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An MBTA commuter rail train pulls into a station. Communities served by the agency are now required to allow a minimum 15 multifamily units per acre in a zoning district within one-half mile of a transit station. Photo by Steve Adams | Banker & Tradesman staff
In January, Gov. Charlie Baker signed into law “An Act to encourage new development and usher in a recovering economy.” This new law amends the Massachusetts Zoning Act to facilitate multifamily housing production near public transportation hubs and town centers. However, because Boston zoning regulations are authorized under a separate enabling act, the new law does not affect Boston’s zoning code.
The amendment adds several new defined terms. For example, an “accessory dwelling unit” is a self-contained housing unit on the same lot as the principal dwelling, having not more than one-half the floor area of the principal dwelling or 900 square feet of floor area, whichever is smaller. “As of right” refers to developments that can proceed without special permits, variances or other zoning relief. An “MBTA community” is a municipality having MBTA service. A “mixed-use development” is a development that combines residential and non-residential uses. “Multifamily housing” refers to buildings with three or more dwelling units. An “open space residential development” is a project with buildings clustered together and dedicated open space.
A new Section 3A of the Zoning Act requires MBTA communities to establish at least one zoning district “of reasonable size” where multifamily housing is permitted as of right. These districts must be located within one-half mile of a commuter rail station, subway station, ferry terminal or bus station, and must allow a minimum gross density of 15 dwelling units per acre. If an MBTA community fails to comply, it is ineligible to receive funding from certain state programs.
Editor’s Note: This month’s “Law of the Land” marks Christopher Vaccaro’s 100th column for Banker & Tradesman.
Under prior law, amendments to zoning ordinances and by-laws always required approval by a two-thirds vote of municipal governing bodies. The new law reduces this requirement for certain zoning amendments that promote higher density housing. A simple majority can now amend local zoning laws to allow the following:
- As of right development of multi–family housing and mixed-use developments near public transportation facilities and town centers, accessory dwelling units and open-space residential developments.
- Development by special permit of multifamily housing and mixed-use developments near public transportation facilities and town centers, increased density for multifamily and mixed-use developments, accessory dwelling units in detached structures on the same lot and reduced parking requirements for residential or mixed-use developments.
- Transfers of development rights and natural resource protection zoning promoting concentration of development, if the zoning amendment will not diminish the maximum number of housing units that can be developed within the municipality.
- Modifications to dimensional regulations to allow additional housing units beyond what is permitted under existing zoning laws.
- Establishment of smart growth zoning districts under Massachusetts General Laws chapter 40R, which allow higher density residential developments that include affordable housing.
Lower Barriers to Approve Special Permits
The new law amends Section 9 of the Zoning Act regarding issuance of special permits by special permit-granting authorities (SPGAs). The Zoning Act generally requires unanimous approval of special permits by three-member SPGAs and supermajority approval for SPGAs with five or more members. SPGAs can now grant special permits by a simple majority vote for multi-family housing located within a half-mile of public transportation facilities, and mixed-use developments in town centers, if at least 10 percent of the housing is set aside for households whose annual income is less than 80 percent of the area-wide median income. SPGAs can also grant special permits by a simple majority for reduced parking space requirements if the reduction causes development of additional housing units.
Christopher Vaccaro
Another interesting change involves Section 17 of the Zoning Act, which allows “persons aggrieved” (often abutters) to appeal local zoning decisions to the Land Court or Superior Court. Under the new law, judges hearing appeals of decisions granting special permits, variances or site plan approvals may require plaintiffs to post surety or cash bonds of up to $50,000 to secure payment of costs, if the judge finds that harm to defendants or the public interest resulting from delays caused by the appeal outweighs the financial burden of the bond on the plaintiffs. Judges must consider the relative merits of the appeal and the financial means of plaintiffs and defendants. Zoning attorneys will be watching carefully how judges apply this newfound discretion to impose bond requirements on plaintiffs in zoning appeals.
The requirement that MBTA communities allow higher density development as of right near public transportation hubs, should promote more housing development in those communities in coming years. As to the remainder of the new law, only time will tell which cities and towns choose to utilize it to increase local housing production, and whether it achieves the desired results.
Christopher R. Vaccaro, Esq. is a partner at Dalton & Finegold, L.L.P. in Andover. His email address is cvaccaro@dfllp.com.
