GREGORY VASIL
Repeal a ‘huge mistake’
Housing advocates, builders and Realtors are gearing up to fight an effort to repeal the state’s controversial affordable housing law.
Proponents of an initiative petition to strike four sections of Chapter 40B, the so-called anti-snob zoning law, have apparently collected enough signatures to place the question on next year’s ballot.
“They appear to be on the way” to having enough signatures, Brian McNiff, spokesman for the secretary of state’s office, told Banker & Tradesman last week. But the final count won’t be known until later this week. Proponents must submit signatures to elections division at the secretary of state’s office by Wednesday.
Fred Marcks, a public policy consultant who lives in Chelmsford, said signatures came from 268 Bay State communities. More than 1,000 signatures were collected in Arlington, Billerica, Boston, Braintree, Brockton, Chelmsford, Chicopee, Hanover, Lynn, New Bedford, Pepperell, Springfield, Weymouth and Worcester, according to Marcks.
Supporters of the petition had to give the signatures to city and town clerks by Nov. 21. The communities have until to today to verify that the signatures belong to registered voters.
Developers and affordable housing activists, who credit Chapter 40B with creating thousands of homes for lower income families, are troubled by the initiative.
“We’re very concerned about the potential repeal because it would effectively shut down new affordable housing production in Massachusetts for working families and seniors,” said Aaron Gornstein, executive director of the Citizens’ Housing and Planning Association, a statewide housing group.
Chapter 40B has been used by developers to build mixed-income housing in communities where less than 10 percent of the housing stock is affordable. Developers with comprehensive permits must set aside at least 20 percent of the units they’re building for lower-income households. About 26,000 affordable homes have been built under the law, according to CHAPA.
However, critics say the law has been abused by developers and has stripped away local control for growth and development.
If passed, the measure wouldn’t block Chapter 40B developers who already have obtained building permits. But it would hinder developers who have 40B permits but haven’t yet received local building permits.
“We never would have attempted this if we didn’t have a sense that the potential is there” to improve the law, said John Belskis, founder of the Coalition to Reform 40B. “Our original intent was to reform the law, and three [legislative] sessions did nothing to reform the law to make it acceptable.”
‘Major Threat’
Leaders of CHAPA, the Home Builders Association of Massachusetts, local Realtor groups, nonprofit developers and others have been meeting to discuss possible strategies to defeat the initiative petition.
“For the homebuilders’ association, this initiative petition represents a major threat to residential construction in Massachusetts. If this effort was successful it would be a catastrophe for production and not just affordable housing production,” said Benjamin Fierro, general counsel for the state’s homebuilders group.
The homebuilders association has been exploring various options, including challenging signatures, appealing Attorney General Martha Coakley’s decision in September to certify the petition, and lobbying legislators, according to Fierro.
The Real Estate Bar Association was among the groups that urged Coakley reject the petition earlier this year. REBA argues that the proposed legislation is unconstitutional because it takes away a property right without compensation. In this case, the property right would be a comprehensive permit that a developer has received but can’t use.
“We’re discussing whether or not another challenge might be made at some time in the future,” said Theodore Regnante, a REBA member who represents developers.
Regnante said REBA members have talked to legislators and informed them that they can seek the Supreme Judicial Court’s opinion as to whether proposed legislation is constitutional.
Supporters of the petition must collect at least 66,593 signatures, which represents 3 percent of the vote in the last gubernatorial election, according to McNiff.
Once they are submitted to the secretary of state’s office, opponents have until Jan. 4 to file objections to any of the signature. The objections are heard by the ballot law commission, which has until Jan. 25 to render a decision.
If there are sufficient signatures, the secretary of state’s office has to advance the petition to the House of Representatives clerk on Jan. 2. The legislature has until May 7 to act, but if lawmakers don’t take action or defeat it, supporters can collect another 11,099 signature to get the question on the ballot, explained McNiff.
Fierro said if the supporters submit a significant number of signatures beyond those required it would be difficult to mount a challenge. Chapter 40B supporters acknowledged that it will be a costly battle if the petition is successful.
“Any challenge to the petition at any stage is very expensive, so marshalling resources, particularly in this time of housing recession, is not going to be easy,” said Fierro, a partner at Boston-based Lynch & Fierro.
Gregory Vasil, chief executive officer of the Greater Boston Real Estate Board, said Chapter 40B supporters are “still very much in the formative stages of coming up with” a strategy.
“All the organizations are taking a good, long, hard look at this and sort of evaluating it and studying it and looking at every aspect of the question,” he said. “If there ever was a step in the wrong direction toward housing production and affordable housing production it would be to repeal 40B. That would be a huge mistake.”
David Wluka, a Sharon Realtor, said if communities plan for affordable housing and meet state-set goals, they don’t have to worry about Chapter 40B.
“What makes me really concerned about this is that these people are railing against a law that nationally is seen as one of the best practices for getting affordable housing built,” he said.
The effort comes at a time when state leaders are trying to amend the law. In November, the state Department of Housing and Community Development unveiled proposed regulatory changes to the law. The state agency is calling for common design standards for Chapter 40B projects and wants one set of standards for how funding agencies review and approve projects.
DHCD also has proposed that communities that have a plan to increase their affordable housing stock by half a percent a year have the option of rejecting Chapter 40B projects. The agency also wants to require local zoning boards to wrap up the hearing and review process for a comprehensive permit application within 180 days.
The agency has scheduled a hearing on the proposed changes for Dec. 11.
