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Salim Furth
Gov. Charlie Baker and the Massachusetts legislature want other towns to become more like Walpole. At least, that’s one way to see the Housing Choice reforms newly enshrined as Section 3A of the Zoning Act.
Downtown Walpole is a walkable mosaic of commerce and residences, zoned to allow dense development. New, mixed-use buildings have replaced industrial sites near the commuter rail station, complementing longtime businesses and civic institutions that surround the Common. Section 3A will nudge other towns in the same direction.
Section 3A applies to 176 “MBTA communities” defined by state law, whether or not they have a transit station. To remain eligible for MassWorks and two other state grant programs, each municipality must provide a district where multifamily housing can be built “as of right” – without a special permit, variance, or discretionary approval from a regulator such as the Boston Planning & Development Agency – with a density of at least 15 units per acre.
Qualifying districts cannot be age-restricted and must allow housing “suitable for families with children.” However, the districts may also allow age-restricted buildings, studio apartments and non-residential uses.
Sarah Khatib
Towns with subway, commuter rail, ferry or bus stations face an additional requirement: The qualifying district must be within half a mile of a station. Whether that distance is linear or along roads is one of many questions the Department of Housing and Community Development (DHCD) must answer as it crafts the implementing regulation that will validate some communities and leave others scrambling to rezone.
‘Multifamily’ Must Be Defined
The spirit of the law is clear: Allow apartments for families near transit. Walpole has found a way to do that – but it is not clear if Walpole will qualify without rezoning.
For Walpole, the sticking point is whether mixed-use buildings qualify as “multifamily” under the new law. Walpole’s downtown zoning code allows mixed–use apartment or condominium buildings as of right, if the ratio of residential to commercial space is 3.5 or less. On a typical one-fifth of an acre lot, current zoning would allow roughly 15 apartments above first-floor commercial space. This promotes the type of mixed-use, transit-oriented development, which the commonwealth has long touted.
But Walpole’s experience also shows the limits of prescriptive mixed-use zoning. Both of Walpole’s recently constructed mixed-use buildings exceed the allowed commercial-to-residential ratio, as well as the height limit, thus requiring variances. The experience shows the tension that can arise between TOD and multifamily construction.
DHCD’s regulations should clarify whether the definition of “multifamily” includes mixed-use multifamily, and within what limits. It may also need to regulate suitability for families, as Walpole and other towns have used their discretionary authority to limit or eliminate two– and three–bedroom units in large projects.
What’s a Reasonable Size?
An even bigger question facing DHCD is how big each town’s district must be. The law’s “reasonable size” requirement could be a T-bone steak or a nothingburger. In Norwood, for example, there’s a half-acre multifamily zone that contains a single apartment building. Is that big enough?
Reasonableness is context-dependent, but towns also need clarity. DHCD should publish a formula to compute the “reasonable size” of a qualifying district that takes into account each town’s number of transit stations, land area, and total employment. It should also allow towns to trade off size for density. A town required to zone 100 acres at 15 units per acre ought to be allowed to zone 50 acres at 30 units per acre, down to some limit.
Scaling district size with employment ensures that housing can be built near jobs, allowing people to cut down on commute time. Scaling by population, by contrast, would place the heaviest responsibility on towns that have already made room for growth.
For now, DHCD has deemed all MBTA communities temporarily in compliance. After it publishes regulations, it should inform each town of its compliance status and set a deadline for non-compliant towns to enact zoning changes before they become ineligible for key state grants.
We have assumed that towns will respond in good faith. But DHCD will have to evaluate potential poison pills – districts which meet the letter of the law but use onerous site plan, affordability and environmental requirements to quietly ensure that no real-world project can pencil out. Towns should qualify if they can show that a multifamily building has been built as of right under the code they use. DHCD should reserve the right to exercise its judgment in places where a suspiciously restrictive zoning district cannot show results.
Massachusetts needs more homes: for people signing their first leases, retirees who want to downsize and everyone in between. It also has a centuries-old tradition of strong town centers, which anchor real communities. Walpole demonstrates one way to help alleviate the housing shortage while strengthening the town center. With the zoning reform nudging them to take action, we hope many more Massachusetts towns will follow Walpole’s lead.
Salim Furth is a senior research fellow with the Mercatus Center at George Mason University. Sarah Khatib is the vice chair of the Walpole Planning Board. She founded Destination Downtown, a non-profit dedicated to the revitalization of downtown Walpole.
