Massachusetts passes state zoning changes to encourage residential development
March 09, 2021
Holland & Knight
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- The Commonwealth of Massachusetts has made significant changes to state zoning laws to encourage housing and, in some cases, mixed-use development, including housing.
- Law Enabling Partnerships for Growth, Chapter 358 of the Acts of 2020 (the Act), amended Chapter 40A of the Massachusetts General Laws in a number of areas known as the Housing Choice Initiative to combat barriers to housing production and to support cities and municipalities that are committed to promoting residential development.
- This Holland & Knight Warning summarizes these important zoning changes that are contained in the law.
The Commonwealth of Massachusetts has made significant changes to state zoning laws to encourage housing and, in some cases, mixed-use development, including housing. This warning from Holland & Knight summarizes the major zoning changes included in Economic Development Legislation – A Law Enabling Partnerships for Growth, Chapter 358 of the 2020 Laws (the Law) – signed January 14th 2021 by Charlie Baker, Governor of Massachusetts.
Although 350 Massachusetts cities and towns control their own zoning through local ordinances or statutes (the city of Boston has its own zoning laws), those local ordinances and statutes must comply with the State Zoning Act enshrined in Massachusetts General Laws Chapter 40A. The law, known as the Housing Choice Initiative, changed Chapter 40A in the areas described below to tackle barriers to housing production and to help cities and towns advocate for housing development. The Massachusetts Executive Bureau for Housing and Economic Development (EOHED) has issued preliminary guidance on the interpretation of these new regulations, which is available on its Housing Choice website. EOHED also plans to issue further guidance and in cases of uncertainty local authorities (but not private sector parties) can write to EOHED to request an opinion.
Change of voting standards for the adoption or amendment of zone ordinances or statutes
Massachusetts law has historically required a two-thirds vote from the local councilor or city council to pass or change zoning ordinances or statutes. This supermajority voting standard has been an obstacle to passing new zoning regulations or changing existing zoning laws that are seen as being friendly to promoting or enabling residential development. The law changes the voting standard from a two-thirds majority to a simple majority for a specific list of zoning regulations that facilitate housing production. The zoning ordinances, statutes or amendments that can be enacted with a simple majority include those that: 1) permit multi-family houses or mixed-use settlements in a suitable location, ancillary housing units or open space housing estates by law; 2) through a special permit for multi-family houses or mixed-use settlements at an eligible location, an increase in the permissible population density or intensity of a particular use in a proposed multi-family or mixed-use settlement, ancillary housing units or a reduction in the amount of parking spaces that allow for residential or mixed used buildings are required; 3) provide for a transfer of development rights zones (TDR) or natural resource protection zones when the introduction of such zones promotes concentration of development but does not reduce the maximum total number of housing units in the municipality or otherwise amends the regulations on bulk goods; Height, property area, yard size, open space, parking or building cover to enable additional residential units; and 4) establish a Smart Growth Zone District or a Starter Home Zone District.
Change of the coordination standards for the granting of special permits for certain project types
The law also reduces the number of votes required for an authority granting special permission to issue special permission for certain types of special permits promoting multi-family housing and mixed-use development that are considered transitory rather than majority voting . The special permits, which can now only be granted with a simple majority, include: 1) Apartment buildings that are within half a mile of an S-Bahn train station, an underground station, a ferry terminal or a bus stop, provided that it is not less than 10 percent These homes are available to be affordable and inhabited by households with an annual income less than 80 percent of the median land income (AMI), as determined by the U.S. Department of Housing and Urban Development (HUD), and affordability is maintained for at least 30 years guaranteed with an affordable housing restriction; 2) mixed-use development in commercial centers within a community, including cities and other business districts, provided that no less than 10 percent of housing is affordable and inhabited by households with annual incomes less than 80 percent AMI and affordability have been at least for Guaranteed for 30 years with an affordable housing restriction. and 3) reduced parking to dwelling ratios as long as such a reduction in parking space leads to the production of additional dwelling units. The law does not require authorities that grant special permits to issue those special permits, but it does make it easier to approve such special permits as they are now approved by simple majority.
Required multiple families from right zones in MBTA communities
In the 176 parishes served by the Massachusetts Bay Transportation Authority (MBTA), law requires cities and towns in “MBTA parishes” to legally establish multi-family zones. Such municipalities must adopt a zoning ordinance or a statute which by law provides for at least one multi-family district without age restrictions and suitable for families with children. These districts must have a minimum gross density of 15 units per acre and must be no more than half a mile from a S-Bahn, subway, ferry, or bus station. An MBTA community that does not comply with this section will not be eligible for certain government funding, including funding from the Housing Choice Initiative, Local Capital Projects Fund, and the MassWorks Infrastructure Program. The Commonwealth has issued guidelines informing cities and towns where the MBTA operates that they have adequate time to establish such legal zones before attempting to exclude those cities from government grants.
Adjacent communities can make arrangements to share the income
The law explicitly provides that related cities and towns may enter into agreements to share the costs of public infrastructure, community services and local tax revenue related to the development of an identified property or parcels or development within the adjoining communities in general . Such agreements are approved by a majority of the legislatures of each adjacent city and town with the consent of the Mayor, Board of Selectmen, or other chief executive officer. Such agreements must also be approved by the Massachusetts Department of the Treasury.
Bonds in special approval complaints
The law contains language that allows a court, in its sole discretion, to require a plaintiff in a lawsuit appealing a decision approving a permit, derogation, or site plan for a surety or loan up to to be deposited at $ 50,000 if the court determines the damage has occurred to the defendant or the public interest arising from the delays caused by the complaint outweighs the financial burden on the plaintiff. In exercising this discretion, the court may take into account the relative grounds of the complaint and the relative financial resources of the plaintiff and defendant.
Proponents of these so-called Housing Choice reforms hope they will facilitate the approval of local zones for the production of more housing, including more mixed-use projects that include housing. The legislation also reflects the intention to promote transit-oriented development near transport hubs and junctions as well as in village centers. For more information or questions about the law and its implications, please contact the authors.
The content of this article is intended to provide general guidance on the subject. A professional should be consulted about your particular circumstances.
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