have gone back to the city or town.
Don’t take my word… Here’s the Massachusetts Inspector General testifying about the failures of 40B.
…the video is from 2007, but the problem he explains is that they sampled a tiny fraction of the 40B projects in a few cities and towns and found $4-$5 million owed to those cities and towns — most of it outright fraud. To be fair, I’ll mention that his office did find a total of $17,000, (seventeen thousand dollars), that had actually been paid out as it was supposed to.
Comment by Randy Harris — July 23, 2010 @ 8:17 am
It saddens me to see a reporter so ill informed about the subject he is writing on. Many working families including local teachers, nurses, police officers, etc.; seniors and disabled individuals rely on affordable housing in their community because they have been priced out of the housing market. Without the affordable housing law organizations like Habitat for Humanity, who build to help those who are unable to help themselves, would not be able to construct homes for those in need. You sight so many problems with developers, but the fact is the IG only found 5 instances misuse of 40B out of tens of thousands. You do sight some facts, but all I ask is for honest reporting and not to mislead people with onesided statements so that they’ll agree with you. Let them decide for themselves.
Comment by Adam Davis — July 23, 2010 @ 9:10 am
Hi Adam, thanks for commenting — but I think you should listen to the video again — the Inspector General says that only 7 communities were reviewed — and of those 5 had problems of abuse totaling $5 million dollars. He also states that cost certification was virtually non-existent from 1969 to 2007. Pretty bad numbers since there are 351 cities and towns in Massachusetts. But, balanced reporting requires I mention the $17k in excess profits that were paid.
A few years back Massachusetts passed a consumer law that if a grocery store overcharges for an item, they have to give it to you for free. The reason: when sampling the “errors” in bar code scanners, cash registers, etc.. they found an overwhelming majority of the “errors” were in favor of the stores, (I believe it was in the vicinity of 90%)… if it were truly an error, there would have been an equal distribution of overcharging and undercharging.
I do not think Habitat for Humanity constructs overbuilt luxury condo complexes where between 3/4 and 4/5 of the future residents are not low or moderate income…
November is a ways off, and I am not so stubborn that I can’t be persuaded I’m wrong.
And yes, people should decide for themselves — and be provided as much factual information as possible to help them make that decision.
Comment by Randy Harris — July 23, 2010 @ 10:17 am
40B is a scam for developers. It is not for nurses, teachers, police officers, firemen and seniors. Check it out. 40B affordable housing is almost exclusively occupied by single unemployed mothers from the inner cities.
40B is a dramatic failure. It has failed in producing a substantial amount of affordable housing compared to other laws in other states.
40B is a vehicle for developers to scam the taxpayers out of money. In the end, 40B has resulted in very few affordable homes over the last 40 years. But developers have made millions.
Comment by Jack — August 18, 2010 @ 3:57 pm
[…] But, many people are concerned that contractors are manipulating the law now to build and charge regular rent under the guise of affordable housing in communities where there is less than 10 percent. Read the debate. […]
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