What your vote does, according to “Massachusetts Information for Voters 2010 Ballot Questions” published by Secretary of the Commonwealth William Francis Galvin:

A YES VOTE would repeal the state law allowing the issuance of a single comprehensive permit to build housing that includes low- or moderate- income units.
A NO VOTE would make no change in the state law allowing issuance of such a comprehensive permit.

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In less than a week the Commonwealth of Massachusetts will be voting to repeal or not to repeal the comprehensive permit law, the second of three referendums on the midterm ballot. The comprehensive permit law, also known as 40B, enacted in 1969 provides an alternative zoning approval process for select housing developments.

Mass. law allows a qualified organization wishing to build government-subsidized housing that includes low to moderate income units to apply for a single comprehensive permit from a city or town’s zoning board of appeals (ZBA), instead of separate permits from each local agency or official having jurisdiction over any aspect of the proposed housing.

Under the existing law, the ZBA holds a public hearing on the application and considers the recommendations of local agencies and officials. The ZBA may grant a comprehensive permit that may include conditions or requirements concerning the height, size, shape or building materials of the housing.

If a person is aggrieved by the ZBA’s decision to grant a permit, the applicant may appeal to the state Housing Appeals Committee (HAC). Two things the HAC considers are whether the permit is consistent with local needs and if the permit is economically sound.

If the HAC rules that the ZBA’s action was consistent with local needs such as protecting public health and promoting better site and building design. The HAC must uphold it even if the decision creates a difficult economic situation.

According to the Town of Amherst website, the zoning board of appeals is a quasi-judicial body that operates under the authority of Chapter 40A of the General Laws of the Commonwealth. The board’s stated purpose is to promote the health, safety, convenience and general welfare of the inhabitants of the Town of Amherst.

A study published in 2000 by the the University of Massacusetts Donahue Institute titled “Economic Contributions of Housing Permitted through Chapter 40B,” found that 21,861 new housing units have been built as a result of Chapter 40B permitting, including 8,140 affordable housing units. These include both homeownership and rental developments serving seniors, families and people with disabilities who have a wide range of incomes.

A provision in the comprehensive permit law states 10 percent of all developments in cities and towns must be zoned for affordable housing. The law has been considered controversial because a rural town in the Berkshires is demographically different than a suburb of Boston.

State Senator Stanley Rosenberg, Democrat representing the Hampshire-Franklin District is opposed to repealing 40B.

“40B is roughly a 40-year-old law,” Rosenberg said in a phone interview. “It has done a lot of good, but it has flaws that need to be fixed.”

Rosenberg highlighted the fact that very few states have done a better job than Massachusetts at creating affordable housing.

Rosenberg is fearful that if the law is repealed the Commonwealth will no longer promote affordable housing developments.

“The law has fundamental problems, but the idea of it is sound,” said Rosenberg.

The proponents of repealing 40B seem less optimistic the law can actually be fixed if not revoked on November 2. Affordable Housing Now, a group of supporters who advocate for real affordable housing, feel as though 40B is nothing more than a tool being used by developers to extract huge profits at the expense of the community.

A story published in the Boston Globe in 2007 exemplifies a major concern of elected officials and citizens living in communities who are subject to huge affordable housing developments. The article by Christine McConville illustrates that affordable housing properties, like the one in Billerica, Massachusetts, make huge profits for developers, as they are bought and sold to different developers more than once before completion, at the taxpayers’ expense.

The Villas in Billerica, Massachusetts were bought and sold by developer David Veo. Veo received a comprehensive permit to build 180 apartments under Chapter 40B on the parcel that had cost him about $800,000 to assemble, according to state records. McConville writes, “Six days later, he sold the land and permit for $5.4 million.”

This is a concept known as “profiteering,” something State Inspector General Gregory Sullivan concluded of developers of 40B housing developments after investigation. McConville emphasizes Sullivan’s feelings of this practice being an abuse of the 40B law.

“The original developer would pay a certain sum for a piece of land, then obtain the 40B permit” writes McConville. “That developer sells the permitted land at a significant markup to a second developer, who then uses the marked up price in calculating the project costs.”

State Senator Michael Knapik, Republican representing the Second Hampden and Hampshire District notes serious abuses of 40B in communities and towns across the Commonwealth.

“Eliminating 40B is not the most prudent course of action,” Knapik said in a phone interview. His arguments for keeping 40B intact echo those of Rosenberg’s. Additionally, Knapik addresses the fact that there become too many demands on infrastructure and resources in communities when local zoning laws are circumvented, another reason for reform of 40B.

A yes vote would repeal the state law allowing the issuance of a single comprehensive permit to build housing that includes low to moderate income units. A no vote would leave the law unchanged, allowing issuance of such a comprehensive permit.

Katie Byrne can be reached at [email protected].