The shortage of new housing in Greater Boston has been an ongoing problem, and a factor in slowing economic growth. Last October, the Metropolitan Policy Program at the Brookings Institution published an ambitious report advocating zoning changes to allow the construction of apartments, condominiums and town houses within a half mile of mass transit stations. The report argued that allowing multifamily uses nearby public transportation facilities would help address residential segregation, high housing costs, climate change, and car dependence, as well as providing much-needed new housing stock.
On January 14, 2021, Governor Baker signed An Act Enabling Partnerships for Growth (Chapter 358 of the Acts of 2020), economic stimulus legislation that includes significant changes to the state-wide Zoning Enabling Act. Those changes mandate the creation of by-right multi-family zoning districts in MBTA Communities. This requirement opens the door for new multi-family development in communities that historically may have been opposed to greater housing density.
The new section of the Zoning Enabling Act, Section 3A, applies only to “MBTA Communities.” That term is defined broadly to include:
- the “14 cities and towns,” as defined in section 1 of chapter 161A, which include Boston and its nearest suburbs (Arlington, Belmont, Boston, Brookline, Cambridge, Chelsea, Everett, Malden, Medford, Milton, Newton, Revere, Somerville and Watertown)
- the “51 cities and towns,” as defined in section 1 of chapter 161A, served by the MBTA and which are outside of the first classification (Bedford, Beverly, Braintree, Burlington, Canton, Cohasset, Concord, Danvers, Dedham, Dover, Framingham, Hamilton, Hingham, Holbrook, Hull, Lexington, Lincoln, Lynn, Lynnfield, Manchester-by-the-Sea, Marblehead, Medfield, Melrose, Middleton, Nahant, Natick, Needham, Norfolk, Norwood, Peabody, Quincy, Randolph, Reading, Salem, Saugus, Sharon, Stoneham, Swampscott, Topsfield, Wakefield, Walpole, Waltham, Wellesley, Wenham, Weston, Westwood, Weymouth, Wilmington, Winchester, Winthrop and Woburn)
- any municipality that has chosen to be added to the MBTA.
The new statute requires all MBTA Communities to create a zoning district, of reasonable size, that allows multi-family zoning by right, without the requirement of a special permit or other discretionary approval. Multi-family housing is defined in the Act as a building containing three or more residential dwelling units or two buildings on one lot, each containing more than one residential dwelling unit.
To comply, the new district must:
- Be suitable for families
- Not be age restricted
- Have a minimum gross density of 15 units per acre (calculated to include land occupied by non-residential uses as well as public rights of way) and
- Be located within 1.2 miles of a commuter rail station, subway station, ferry terminal or bus station
The measurement of gross density in the newly-created district may be subject to limitations imposed by non-zoning land use regulations, such as the Wetlands Protection Act and Title V of the State Environmental Code (governing septic systems).
Any MBTA Community that fails to create this required new zoning district will not be eligible for funds under the Housing Choice Initiative; the Local Capital Projects Fund and the MassWorks infrastructure program. This represents a significant potential penalty for those communities that fail to adopt the required zoning.
The Department of Housing and Community Development (“DHCD”) must develop guidelines to evaluate each MBTA Community’s compliance with these new requirements. DHCD issued preliminary guidance for those communities on January 29, 2021.
The new multifamily zoning requirement imposed on MBTA Communities has the potential to transform the areas surrounding existing transit stations, providing significant opportunities for redevelopment, and, as theorized in the Brookings Institution report, to improve housing affordability, stimulate socio-economic diversity and promote the use of public transportation over automobiles.
Conclusion
The new Act’s approach to incentivizing communities to allow multifamily housing near transit stations is an example of the Commonwealth using the zoning power to affirmatively mandate certain types of development, rather than allowing communities to use the zoning power to limit development. Similar to the affordable housing requirements of Chapter 40B, the law is moving to require communities to permit uses they may have historically sought to avoid.
For more information, please contact the author of this alert, Ann Sobolewski (asobolewski@princelobel.com, 617-456-8167) or a member of the Prince Lobel Real Estate team.