Back To Listing

40B guidelines

SEB’s 40B Draft Guideline Comments

III. Affirmative Fair Housing Marketing and Resident Selection

C. Local Preference (pg 6)

This was discussed at the meeting and I’m sure you will get more detailed comments than this, but if the “comprehensive permit shall not contain any requirements or conditions relating to local preferences,” even if the local preference condition is pursuant to the 40b guidelines, then I don’t understand how local preference will ever be implemented because the comp permit is the only document that would require or request it.

D. Household Size/Larger Household Preference (pg 9)

I think the language in this section needs to be further clarified as MassHousing currently interprets the line “There is at least once occupant per bedroom” to mean that under no circumstances can a 2BR unit be leased to a 1 person household. Even if a lottery has been run and marketing has been done for 6 months after the lottery and there are 2BR units vacant, MassHousing insists that a 1 person household cannot lease the 2BR unit. For whatever reason, they will allow “a husband and wife, or those in a similar living arrangement” to lease a 2BR unit. They also allow a 2 person household to lease a 3BR unit. I understand it is not DHCD’s responsibility to dictate how MassHousing interprets these guidelines for the NEF Program, but further clarification here might prevent further misinterpretation.

E. Lotteries and Application Process, Lottery Procedure (Pg. 11)

It states that “the lottery administrator should retain a list of households who are not awarded a unit, in the order that they were drawn from the general (non-local) pool.”

This implies that once all units have been occupied, the local preference list dissolves. Is that indeed the case? Granted, the large majority of the time both lottery lists are exhausted before all units have been occupied, but for developments that have few affordable units, there may still be a local list and a general list after the all units have been awarded.

E. Lotteries and Application Process, Opening Waiting Lists or Remarketing… (Pg. 11)

I think the essentials in this section are the following:
(1) If a property’s Waiting List is open, they should be doing some sort of affirmative marketing.
(2) If a property’s Waiting List is closed, they do not have to market.
(3) When a property opens their Waiting List, there must be a specific process in place to ensure that the Waiting List isn’t populated on a first-come, first-served basis.

To think about the language that should be drafted, I think it’s important to think how it might apply to two different developments: Development A with 8 affordable rental units and Development B with 60 affordable rental units.

Development A

Assume Development A’s 8 units lease up at the lottery or within a few months after the lottery. Here are some questions:

• Even though they are leased up, should they still be obligated to affirmatively market until their Waiting List is sufficiently populated and closed?
• What would be considered a sufficiently populated Waiting List for a small 8 unit development who would not know their rate of turnover within the first year of operating?
• If the affordable rents in this development are not that much less than the market rate rents and as such, they never receive much interest for them, will they have to perpetually affirmatively market their affordable units because they cannot achieve sufficient Waiting List numbers? If so, how frequently must they market? Quarterly, semi-annually?
• Assume the market changes and they finally hit the minimum threshold and close the waiting list. They then have vacancies and deplete the Waiting List so it is under the required threshold. They open the waiting list, market again and hold all the applicants to the side for 20 days. After 20 days, they add the applicants randomly to the Waiting List. However, they only receive 4 applications so they are still under the minimum threshold. Do they have to market immediately again, or at that point can they add applicants on a first-come, first served basis until they reach the minimum threshold as long as they continue to market every few months or quarterly?