New MBTA Communities Zoning Law Makes it Easier to Create the Homes the Commonwealth’s Residents Need - Boston Bar Association (2024)

by Eric Shupin, Abhidnya Kurve, and Dana LeWinter

Heads Up

As home prices and rents continue to rise at rates that far outpace incomes, particularly for people with low wages, Massachusetts has put a new law on the books to support the goal of producing the 200,000 homes needed to meet the Commonwealth’s housing demand. The Economic Development Bond Bill of 2021 creates a new Section 3A in the state’s Zoning Act, G.L. c. 40A (“Section 3A”), which requires 175 communities served by the MBTA (“MBTA Communities”), as currently defined under G.L. c. 161A, §§ 1 and 6, to zone for at least one district where multifamily housing is permitted as of right. The legislative goals of Section 3A include providing MBTA Communities with more tools to direct development in transit-oriented locations that can reduce the need for people to drive, offer residents more choice through the creation of diverse housing types, protect the environment and preserve open spaces, and boost foot traffic for local businesses and amenities in a manner consistent with the community’s long-term planning goals and fair housing and equity principles. The Baker Administration issued draft compliance guidelines for Section 3A on December 15, 2021 (“Draft Guidelines”) and are accepting public comments until March 31, 2022. This article provides an overview of the new statutory requirements and Draft Guidelines.

New Statutory Requirements

Section 3A requires MBTA Communities to have zoning ordinances or by-laws that comply with the following requirements (“Multifamily Requirements”):

• At least one zoning district must permit “multi-family housing” uses “as of right”.
• The multifamily district must be of “reasonable size” to allow a minimum gross density of 15 units per acre.
• The multifamily housing must have no age restrictions.
• The multifamily housing must be suitable for families with children.
• A multifamily district must be located not more than ½ mile from a commuter rail station, subway station, ferry terminal or bus station, if applicable.

Overview of Draft Guidelines

On December 15, 2021, the Department of Housing and Community Development (DHCD) issued Draft Guidelines for MBTA Communities to implement and comply with the new zoning requirements of Section 3A. Community-specific technical assistance and a Frequently Asked Questions guideline are available.

First Compliance Response Due by May 2, 2022

Effective December 15, 2022, an MBTA Community must take the following actions by 5:00 PM on May 2, 2022 to comply with Section 3A:

• Hold a briefing on the Draft Guidelines with the Select Board, City Council, or Town Council, as applicable;
• Submit a completed Community Information Form; and
• Submit updated GIS parcel maps to DHCD if the most recently submitted maps were submitted prior to January 1, 2020.

Determination of Compliance

DHCD is responsible for determining compliance with the Multifamily Requirements of Section 3A in accordance with the following schedule and criteria:

By December 31, 2022, an MBTA Community must either:

• Submit a request for a determination of “full compliance” on a form required by DHCD with certain required information on DHCD-approved templates, demonstrating that the zoning and multifamily district complies with the Multifamily Requirements; or
• Notify DHCD that there is no existing/compliant multifamily zoning district, and submit a proposed action plan by certain deadlines.

Upon receipt of a complete application, DHCD will either issue a written determination of full compliance, or state what steps must be taken to achieve compliance. A determination of interim compliance will allow the MBTA Community to plan for and pass a multifamily district to achieve full compliance.

By either March 1, 2023 or July 1, 2023, depending on the category of MBTA Community (see below), an MBTA Community must obtain approval for its Action Plan to maintain interim compliance.

By December 31, 2023, or December 31, 2024, depending on the category of MBTA Community, an MBTA Community must adopt its multifamily zoning amendments under Section 3A.

By March 31, 2023, or by March 31, 2024, depending on the category of MBTA Community, an MBTA Community in interim compliance must apply for determination of full compliance.

Effects of Noncompliance

Failure to comply with the Multifamily Requirements would make a community ineligible for funds from:

• Housing Choice Grants;
• Local Capital Fund Projects; and
• MassWorks Infrastructure Program.

DHCD may also, in its discretion, consider non-compliance when making other discretionary grant awards.

