Affordable Housing Law Bulldozes Rights, Environment

Affordable housing need not promote sprawl, and environmental protection does not preclude affordable housing. Yet these two altruistic interests are pitted against each other because, say its critics, Massachusetts’ affordable housing law (“40B”) presumes that local efforts to preserve open space, clean water, and natural habitats are merely guises used by suburban municipalities to avoid building affordable housing. Environmentalists and land use planners contend that 40B promotes sprawl by encouraging uncontrolled, unplanned development in environmentally valuable areas.

At the recent Boston College Environmental Affairs Law Review symposium, “Twists in the Path from Mount Laurel: Affordable Housing v. Environmental Protection,” academics and practitioners compared 40B to affordable housing regulations in New Jersey, California, and Oregon. Two main issues were highlighted: the effectiveness of various programs in providing affordable housing and the costs of doing so. Massachusetts’ 40B program drew sharp criticism from environmental and housing advocates alike because it fails to provide sufficient housing, benefits developers at the expense of local taxpayers, and subsidizes sprawl.

A Broken Premise
The premise behind affordable housing programs is that all communities should provide sufficient housing to support their own needs and to enable the urban poor to move to the suburbs. Massachusetts uses a “stick” to force municipalities to meet a 10 percent affordable housing inventory or be vulnerable to a collateral attack by any developer who sets aside 25 percent of a development project for affordable housing units. Under 40B, if the local board denies or places conditions on its approval of such a project, the developer can appeal to the State’s Housing Appeals Committee (HAC). HAC can “modify or remove any . . .condition or requirement” deemed “uneconomic.” This includes limits on the number of units built, buffer requirements for wetlands or water sources, or any other condition required by local bylaws that reduces the developer’s net profit below 10 percent. Thus, the developer gets the “carrot” in the form of a guaranteed profit

. Land use law scholar Daniel K. Mandelker of Washington University School of Law in Missouri has come to “question some of the conventional wisdom” behind programs like 40B because adequate housing is simply not being provided where, and for whom, it is actually needed. First, affordability is relative. Based on medianincome levels, 40B’s “affordable” housing units in many communities are beyond the means of low-income families. Second, 40B subsidizes sprawl because it allows developers to dictate the location of developments, often at the outskirts of outerring suburban towns, forcing these communities to extend infrastructure and services to wherever a developer decides to build. Meanwhile, urban communities, with infrastructure, public transportation, employment opportunities, and social and business services already in place, are largely ignored.

Further, critics assert that 40B is neither cost effective nor fair. The profit guarantee allows developers to build on normally unprofitable sites simply by adding the number of units necessary to make the project “economic.” The developer reaps the profit while local taxpayers bear the cost of providing services. In return, the community’s affordable housing inventory increases by only one unit for every four market-rate units it must support. The further irony is that as local property taxes rise to support these new developments, life-long residents with moderate or fixed incomes find themselves struggling to keep their own homes.

Looking for Solutions
Better models do exist. Robert Liberty, executive director of the nonprofit organization 1000 Friends of Oregon, explained how Oregon includes affordable housing as one of nineteen statewide planning goals that each municipality must include in its comprehensive land use plan. These plans balance environmental elements, such as farmland preservation and water resource protection, with economic development and urban growth centers. Oregon also follows a high-density planning model that centers development around an urban core, thereby dramatically reducing the sprawl effect.

As Jon Witten, a BC Law adjunct professor, explained, most of the country follows the “planned state” model of land use planning that requires all zoning and bylaw decisions to be tied to a “master plan.” These plans are guided (or mandated) by regional or statewide planning goals. Developers and communities alike know what to expect and can prepare accordingly. Equitable and effective planning needs to consider all factors: affordable housing, environmental, and economic development, as well as the interests of those who live in the affected communities.

Jo Lown ’03 was managing editor of the Boston College Environmental Affairs Law Review before graduating.

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