Massachusetts Inspector General Greg Sullivan last week chose to demonize the commonwealth’s development community over alleged lapses in the state’s affordable housing law. But his comments at a press conference on the issue don’t necessarily jibe with the results of a state Senate report that was the basis for the diatribe.

For 40 years now, Massachusetts has administered a well-intentioned affordable housing program, the eponymous Chapter 40B of Massachusetts’ General Laws. Overseen by the state Department of Housing and Community Development, the law allows developers to override exclusionary zoning practices if at least 25 percent of the units are “affordable.” Over those decades, more than 48,000 units in almost 900 developments have been constructed under the law, with 26,000 of those units designated for people whose household income is below 80 percent of the median for their locality.

That sounds like an initiative that has brought great benefit to tens of thousands of people. To Sullivan, however, “Chapter 40B represents one of the biggest scandals in state history. What started out in the late ’60s as a well intended public-private housing program has turned into a license for abuse and profiteering.”

Sullivan based his attack on developers on a conclusion in the Senate Post Audit and Oversight Committee report that developer profits were “routinely understated,” and thus put too much money into the hands of the real estate community and not enough into the hands of communities.

Under the law, developers are limited to a profit margin of no more than 20 percent, and that number is subject to review under a “cost certification” process. What costs are included – or excluded – to determine a final profit number is subject to interpretation by parties on both sides of a deal, as most business leaders will readily admit. Disputes over what constitutes final profit are legitimate areas for discussion and negotiation, not an immediate sentence of profiteering.

The Inspector General warns of the failings of the cost certification process as leading to rampant abuse. In a database of some 1,118 projects that are in some stage under the 40B program, 135 have submitted cost certifications. The Inspector General wants the public to be shocked at that number, which seems terribly low. But the Senate report admits that “most of these (approximately 725 projects) have not reached the stage at which they would be required to submit cost certifications.” Another 107 projects didn’t proceed to construction – or were undertaken by nonprofit organizations – so aren’t required to submit. That leaves 151 projects that are “potentially ‘out of compliance’” with the law, because they should have submitted, but haven’t yet done so.

Since the 135 that did submit have been subject to public scrutiny, it is only the 151 outstanding projects that are questionable. And there is little indication that all of them have failed the public good by being a trough for greedy developers.

There are few government programs – especially those involving large sums of money – where one cannot find some level of problems. We aren’t blind to that. But the numbers hardly seem to add up to the kind of broad-stroke condemnation that the Inspector General is wielding.

Perhaps the language is so inflammatory because there’s a political game to be won. The Inspector General and the state Senate seem to want to knock down developers’ profit threshold from 20 percent to a range of 15 percent to 20 percent. That’s more easily accomplished if private developers are depicted as corrupt money hoarders. But try telling that to the many thousands of families who can thank the development community for the affordable home they’re living in.

 

40B Bashing

by Banker & Tradesman time to read: 3 min
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