Tuesday, November 22, 2005

The Atrocity of 40B

It is difficult to put into words the contempt that I feel for the Massachusetts 40B "anti-snob" law, which allows developers to ignore the wishes of local communities in order to build large affordable housing complexes whereever they please.

I live in the metro-west area of Boston, where more and more 40B projects are raising their ugly heads and destroying or at least permanently altering the neighborhoods, communities and landscapes around them. Once again, liberals have assumed that big government solutions are the right answer to big problems. The character of your community is unimportant alongside the greater need for affordable housing. The quality of life of your family and your home is scarcely a factor when deciding to put a 300 unit development next door to your home - so long as the common good is served.

Here is a recent example in Natick.

But this problem is not at all specific to Natick; any town with space left, any town which isnt perceived as doing its fair share to bring down housing prices is subject to this atrocity. A 300 unit concrete low income housing project might go right next door to your home. And guess what? There's pretty much nothing you can do about it.

The elected democrats of Massachusetts have bestowed this atrocity upon us, but not even Mitt Romney has had the courage to fight it. Witness the travesty of the Chapter 40B Task Force Findings and Recommendations.

Here are some of my favorite pieces:

The purpose of the Task Force was to:

1. Reaffirm the need to increase the supply of housing, a portion of which should be affordable to households earning less than 80% of area median income.
2. Assess the effectiveness of Chapter 40B to address the aforementioned need.

Undoubtedly, without this powerful and innovative tool to create affordable housing, the affordability crisis in Massachusetts would be exacerbated. Almost invariably, housing created under Chapter 40B is very well received after the development has been completed.

If this is true, why are Chapter 40B developments so widely feared by communities? These problems stem from a process that changes the expectation of neighborhood residents, is often confrontational from the inception of the process, is perceived to contain some rules that are unfair, and often leaves good projects behind due to delays.

Many of the suggestions for mitigating problems are nothing more than way to count "more" credit to communities under various circumstances. In principle, doesn't this just move the burden elsewhere?

More importantly, why are towns required to agree with the principles of 40B? So many 40B discussions begin with something like "in order to help the town meet its goals of complying with 40B affordable housing...". What if we dont god damn agree with 40B and in fact its not our goal to comply with it?

Here in America, I wonder, who is really in charge? Government central planners or free citizens and communities? Where have we got to in this state, the birthplace of freedom?

I suggest here and now that local communities use the power of emminent domain to seize any objectionable 40B lands and turn them into permanent public space. About time we use this power for something good, I figure.

Now comes Walnuthill to add some perspectives:

Demolisher, this issue needs to be discussed much more than it is. And in wholly different ways. Thank you for raising it. There are several interlocking issues involved here. They all boil down to statutory rent-seeking behaviors by a variety of folks interested in tilting the free-market playing field in various ways.

What needs discussing? Let's start with the fact that everyone knows 40B is hamhanded and broken and the only responses have amounted to rearranging the Titani's proverbial deck chairs. When the delegation that represents Natick on Beacon Hill in the Massachusetts legislature visited and met with the selectmen and school committee last Monday, one of them stated that everyone knows 40B is way broken. The others all nodded. Nobody had anything promising to say about changing or ending the abomination.

Next, let's note that for the first decade-plus of its existence, chapter 40B created by far more commercially-zoned property than affordable housing. Why? Because until about 5 years ago, commercial property values grew consistently faster than residential property values. Zoning, originally enacted to let local communities keep industry out of especially upscale residential areas, had migrated to the job of keeping some orderly separation between residential and commercial property. Large landowners who wanted top dollar ran up against elected Planning Boards that did not want to face voters after rezoning the old neighborhood farm into office parks and strip malls. Along came 40B, and the large landowner had a potent threat to make. towns rezoned a lot of property for commercial use rather than see it turn into ultra-high-density low-income housing. Who would have guessed that such a use would be made of a law that came out of the Mass. legislature, with its supporting cast of car dealers, liquor dealers, and strip-mall owners?

Then it all changed. Several large secular economic forces cooled the perennially hot commercial market: consolidation of many local stores into few large stores in many markets, the growth of telecommuting by office workers, overbuilt office space based on unrealistically rosy projections, the deflation of the dotcom bubble, retailing by mail/phone/internet from huge warehouses in Tennessee/Iowa/South Dakota/Colorado rather than from local stores and stockrooms. Suddenly, the deep pockets that determine the prevailing trends in development wanted to get into residential. So developers started using 40B for real. To create residential units.

