FRANK M. HYNES
‘Fairly disappointed’

Regulations proposed by Massachusetts officials to alleviate some of the tension between communities and developers over the state’s affordable housing law would strip control from cities and towns, according to some critics.

But homebuilders argue that the regulations, which were crafted by the Department of Housing and Community Development, give too much power to communities.

“Taking DHCD at its word that this was an effort to restore balance, I have to respectfully say that they missed the mark. These regulations push things further in the wrong direction rather than moving things back to the center,” said Jason Talerman, an attorney with Blatman, Bobrowksi & Mead who represents communities.

Talerman was one of several people who testified at a hearing last Tuesday on the proposed changes to Chapter 40B, the so-called anti-snob zoning law. Under Chapter 40B, developers can seek comprehensive permits through local zoning boards to build mixed-income housing in communities where less than 10 percent of the housing is affordable. Developers with comprehensive permits must set aside at least 20 percent of the units for lower-income households.

Local officials have complained for years that developers are misusing the law, making huge profits and producing housing that burdens local services and doesn’t fit into communities. Developers typically sign agreements with financing agencies to limit profits to 20 percent.

In written comments, the Massachusetts Municipal Association said the proposed changes are a “step backward” and won’t help curb developer abuses. The group has urged DHCD to codify rules on developers’ profit limitations and wants local officials to have more involvement in reviewing developers’ financial statements and audits.

“We are concerned that, on balance, these proposed regulations appear to reflect a general distrust of municipalities, and given the many new benefits to developers, the regulations indicate that the department is addressing the concerns of for-profit developers, and not giving adequate attention to the very legitimate and urgent concerns of local government,” wrote MMA Executive Director Geoffrey C. Beckwith.

DHCD is calling for common design standards for Chapter 40B developments and consistent standards for how funding agencies review and approve projects. The agency also wants local zoning boards to complete the hearing and review process on 40B comprehensive permit application in six months.

Some elected officials said six months isn’t enough for communities to review proposals.

“I feel that in some cases that’s doable but in many cases it’s not doable. And it’s not doable sometimes because the developer is less than forthcoming in presenting the necessary documents that a [zoning board of appeals] needs to have in order to make an informed judgment on a particular proposal,” said Rep. Frank M. Hynes, D-Marshfield.

He added, “In some of our smaller, suburban rural communities, people who volunteer for these positions can’t drop everything, particularly if there are several proposals before them almost simultaneously.”

The regulations would prevent zoning boards from “scrutinizing” matters that are controlled by agencies that provide financing for projects and take away communities’ authority to enforce affordability restrictions in developments, according to MMA.

DHCD also wants to enable developers to proceed with projects at their own risk if a community or abutter challenges a permit approval. Another regulatory change would allow local boards to delay hearing a proposal if three Chapter 40B projects already are pending in the community.

While DHCD maintains that the regulations are aimed at eliminating some of the friction that occurs between towns and developers, Hynes and others said they fall short.

“I had hoped that these regulations would have gone far, or at least taken a major step, in reducing some of the tensions between communities and affordable housing needs, and I don’t see that they do that. So I must say that I’m fairly disappointed,” Hynes said.

Intense Scrutiny

DHCD has proposed that communities with a state-approved housing plan, which can show they’ve boosted their affordable housing stock by half a percent in the prior year, get a one-year break from 40B projects. Those that have increased it by 1 percent would get a two-year reprieve. Currently, communities that have increased their affordable housing stock by three-quarters of a percent or 1.5 percent, respectively, can deny projects for those periods of time.

Builders oppose loosening those thresholds and say the changes would hurt housing production.

“We understand that the department has sought to balance the state’s interest in affordable housing production with the legitimate interest of local communities, but in our view, in too many instances, these regulations mistakenly grant greater municipal control over a state housing program,” said Benjamin Fierro, legal counsel for the Home Builders Association of Massachusetts.

Some housing advocates, however, praised the state for making an effort to address communities’ concerns about the law.

“We believe the new regulations balance the statewide need for affordable housing with the desire for local communities to have more control over some of the issues,” said Aaron Gornstein, executive director of the Boston-based Citizens’ Housing and Planning Association.

The law has come under intense scrutiny over the last year as the state’s inspector general launched an investigation of projects in 11 communities. Inspector General Gregory Sullivan’s audits found that some developers concealed profits that should have been returned to communities and overstated costs. He has called for better oversight of project audits.

“I’ve asked the administration to provide something that has been lacking in Chapter 40B: adult supervision. It should be brought under DHCD’s control. I know that Gov. Patrick and the administration are committed to trying to fix Chapter 40B,” Sullivan said.

Sullivan also said rules limiting profits that developers can make should be “spelled out in black and white for all to see.”

“The excess profits taken by developers under Chapter 40B represent financially one of the biggest financial abuses in state history,” he noted. “Now is the time to bring that sorry chapter to a close.”