Massachusetts Enacts Amendments to State Zoning Law Aimed at Encourage Housing Development | Holland & Knight LLP

The Commonwealth of Massachusetts passed significant 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 changes included in economic development legislation – An Act Enabling Partnerships for Growth, Chapter 358 of the statutes of 2020 (the law) – signed on January 14, 2021 by Massachusetts Governor Charlie Baker.

Although 350 cities and towns in Massachusetts control their own zoning through local ordinance or regulation (the City of Boston has its own enabling zoning legislation), these local ordinances and regulations must comply with the law. of State zoning, codified in Chapter 40A of the General Laws of Massachusetts. Dubbed the Housing Choice Initiative, the law amended Section 40A in the areas described below, with the goal of addressing barriers to housing production and helping cities and towns working to encourage development of accommodation. The Massachusetts Executive Office of Housing and Economic Development (EOHED) has released draft guidance interpreting these new provisions, available on its Housing choice home page. EOHED also plans to publish additional guidance and, in case of uncertainty, municipalities (but not private sector parties) can write to EOHED asking for an advisory opinion.

Changing voting standards to pass or change zoning ordinances or by-laws

Massachusetts law has historically required a two-thirds vote of the local city council or city assembly to pass or change zoning ordinances or by-laws. This supermajority voting standard has been a barrier to the passing of new zoning provisions or the amendment of existing zoning laws deemed favorable to promoting or permitting 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. Ordinances, regulations, or zoning changes that may be enacted by a simple majority vote include those that: 1) authorize as of right multi-family dwellings or mixed-use developments in a qualifying location, secondary suites or residential developments open concept; 2) permit, by special permit, a multi-family dwelling or mixed-use development in an eligible location, an increase in the permitted population density or the intensity of a particular use in a multi-family development project or at mixed-use, accessory dwelling units or a reduction in the amount of parking required for residential or mixed-use developments; 3° provide for development rights transfer (TDR) zoning or natural resource protection zoning where the adoption of such zoning favors the concentration of development but will not lead to a reduction in the overall maximum number of housing units of the municipality, or otherwise change regulations regarding footprint, height, lot area, yard size, open space, parking, or building coverage requirements to permit the addition of housing units; and 4) adopting a smart growth zoning district or starter home zoning district.

Changing voting standards for granting special permits for certain types of projects

The law also reduces the number of votes required for a special permit authority to issue a special permit to a majority vote, rather than a supermajority vote, for certain types of special permits promoting multi-family dwellings. and well-known transit-oriented mixed-use developments. Special permits that can now be issued with only a simple majority vote include: 1) multi-family dwellings located within half a mile of a commuter rail station, subway station, a ferry terminal or a bus station, provided that at least 10% of such accommodation must be affordable and occupied by households whose annual income is less than 80% of the area median income (AMI) such 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 cities and other commercial districts, provided that at least 10% of the dwellings are affordable and occupied by households whose annual income is less than 80% of the AMI and affordability is assured for at least 30 years with an affordable housing restriction; and 3) reduction of parking space/residential unit ratios as long as such reduction in parking requirements will result in the production of additional housing units. The law does not require the authorities in charge of issuing the special permits to issue these special permits, but it facilitates the approval of these special permits, since they will now be approved by a simple majority vote.

Multifamily required in good areas in MBTA communities

In the 176 communities served by the Massachusetts Bay Transportation Authority (MBTA), cities and towns are required by law to adopt multifamily zoning “as of right” in “MBTA communities”. These communities are required to pass a zoning ordinance or by-law that automatically authorizes at least one multi-family neighborhood, with no age limit and suitable for families with children. These districts must have a minimum gross density of 15 units per acre and be located within one-half mile of a commuter rail station, subway, ferry or bus stop, depending on the case. An MBTA community that does not comply with this section becomes ineligible for certain public funds, including funds from the Housing Choice Initiative, the Local Capital Projects Fund, and the MassWorks Infrastructure Program. The Commonwealth has issued directives advising the cities and towns in which the MBTA operates that it will allow them a reasonable period of time to enact these areas of law before they seek to disqualify such cities and towns from state subsidies.

Contiguous communities can enter into revenue sharing agreements

The law expressly provides that contiguous cities and towns may enter into agreements to share public infrastructure costs, municipal service costs and local tax revenues associated with the development of an identified parcel or parcels or development within contiguous communities in general. Such agreements are authorized by a majority vote of the legislature of each town and contiguous town, with the approval of the mayor, council of elected officials, or other chief executive. Such agreements must also be approved by the Massachusetts Department of Revenue.

Surety bonds in special permit appeals

The Act includes language permitting a court, at its discretion, to require an applicant in an action appealing a decision to approve a special permit, variance or site plan to file a bail or cash bond of up to $50,000 if the court finds that the harm to the defendant or the public interest resulting from the 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.

Conclusion

Proponents of these so-called housing choice reforms hope they will facilitate local zoning approvals for the production of more housing, including 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 centres.