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Editorial: Law on affordable housing needs another look

Sunderland recently lost a six-year legal fight to stop construction of a 150-unit apartment complex on Plumtree Road called Sugarbush Meadow when the state’s Supreme Judicial Court ruled in favor of the developer. But in the midst of the wrangling, a valid challenge to a controversial state law was presented.

Must the state or federal government subsidize housing to justify its classification as affordable? The state thinks so. Sunderland does not.

Halting the project was a long shot. That’s because Chapter 40B puts some housing developments on the fast tack by overriding local bylaws, permit processes and zoning restrictions if a community is deemed deficient in the supply of affordable housing.

Affordable housing, as defined by the state, is any low- to moderate-income housing subsidized by the federal or state government. A quarter of Sugarbush Meadow’s units are slated to be affordable. For a developer to qualify for Chapter 40B, at least 20 percent of the new project’s units must be sold or rented at an affordable price and stay affordable long-term. Also, the host community has to be in need of more affordable housing, which means less than 10 percent of its existing housing stock is judged to be affordable.

According to state records and state criteria, 0.4 percent of Sunderland’s housing is affordable.

But that’s not how town officials see it. Sunderland officials argued, in essence, that just because they have little housing that officially qualifies as affordable, that doesn’t mean there is a lack of housing at those prices.

This argument deserves some consideration. We have long supported efforts to increase the supply of affordable housing in the Valley. But in light of the Sunderland case, we think a deeper analysis of what should be termed affordable, under the law, should take place, with legislators leading the way. It seems unfair to us to sidestep a town’s zoning approval process if, in fact, it has a decent inventory of affordable — though unsubsidized — housing.

Since 1969, Chapter 40B, the Comprehensive Permit Act, has added more than 60,000 units in almost 1,200 developments to the commonwealth, according to a 2011 Citizens Housing and Planning Association report. More than half of these units are reserved for households with incomes below 80 percent of the area median. Yet Massachusetts is still counted in the top 10 most expensive states to live in the U.S.

There is support for Chapter 40B. In 2010, voters rejected a ballot measure to repeal the act. And over time, the law has been modified. Now it may be time again.

Aside from the matter of what should qualify as affordable housing, the Massachusetts inspector general has identified troubling trends in how the law is applied. In a July letter to the Department of Housing and Community Development, the inspector general claimed “pervasive abuse” of the program by developers who take in a higher profit on construction than allowed under the act. The inspector general also found that affordable housing units were rented by people who don’t meet low-income requirements. The letter noted that these were not new issues and blamed lax oversight by the state and subsidizing agencies and a lack of independence and skepticism on the part of auditors for not catching abuses.

State legislators need to take yet another look at Chapter 40B to make sure tax dollars aren’t being used to secure housing in a community that may already be affordable. While they’re at it, they should figure out why the inspector general has been making the same Chapter 40B fraud complaints since 2006 without result.

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