The Affordable Homes Act includes several provisions that reduce zoning barriers to housing development. These provisions can only help to produce housing, but it is impossible to confidently predict in advance how much they will help.
Accessory Dwelling Units
Section 7 of the Act alters the definition the term “Accessory Dwelling Unit” as marked up below.
a self-contained housing unit, inclusive of sleeping, cooking and sanitary facilities on the same lot as a principal dwelling, subject to otherwise applicable dimensional and parking requirements, that: (i) maintains a separate entrance, either directly from the outside or through an entry hall or corridor shared with the principal dwelling sufficient to meet the requirements of the state building code for safe egress; (ii) is not larger in gross floor area than 1/2 the gross floor area of the principal dwelling or 900 square feet, whichever is smaller; and (iii) is subject to such additional restrictions as may be imposed by a municipality, including, but not limited to, additional size restrictions,
Revisions to definition in Section 1A of Chapter 40A by Section 7 of the Affordable Homes Actowner-occupancy requirementsand restrictions or prohibitions on short-term rental, as defined in section 1 of chapter 64G; provided, however, that no municipality shall unreasonably restrict the creation or rental of an accessory dwelling unit that is not a short-term rental.
Existing Section 3 of Chapter 40A sets various limits on local zoning powers. Section 8 of the Act adds a new paragraph expressly limiting local zoning power to exclude accessory dwelling units in areas that are zoned for single family occupancy.
No zoning ordinance or by-law shall prohibit, unreasonably restrict or require a special permit or other discretionary zoning approval for the use of land or structures for a single accessory dwelling unit, or the rental thereof, in a single-family residential zoning district; provided, that the use of land or structures for such accessory dwelling unit under this paragraph may be subject to reasonable regulations, including, but not limited to, 310 CMR 15.000 et seq. [septic system rules], if applicable, site plan review, regulations concerning dimensional setbacks and the bulk and height of structures and may be subject to restrictions and prohibitions on short-term rental, as defined in section 1 of chapter 64G. The use of land or structures for an accessory dwelling unit under this paragraph shall not require owner occupancy of either the accessory dwelling unit or the principal dwelling; provided, that not more than 1 additional parking space shall be required for an accessory dwelling unit; and provided further, that no additional parking space shall be required for an accessory dwelling located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station. For more than 1 accessory dwelling unit, or rental thereof, in a single-family residential zoning district there shall be a special permit for the use of land or structures for an accessory dwelling unit. The executive office of housing and livable communities may issue guidelines or promulgate regulations to administer this paragraph.
New paragraph added Section 3 of Chapter 40A by Section 8 of the Affordable Homes Act
The effects of these two paragraphs are as follows:
- Accessory dwelling units may be constructed by right in any single-family residential zoning district in any unit
- Local zoning may not “unreasonably” restrict them with dimensional regulations
- Local zoning may not require owner-occupancy or prohibit rental, but may prohibit short term rental
- Parking requirements may not exceed 1 space per unit (zero spaces if within 0.5 miles of public transportation )
- ADUs remain subject to possible site plan review
Site plan review and dimensional requirements — setback, bulk, height restrictions — could be used to limit ADU’s. The act contemplates more detailed guidance from the secretary of housing and livable communities to clarify what requirements might be considered to “unreasonably restrict” ADUs. This section takes effect in early February 2025, allowing time for promulgation of regulations.
Zoning Appeals
Litigation often contributes to delay and increases the cost of housing production. The Act includes several provisions intended to reduce dilatory appeals of zoning board decisions.
Standing
Existing Section 17 of Chapter 40A provides for judicial review of zoning board decisions.
Any person aggrieved by a decision of the board of appeals . . . may appeal to . . . the superior court department [or other courts] . . .. The complaint shall allege that the decision exceeds the authority of the board or authority . . .. The court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require.. . .
Excerpt from existing Section 17 of Chapter 40A (emphasis added).
The Supreme Judicial Court has given some meaning to the phrase “person aggrieved,” interpreting it as limiting potential plaintiffs to those who can demonstrate “particularized injury.” In Murchison vs. Zoning Board of Appeals of Sherborn, 485 Mass 209 (2020), the Supreme Judicial Court denied standing to a plaintiff who opposed the construction of a home across the street from them. However, the decision about particularized injury was a close enough call under existing law that the original trial court had to conduct an extensive hearing before denying standing and the intermediate appellate court reached the opposite conclusion and overruled the original court. While the SJC did reverse the appellate court and uphold the denial of standing, the opinion highlighted the need for clearer limitations on standing.
