Legislature must thwart efforts to chip away at housing law

After Massachusetts voters overwhelmingly rejected a 2010 effort to repeal the state’s affordable housing law, the Legislature should have gotten the message. The law may still be unpopular in some tonier suburbs, but the repeal campaign failed by 16 percentage points. The majority of voters recognized that the law provides a last-ditch mechanism to ensure that affordable housing can be built across the Commonwealth, including in towns that do everything in their power to keep out newcomers. Now, however, a trio of state lawmakers is trying to chip away at the law with provisions that would dilute its effectiveness. The Legislature should respect the will of voters — and the economic needs of the state — and reject these efforts to weaken the law.

The legislators — state Senator Michael F. Rush of West Roxbury, state Representative John H. Rogers of Norwood, and state Senator Brian A. Joyce of Milton — inserted language into a housing bond bill making its way through the Legislature that would whittle down the housing law, known as Chapter 40b. Joyce’s provision would have a limited impact; it changes the rules so that a specific development in his district would be counted as affordable, thus potentially reducing Milton’s exposure to future affordable-housing developments. The amendments backed by Rogers and Rush, however, could have a much greater impact, giving municipalities across the entire state a powerful new way to thwart the law.

Chapter 40b, on the books since 1969, works by allowing real-estate developers to circumvent local zoning restrictions when towns don’t already have enough affordable housing stock. It kicks in when fewer than 10 percent of units in a town are deemed affordable. How the state calculates that percentage is crucial, and Joyce’s amendment would allow one kind of retirement-housing development, in which tenants pay a large upfront fee to move in, to count toward the requirement. While language added to the bill would effectively limit the provision’s reach to just one Milton development, it could open the door to categorizing more types of senior housing as affordable. Some of those communities may charge entry fees of $100,000 or more, and the state shouldn’t rush into counting them without an analysis of whether they truly qualify as affordable.


The amendments by Rogers and Rush, however, threaten much more sweeping damage. In an effort to stymie one particular 296-unit affordable housing development in Norwell, their provisions would allow communities that have granted certain commercial tax breaks to properties the ability to protect those parcels from Chapter 40b developments — and possibly more in the future. The predictable result would be for towns to rush to grant tax breaks — whether or not they have any commercial developer lined up to use them — simply as a way to inoculate themselves against future Chapter 40b developments.

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Together, the two amendments would make housing development — a crucial economic issue in Massachusetts — that much harder. It would also set a dangerous precedent: Once lawmakers start changing the housing law just to torpedo individual projects, there is no telling where they’ll stop. The affordable-housing law could die by a thousand legislative cuts.

As the House and Senate reconcile their bond bills, they should reject the Rogers and Rush amendments and remove Joyce’s provision. If they don’t, Governor Patrick should veto any legislation that includes them. Meanwhile, towns that object to Chapter 40b should be encouraged to use the tool that’s been available to them from the start: Ensure there’s enough affordable housing within their borders, and they will have nothing to worry about.