The Commonwealth of Massachusetts has adopted material changes to state zoning laws designed to encourage housing development, and in some cases mixed-use development that includes housing. This Holland & Knight alert summarizes these key zoning amendments included in the economic development legislation – An Act Enabling Partnerships for Growth, Chapter 358 of the Acts of 2020 (the Act) – signed on Jan. 14, 2021, by Massachusetts Gov. Charlie Baker.
Though 350 cities and towns in Massachusetts control their own zoning through local ordinance or bylaw (the City of Boston has its own zoning enabling legislation), such local ordinances and bylaws must comply with the state Zoning Act, codified at Massachusetts General Laws Chapter 40A. Dubbed the Housing Choice Initiative, the Act has amended Chapter 40A in the areas described below, in an effort to combat barriers to housing production and assist cities and towns working to encourage housing development. The Massachusetts Executive Office of Housing and Economic Development (EOHED) has issued preliminary guidance interpreting these new provisions, available on its Housing Choice homepage. EOHED also plans to issue further guidance, and in cases of uncertainty, municipalities (but not private sector parties) may write to EOHED to request an advisory opinion.
Massachusetts law has historically required a two-thirds vote of the local city council or town meeting to adopt or change zoning ordinances or bylaws. This supermajority voting standard has been an impediment to adopting new zoning provisions or amending existing zoning laws deemed friendly to promoting or allowing housing development. The Act changes the voting standard from a two-thirds supermajority vote to a simple majority for a specific list of zoning provisions that facilitate housing production. Zoning ordinances, bylaws or amendments that can be enacted with a simple majority vote include those that: 1) allow as of right multifamily housing or mixed-use development in an eligible location, accessory dwelling units or open-space residential development; 2) allow by special permit multifamily housing or mixed-use development in an eligible location, an increase in the permissible population density or intensity of a particular use in a proposed multifamily or mixed-use development, accessory dwelling units or a reduction in the amount of parking required for residential or mixed-use developments; 3) provide for transfer of development rights (TDR) zoning or natural resource protection zoning where the adoption of such zoning promotes concentration of development but will not result in reduction in the municipality's overall maximum number of housing units, or otherwise modify regulations concerning bulk, height, lot area, yard size, open space, parking or building coverage requirements to allow for additional housing units; and 4) adopt a smart growth zoning district or starter home zoning district.
The Act also reduces the number of votes needed for a special permit granting authority to issue a special permit to a majority vote, rather than a supermajority vote, for certain types of special permits promoting multifamily housing and mixed-use development deemed transit-oriented. Special permits that now may be issued with only a simple majority vote include: 1) multifamily housing located within a half-mile of a commuter rail station, subway station, ferry terminal or bus station, provided not less than 10 percent of such housing will be affordable to and occupied by households with annual incomes less than 80 percent of area median income (AMI) as determined by the U.S. Department of Housing and Urban Development (HUD) and affordability is assured for at least 30 years with an affordable housing restriction; 2) mixed-use development in centers of commercial activity within a municipality, including towns and city centers and other commercial districts, provided not less than 10 percent of the housing will be affordable to and occupied by households with annual incomes less than 80 percent of AMI and affordability is assured for at least 30 years with an affordable housing restriction; and 3) reduced parking space-to-residential unit ratios so long as such reduction in the parking requirement will result in the production of additional housing units. The Act does not require special permit granting authorities to issue these special permits, but it makes it easier for such special permits to be approved, as they will now be approved by a simple majority vote.
In the 176 communities served by the Massachusetts Bay Transportation Authority (MBTA), the Act requires cities and town to adopt "by-right" multifamily zoning in "MBTA communities." Such communities are required to adopt a zoning ordinance or bylaw that allows for at least one multifamily district as of right, without age restrictions and suitable for families with children. These districts must have a minimum gross density of 15 units per acre and be located no more than a half-mile from a commuter rail station, subway, ferry or bus station, as applicable. An MBTA community failing to comply with this section becomes ineligible for certain state funds, including funds from the Housing Choice Initiative, Local Capital Projects Fund and MassWorks infrastructure program. The Commonwealth has issued guidance informing cities and towns in which the MBTA operates that it will allow them reasonable time to adopt such by-right zones before they seek to disqualify those cities and towns from state grants.
The Act expressly provides that contiguous cities and towns may enter into agreements to allocate public infrastructure costs, municipal service costs and local tax revenue associated with the development of an identified parcel or parcels or development within the contiguous communities generally. Such agreements are permitted by a majority vote of the legislative body of each contiguous city and town, with the approval of the mayor, board of selectmen or other chief executive officer. Such agreements also must be approved by the Massachusetts Department of Revenue.
The Act includes language allowing a court, in its discretion, to require a plaintiff in an action appealing a decision to approve a special permit, variance or site plan to post a surety or cash bond up to $50,000 if the court finds that the harm to the defendant or the public interest resulting from delays caused by the appeal outweighs the financial burden on the plaintiff. In exercising this discretion, the court may consider the relative merits of the appeal and the relative financial means of the plaintiff and the defendant.
Advocates for these so-called Housing Choice reforms hope that they will facilitate local zoning approvals for production of more housing stock, including more mixed-use projects that include housing. The legislation also reflects an intent to promote transit-oriented development around transit hubs and nodes, and in village centers.