In the time since that change, 40B has created much more unaffordable housing than affordable housing. Why is that? The Willie Sutton reason: because that's where the money is. A fine reason, but again given unattractive negative collateral effects by statutory market intervention.

But the playing field is not only tilted by 40B, but tilted -- or warped -- in multiple ways both large and small. For example, identical developments can count very differently toward a community's 40B exemption quota. Let's take a 100-unit multiple residence building in which 15 of the units are actually affordable. One is a condominium complex, and the other is a rental apartment complex. In the former development, 15 units "count" toward the 40B exemption. In the latter development, 100 units "count". Why? Is there a policy-related reason? Nuh-uh. Map the communities where there are a high proportion of rental complexes, and you will find a key to the home districts of thelegislative leadership. Boston in particular owes a large part of its exemption to this artifice. The flip story if also true. Units that are perfectly affordable in fact do not count as affordable in law. For example, any units created by zoning variance. In this case, if one maps the affordable housing units in the state that have been created in detached garages or old barns and sheds, very few of them fall in the home districts of the legislative leadership. Sort of starts to sound like Politburo behavior, huh?

In 2004, threatened by a governor whose support included a bunch of folks upset with the travesty that is 40B, the legislature decided that something needed to be done. Or more accurately that something needed to seem to be done. So they passed a "reform" with the following notable features (my comments in brackets following each feature):

- 50% of all mobile homes would be eligible to be included toward the city or towns affordable housing threshold.

[Note that this 50% is not based on affordability. It is just an arbitrary 50%. Sort of like the arbirtrary 100% of units in a qualifying rental complex. Just a legal fiction. Why not 100% in this case? Ever seen a trailer park in South Boston? Or in Cambridge?]

- The Planning Board rather than the Zoning Board of Appeals (ZBAs) would be given responsibility for reviewing and approving Chapter 40B applications.

[The Planning Boards are the bodies whose chartered responsibilities are undermined and emasculated by the law. But this "reform" is truly rearranging the deck chairs. The features of the law that let developers favored by the state ignore the community vision of local residents and their elected boards persist untouched by this "reform".]

- 75% of assisted living units, requiring an entrance deposit and a monthly fee, would be considered as rental housing. (It is very unclear what the meaning and impact of this amendment is).

[Again, why 75%? It has nothing to do with affordability. This is one more step away from actually achieving the stated purpose of 40B, but it is no step away from the intrusive high-handedness of the law.]

- The Planning Boards would have the authority to "choose among multiple applicants which comprehensive permits will be accepted."

[Sounds like empowerment. But in reality, most landowners are going to narrow the field to work with one developer well before the permitting process.]

- If a city or town accepts a zoning change requested by a developer, the developer may not seek a 40B approval for one year following the zoning change.

[This "reform" actually threatens the SmartGrowth ideal of towns adopting new zoning practices to promote affordable housing within the statutes and procedures of local government. For example, no developer would want to collaborate on a Housing Overlay district if it meant losing their eligibility to apply for 40B.]

In summary, the fundamental problem with 40B is that it is simply not possible to reform it legislatively in ways that address the roots of its biggest problems. The problems are a result of the underlying natural tendency for statutory intervention in market processes to favor the voters and donors who matter most to the legislative leadership. No leadership will reform the law unless the "reforms" do not fix that underlying issue. Eminent domain is one tool. Repeal should be another.


Blogger stoneman said...

I am on a "citizens Committee" trying to tone down a proposed 60 (formerly 90) unit in Chelmsford.
The town wants it and we dont.
60 units on four acres? next to a certified vernal pool? (100').
We have had Sen Susan Fargo out here, and her office has been very supportive. Recently we hear a 50% trailer park "exemption" has been proposed, but what does that mean?

9:13 PM  
Blogger stoneman said...

Post a Comment On: antivenom "The Atrocity of 40B"
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stoneman said...
I am on a "citizens Committee" trying to tone down a proposed 60 (formerly 90) unit in Chelmsford.
The town wants it and we dont.
60 units on four acres? next to a certified vernal pool? (100').
We have had Sen Susan Fargo out here, and her office has been very supportive. Recently we hear a 50% trailer park "exemption" has been proposed, but what does that mean?

9:14 PM  

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