Click here for a short video explanation and discussion.
In early January, the legislature passed “An Act Enabling Partnerships for Growth” — a sprawling economic development bill. The bill includes zoning law changes intended to increase affordable housing production.
Here are the key changes that the recent legislation makes in Chapter 40A.
The act makes it easier for 40A communities to approve zoning proposals to support affordable housing by lowering the voting threshold for town meeting or city council approval from two-thirds to a simple majority. The categories of proposal that are now subject to a simple majority vote include the following:
(1) Multifamily or mixed use developments near transit stations, in town center areas, or in otherwise “eligible locations” which have the necessary transportation and other infrastructure.
(2) Accessory Dwelling Units — self contained dwelling units within an existing residential unit. An ADU is defined as a unit that is less than half the size of the principal unit or 900 square feet, whichever is smaller. An ADU has its own sleeping, cooking and sanitary facilities and its own separate entrance (which may be off an interior hall way). Creation of ADUs may not violate the basic zoning limits on the size of the principal structure and towns may restrict ADUs as to their use for short term rentals and/or require owner occupancy of the main structure.
(3) Changes that alter dimension rules like setbacks, bulk, or height that have the affect of allowing the construction of more housing units than otherwise permissible under existing zoning.
(4) Certain more complex housing proposals that take advantage of the state’s “smart growth” or “starter home” incentives under Chapter 40R or use transfers of development rights among parcels to concentrate development. The legislation also strengthens the provisions of Chapter 40R developments to require more family housing in order to qualify for Chapter 40R incentive payments.
Similarly, the legislation lowers to majority vote the threshold for special permit grants by zoning or planning boards for certain housing programs.
The legislation also creates a new requirement for communities served by the MBTA. MBTA service is deeply subsidized by the state. Communities that benefit from MBTA service should include denser dwelling areas that will provide the passenger traffic to justify that service and will further the statewide goal of affordable housing development.
The legislation requires that MBTA communities must have a zoning district of “reasonable size” which permits three or more family dwelling units per lot as of right and effectively allows 15 family units per acre. This district must be within half a mile of a commuter rail station or other transit terminal*. Communities that fail to include such a zoning district will lose eligibility for state project grants from the Housing Choice Initiative, the Local Capital Projects Fund, and the MassWorks infrastructure program.
This provision needs some definition — most importantly, the term “reasonable size” is a big variable. The department of housing and community development is creating guidance on this issue and no community will lose eligibility for the grant programs until that guidance is finalized.
To reduce litigation related to developments, the legislation allows judges to require plaintiffs seeking to stop a development with a lawsuit to post a bond of up to $50,000 to proceed. The judge may require this bond only upon a finding 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.” The language of this section should not hamper abutter claims that have merit.
When the legislature passes laws, it does so with the humble recognition that the laws may or may not work as intended. It takes time for consequences to be fully understood and laws often require adjustment. I hope that my constituents will provide me with steady feedback on these changes as they are implemented over the next few years.
* The exact words of the statute are “be located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station, if applicable.” This is one of those phrases that needs interpretation . . . is a bus stop a bus station?