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Monika Bandyopadhyay
Suffolk University Law Student

David Barron
Harvard Law School and former Deputy Counsel for the Office of Legal Counsel in the US Department of Justice

Linda Bilmes
Senior lecturer in public policy at the Harvard Kennedy School. Assistant Secretary of Commerce during the Clinton Administration.

Brandy H.M. Brooks
Director, Rudy Bruner Award for Urban Excellence, Bruner Foundation

Felicia Cote
Rappaport Fellow, Harvard Law School/Harvard Kennedy School.

Amanda Eden
Suffolk University Law School student

Sara Farnum
Student, Suffolk Univ. Law School

Kristin Faucette
Student at Suffolk University Law School

Benjamin Forman
Research Director, MassINC

Arthur Hardy-Doubleday
JD/MBA student at Suffolk University Law School and the Sawyer School of Business

Theodore Kalivas
Boston Green Blog, Dukakis Center for Urban & Regional Policy

David Linhart
Student, Boston University School of Law

Antoniya Owens
Research Analyst, Mathematica Policy Research, Inc.

Susan Prosnitz
Senior Advisor, TSA, Washington, DC

Ben Thomas
Boston Green Blog, Dukakis Center for Urban & Regional Policy

Matthew Todaro
Student at Boston College Law School

Alexander von Hoffman
Senior Researcher, Joint Center for Housing Studies

Brett Walker
Student, Boston College Law School

Margarita Warren
Student at Suffolk University Law School

Why the Commonwealth’s Affordable Housing Law, 40B, Works

Monday, September 12th, 2011
By Arthur Hardy-Doubleday

Chapter 40B is the Commonwealth’s affordable housing law. Since 1969, it has helped create affordable housing by expediting the permitting process for developers in exchange for their designation of up to 25 percent of the units developed as affordable.

This past November, the law was threatened with repeal in a referendum question on the statewide ballot. It offered voters the chance to completely gut the law and to end the state’s ability to create new affordable housing. While the law’s administration is not perfect, 40B has accomplished its major public policy objective of developing affordable housing. Apparently recognizing the value of the law, a substantial majority of voters in November rejected repeal of Chapter 40B.

Even with Chapter 40B on the books, the Commonwealth continues to have an affordable housing problem. According to the Urban Land Institute, the Boston metropolitan area suffers from a shortage of 25,000 units. In attempt to highlight the ineffectiveness of 40B, the Coalition to Repeal 40B pointed out that Massachusetts ranks 49th out of the 50 states for affordable housing. While the recent real estate downturn has helped make home prices more affordable, many towns and cities across the state still suffer from a severe shortage of workforce housing.

Chapter 40B has developed affordable housing in Massachusetts. Chapter 40B’s purpose is to provide housing for those earning less than 80% of the median income — for example a family of four making less than $66,150 a year. Since 2000, Chapter 40B has been responsible for the building of 80 percent of the affordable housing built outside of the state’s largest cities. Since 2000 alone, 8,100 affordable units have been built. Additionally, 90 percent of the units developed utilizing Chapter 40B have been created without any conventional state or federal subsidies.

Chapter 40B circumvents the requirement that developers get a zoning variance for nonconforming use. Often zoning relief is required because the density of the development would otherwise be prohibited by local zoning laws. A developer must designate either 25 percent of the homeownership units or 20 percent of the rental units as affordable. The developer then applies to the local Zoning Board of Appeals (“ZBA”) for a comprehensive permit. The ZBA gathers input from municipal departments. The ZBA then has three options; deny the permit; issue the permit, or issue it with conditions. If the developer disagrees with the ZBA’s decision denying a permit or conditions on the permit the developer can appeal to the state Housing Appeals Committee (“HAC”). The HAC has the power overturn the ZBA’s denial and or to alter its conditions.

The HAC must decide if the denial of the ZBA is consistent with the “local needs” of the community. Chapter 40B presumes any community where the amount of affordable housing is less than 10 percent of total housing stock as in need for affordable housing .

Even when a community has not met the 10 percent threshold, the ZBA may still deny a comprehensive permit by meeting a two-part test. First, the ZBA must prove that issuance of the permit would put in jeopardy a “valid health, safety, environmental, design, open space, or other local concern.” Second, it must show this concern “outweighs the housing need.” The current regulations adopted by the state give much more weight to housing needs if the community has not met the 10 percent threshold. After a review the HAC renders its decision. It often directly overturns the local ZBA.

Chapter 40B was nearly repealed this November in a ballot question that, if passed, would have revoked the 10 percent mandate and ended state oversight of new construction of affordable housing in municipalities.

Opponents of Chapter 40B sought to highlight what they said was the failure of the law to achieve its goal of developing affordable housing. The most vocal opponent was the Coalition to repeal 40B. John Belkis, chairman of the coalition, claimed s the law lined “the pockets of the developers” by providing extra profits rather than developing affordable housing. The group claimed that after 39 years of Chapter 40B, Massachusetts ranks 49th in national housing affordability – a stark measure of its ineffectiveness. The author of the referendum ballot question, Jon D. Witten, called earlier efforts by the legislature and the governor to reform Chapter 40B a “failure,” making it necessary to take the question directly to voters for total repeal of the law.

Supporters of Chapter 40B highlighted its production track record and economic impact as positive outcomes of the law. Tripp Jones of the Coalition to Protect Affordable Housing claimed that, “40B has been the principal tool that the state has used to [build] affordable housing.” Mr. Jones acknowledged that more oversight is needed. But he claimed that Chapter 40B has been responsible for 80 percent of the affordable units produced outside of the largest cities. He also said the law is responsible for $10 billion in economic activity. The increased economic activity has resulted in the creation of 50,000 jobs, he said. On election day, 59 percent of those who went to the polls voted in favor of maintaining Chapter 40B, apparently agreeing with Jones’ assessment.

The people of Massachusetts should be glad that Chapter 40B was not repealed. The policy works. Thousands of affordable housing units have been created because of the law. Additionally, it has made the Commonwealth’s economy stronger by encouraging new home construction and by providing housing workforce housing to workers who would otherwise move out of state. If Chapter 40B had been repealed, the consequences would have been devastating.

Arthur Hardy-Doubleday is a third-year JD/MBA student at Suffolk University Law School and the Sawyer School of Business. He received his B.A. in American Studies and Education Studies for Trinity College in Hartford Connecticut in 2003. He hopes to pursue a career in real estate development in distressed urban corridors to further his career in community building.

These commentaries are based on research papers written by students in LAW 2117 Law and Public Policy. This course, an elective available to students at Suffolk University Law School, introduces students to the political and bureaucratic factors that influence the design and implementation of public policy, and provides them with the opportunity to examine policy questions facing state and local government in Massachusetts.

For the full text of this article click here.



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