Definitions of “Multifamily Housing” and “As of Right”

To comply with Section 3A, the required multifamily zoning district must allow multifamily uses “as of right.” This means that multifamily housing must be able to be constructed and occupied without being subject to any discretionary permit or approval process (or even a site plan review), which would deny the project or impose conditions that make proceeding with the multifamily housing infeasible or impractical.

“Multi-family housing” is defined in the draft guidelines as a building with:

• Three or more residential units; or
• Two or more buildings on the same lot with more than one residential unit in each building.

Categories of MBTA Communities

The draft guidelines separate the 175 MBTA Communities into four categories, based on the level of public transit service in that city or town. The category of MBTA Community impacts the deadlines for compliance:

Determining “Reasonable Size”

To determine a “reasonable size” for a district, DHCD will consider both the area of the district and the district’s multifamily unit capacity. The draft guidelines require a district to have:

• Land area of at least 50 contiguous acres or approximately one-tenth of the land area within 1/2 mile of a transit station; and
• Unit capacity to meet or exceed certain requirements based on the municipality’s assigned category of MBTA Community, as set forth below.

Unit Capacity Requirements for Multifamily Districts

The draft guidelines set specific percentages of the total housing units that can be developed as of right within the multifamily district, which is calculated based on the category of transit service.

See thischart for multifamily unit capacity for each MBTA Community.

15 Units per Acre Minimum “Gross Density”

“Gross density” is defined in the Zoning Act as “a units-per-acre density measurement that includes land occupied by public rights-of-way and any recreational, civic, commercial and other nonresidential uses.” Section 3A compliance requires that a multifamily district—not just the individual parcels of land within the district—have a minimum gross density of 15 units per acre, “subject to any further limitations imposed by section 40 of Chapter 131 and title 5 of the state environmental code.”

In addition to district-wide gross density, MBTA Communities can establish sub-districts within a multifamily district with different density requirements and limitations, provided that the gross density for the district as a whole is not less than 15 multifamily units per acre.

Housing Suitable for Families with Children

DHCD will deem a multifamily district to be in compliance with the Section 3A prohibition on age restrictions and suitability for families with children if the zoning does not require uses to include units with age restrictions (e.g., restricted to those aged 55 years or older) and prohibits any limits or restrictions on the:

• number of bedrooms,
• size of bedrooms, or
• number of occupants.

Location of Districts

Section 3A requires multifamily districts to be located within ½ miles of a transit station, if applicable. The draft guidelines state that DHCD will:

• Follow a general rule for measuring the distance from the transit station to allow measurement from the boundary of any parcel of land of that transit station, such as an access roadway or parking lot.
• For MBTA Communities with some land within ½ mile of a transit station, the draft guidelines require a substantial portion–at least half–of the multifamily district to be located within that distance.
• For MBTA Communities with no land within ½ mile of a station, the multifamily district should, if feasible, be located in an area with reasonable access to a transit station or in an area near an existing downtown or village center.

Conclusion

Section 3A, along with other long-overdue changes to the Zoning Act under the Economic Development Bond Bill, provides our state with a welcome opportunity to ensure that our communities grow stronger and healthier. To learn more about the guidelines, including FAQs, and to submit comments by the March 31^st deadline, go to https://www.mass.gov/info-details/multi-family-zoning-requirement-for-mbta-communities.

Eric Shupin is the Director of Public Policy at Citizens’ Housing and Planning Association (CHAPA). Shupin is the public policy co-chair of the Boston Bar Association’s Real Estate Section. Shupin holds a J.D. from The George Washington University Law School.

Abhi Kurve is a Policy Associate at CHAPA.Previously, Kurve worked as an intern at the Massachusetts Public Health Association and as a Nutrition Advisor, where she strategized and implemented initiatives to raise nutrition awareness across India. She holds a Master’s in Public Health from the Massachusetts College of Pharmacy and Health Science.

Dana LeWinter is the Municipal Engagement Director at CHAPA. LeWinter worked previously as the Executive Director of the Massachusetts Community and Banking Council and served as the Housing Director for City of Somerville. She holds a Master’s in Urban and Environmental Policy and Planning from Tufts University.