JEFF RHUDA
Predicts ‘restrictions’

Four days before a task force charged with making recommendations to change one of the state’s most controversial housing laws has to submit its report to Gov. Mitt Romney, the group appears to have reached agreement on several points, including a measure that would make it easier for communities to reject housing proposals if they’re faced with multiple proposals at one time.

But the 24-member committee, which plans to meet tomorrow, still has several issues to iron out about Chapter 40B, the state’s so-called anti-snob zoning law, before it submits a final report to Romney this Friday.

Romney, who established the committee in February, asked legislators to temporarily hold off deciding on nearly 70 bills that were filed regarding Chapter 40B. He plans to unveil the task force report June 6.

The 34-year-old law, which allows developers to apply for a comprehensive permit and go through an expedited permitting process in towns and cities where less than 10 percent of the housing stock is affordable to low- and moderate-income households as long as 25 percent of the units they’re proposing to build are affordable, has sparked controversy in many communities that feel developers are abusing the law and overburdening local services with excessive growth.

A draft of the group’s recommendations, which was discussed at a meeting last Tuesday, shows there are several suggestions the committee is considering to help address those concerns, including:

• Limiting the number of Chapter 40B projects a community must review at any one time. That would essentially enable communities to reject a comprehensive permit application if three applications have been filed within the preceding nine months.

• Giving additional school aid to communities that have produced more affordable housing. The committee is considering asking that a “growth aid fund” be established “for the incremental schools costs of educating additional children associated” with the creation of affordable housing. The additional aid would be distributed over 10 years.

• Giving communities a “break” from comprehensive permit applications if they’ve increased their affordable housing by a certain percentage in a given period. Task force members are considering allowing communities to reject permits for one year, or longer, if they’ve planned for and increased their housing by 0.5 percent a year.

• Setting density guidelines for Chapter 40B rental and homeownership developments that would encourage smart growth. The committee would like to encourage funding agencies to consider a general guideline used by the state for homeownership development – 8 units per acre – before issuing site approval. The 8-unit per acre would be only a guideline, not a hard cap.

The task force is also considering at least two measures that generated a lot of debate at last week’s meeting: allowing communities to get more credit for units in Chapter 40B developments built for homeowners and to get credit for affordable housing units that are not built within their borders.

Aaron Gornstein, CHAPA’s executive director, said members of the advocacy group are very concerned about the “regional sharing” suggestion to give towns and cities a chance to count affordable units that are not located within their communities.

At last week’s meeting, task force members couldn’t agree on the particulars of this recommendation, which would allow some communities to take credit for affordable housing units built in nearby towns if they agreed to share infrastructure, school space and other costs. For example, if a town allowed a bordering town to tie into one of its sewer lines to service homes in a Chapter 40B development, the town could count a portion of the units toward its affordable housing stock.

The proposal was introduced as a way to encourage regional planning among communities, but some members said they were uncomfortable with the idea of wealthier communities shirking the responsibility of having to produce housing for low- and moderate-income people.

“We don’t want communities to be able to buy their way out of their affordable housing obligations,” said Gornstein.

However, Gornstein added, “We’re reserving opinion on all this until we see the total package of recommendations. You have to look at the cumulative effect that all the changes will have on the 40B program. Until we know what all the final recommendations are, it’s difficult to have a firm opinion on any one of these recommendations.”

Particularly critical of the regional sharing suggestion was task force member Sen. Dianne Wilkerson, D-Boston, who questioned how this proposal would actually increase the state’s affordable housing production. “I want to know that it will have the impact intended,” she said.

Steven Dubuque, a task force member who is president of the Massachusetts Non-Profit Housing Association, also expressed some reservations, saying that the goal is to promote smart growth and regional planning. Dubuque said he didn’t want “affordable housing to be viewed as nuclear waste” that a community could pay to have it “buried some place else.”

While the task force recommendations are meant to address communities’ concerns and at the same time not hurt affordable housing production, one member thinks that more building restrictions are inevitable.

“There is no question in my mind that these regulations are going to further restrict – they have to. They’re regulations and the pure definition of regulations tells you … there’s going to be further restriction on housing,” said Jeff Rhuda, a Beverly developer who serves on the task force. “But it should be superior to the 68 bills that were filed and that are in the Legislature right now.”

Rewarding Experience

Task force members also disagreed on a proposal that would change the way homeownership units in Chapter 40B developments are counted toward a community’s affordable housing stock. The suggestion – floated by Rep. Harriett L. Stanley, D-West Newbury – would allow all homeownership units in Chapter 40B developments, including market-rate units, to be counted toward a town’s affordable housing inventory.

Currently, only the affordable units – which in most cases means 25 percent of the entire project – in homeownership developments built under the comprehensive permitting process are counted in a community’s affordable housing stock. In contrast, all of the units in rental developments are counted, including the market-rate units.

Some task force members have argued that homeownership units have a greater impact on local services – particularly schools – than rental developments and therefore towns should get more credit for homeownership units than they currently receive.

If Stanley’s proposal were approved, it would immediately boost several communities’ affordable housing inventories over the 10 percent goal set by the state. Today, there are only 33 communities where more than 10 percent the total housing is considered affordable.

Under the current formula, if a town has 1,000 housing units and a 100-unit Chapter 40B development is approved with 25 percent affordability, the town would only have 2.27 percent affordability and would need to build an additional 666 units to get to 10 percent.

Under the same scenario with Stanley’s proposal to count all units, a community would have 9 percent affordability after the 100-unit development is approved and would only need to build 110 more units to reach the 10 percent goal.

Stanley suggested at least week’s meeting that several bills that were filed to count other types of units, like mobile homes, as part of community’s affordable housing inventory, might be dropped if the committee accepted this recommendation.

“I don’t think this will cut down on production,” said Stanley

But some members disagreed, arguing it would cut into housing production and possibly hurt the creation of rental housing.

“We’re rewarding communities for doing nothing,” said Rhuda.

The state has allowed to communities to count all units within a rental development created under Chapter 40B as an incentive to get towns and cities to approve multifamily rental housing development. Task force member Bill McLaughlin, president of the Rental Housing Association of the Greater Boston Real Estate Board and a regional vice president for apartment developer AvalonBay Communities, said the incentive would diminish if communities could treat homeownership developments the same way.

“That’s the only advantage that I have [as a rental developer],” said McLaughlin, adding he would “never get a foot in the door” without the ability to count all the rental units in a development toward a community’s affordable housing goal.

The committee is considering more moderate versions of this proposal. One, introduced by the Citizens Housing and Planning Association, would allow a community’s total housing unit count to remain the same when Chapter 40B homeownership developments are built – making the proportion of affordable housing units higher in the end.

Another proposal suggested would allow the affordable units in a homeownership development to be counted twice.

In addition, the task force is considering recommending that a committee be set up to improve the appeals process that Chapter 40B developers go through. Some lawyers and developers complain that the lengthy appeals process causes confusion because, while developers are appealing to the Housing Appeals Committee, abutters of proposed developments can also file appeals in Land Court and Superior Court and often the findings from the two cases conflict. The task force wants to suggest that an ad hoc committee evaluate the current procedures followed by the Housing Appeals Committee and suggest regulatory changes to improve and expedite the process by Nov. 1.