Section 11 of the Act adds new language intended to raise the burden on an abutter plaintiff seeking to demonstrate standing to litigate:
If the complaint is filed by someone other than the original applicant, appellant or petitioner, then each plaintiff, whether or not previously constituting parties in interest for notice purposes, shall also sufficiently allege and must plausibly demonstrate that measurable injury, which is special and different to such plaintiff, to a private legal interest that will likely flow from the decision through credible evidence.
Sentence added to existing Section 17 of Chapter 40A by Section 11 of the Affordable Homes Act (emphasis added)
This language makes clear that merely being an abutter does not confer a presumption of standing. It also squarely disallows litigation based on general concerns like neighborhood traffic or property values. Plaintiffs must show “measurable injury” to their “private legal interests.” The legislative intent is to strongly curtail abutter appeals of zoning board decisions.
Delay costs and attorneys fees
The existing appeals statute includes language intended to support housing production by allowing a court to require plaintiffs to post bond when appealing zoning board decisions. The Act amends and strengthens that requirement as shown below:
The court, in its discretion, may require a plaintiff in an action under this section appealing a decision to approve a special permit, variance or site plan to post a surety or cash bond in an amount of not more than
Amendments to Paragraph 3 of existing Section 17 of Chapter 40A by Section 12 of the Affordable Homes Act$50,000$250,000 to secure the payment ofcostsand to indemnify and reimburse damages and costs and expenses incurred in such an action if the court finds that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or cash bond on the plaintiffs. The court shall consider the relative merits of the appeal and the relative financial means of the plaintiff and the defendant. Nothing in this section shall require bad faith or malice of a plaintiff for the court to issue a bond under this section.
The Act also alters the language governing actual award of costs:
Costs, including reasonable attorneys’ fees, in an amount to be fixed by the court
Amendments to Paragraph 6 of existing Section 17 of Chapter 40A by Section 13 of the Affordable Homes Actshall notmay be allowed against the party appealing from the decision of the board or special permit granting authorityunless it shall appear to the courtif the court finds that the thatsaidthe appellant or appellants acted in bad faith or with malice in making the appeal to the court.
Read together, these changes have three effects:
- The allowable bond amount is raised from $50,000 to $250,000 supporting the award of a broader concept of costs.
- The cost liability covered by the bond and the potential ultimate award of costs to a defendant are broadened to include attorneys fees and damages due to the delays caused by the litigation, not just the traditional minimal “taxable” court costs or additional expert fees.
- It is made expressly clear that a court need not find bad faith or malice to support requirement of a bond. The only issue as to requirement of a bond is the balance of the potential harm of the litigation weighed against the burden to the plaintiff.
These changes respond directly to a Supreme Judicial Court decision, Marengi v Six Forrest Road LLC, 491 Mass 19 (2022) that narrowly construed the legislature’s previous bond language. The actual final award of costs to a defendant continues to depend on a finding bad faith or malice. These changes are intended to support housing production by strongly deterring litigation that does not have a strong prospect of success.
Small lots preserved
Section 6 of Chapter 40A governs the effect of zoning law changes on existing lots and structures, providing for continuation of some rights under previous zoning. The Act adds a new paragraph preventing the forced consolidation for zoning purposes of small existing lots.
Adjacent lots under common ownership shall not be treated as a single lot for local zoning purposes if, at the time of recording or endorsement, the lots: (i) conformed to then existing requirements of area, frontage, width, yard or depth, where each such lot has not less than 10,000 square feet of area and 75 feet of frontage; and (ii) are located in a zoning district that allows for single-family residential use. Any single-family residential structure constructed on said lot shall not exceed 1,850 square feet of heated living area, shall contain not less than 3 bedrooms and shall not be used as a seasonal home or short-term rental.
New paragraph 5 of existing Section 6 of Chapter 40A by Section 10 of the Affordable Homes Act
This language will help allow the construction of small starter homes in some suburban settings where minimum lot sizes have been increased to force the construction of larger homes.
Other zoning related changes
The Act makes two additional changes to zoning law:
- Section 14 of the Act adds a new section 18 to Chapter 40A. The section authorizes municipalities that offer zoning incentives or requirements for affordable housing to negotiate with developers to include a preference for low- or moderate- income veterans.
- Section 15 of the Act adds a reporting requirements for the Housing Appeals Committee, the body that hears 40B appeals, to focus attention on the issue of delays of appeals.