Affordable Housing Production

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.

The state’s general zoning statute, Chatper 40A, governs zoning in most communities, including Belmont and Watertown.  Boston has its own separate zoning law which was not altered by this legislation.

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?

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.

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20 Comments

  1. Will: Do you think that this would increase such Housing in
    Belmont; will eligible tenants include Senior Citizens; and what, if, are the income limits for Seniors to apply for such Housing.
    Thanks,
    Denise C. Moore, Esq.
    PS Hope that you and your wonderful Family are all well. Got my first VAX last week at Dana Farber Cancer Institute in Newton — so easy. Next week I will get the second dose.

  2. Article 3, that allows changes to “setbacks, bulk, or height”, worries me greatly. Setbacks are important to allow for safe sidewalks, trees, and general look of communities–looming buildings are not good for anyone, including our environment. Although I am from Boston, I am concerned for these communities and for the new residents–let us not start out compromising the standards of livability for new neighbors who are residents of affordable housing.

  3. It never ceases to amaze me that the percentage of affordable units required is never increased but everything beneficial to developers flows through.
    Perhaps someday deed restricted perpetuity of affordable housing units in 40B will save buying them back from expiring will and save the billions for use in building more housing.

  4. I am also concerned with setbacks. Have these been in coordination with the recommendations of the Boston Complete Streets reports/standards and Boston’s Urban Forest Plan?

  5. This legislation sets up a situation in which some zoning enactments will require a simple majority, others a two-thirds. An unintended consequence may be an increase in the workload of city solicitors, town counsels, moderators, and the Attorney General’s municipal law division, who will now need to parse the technicalities to determine which is which.

  6. A great start, Bill, and I thank you for supporting it, though I know it is probably not popular in all your constituencies. It doesn’t go anywhere near far enough, but it’s a good start, and I’m sure it’s as much as could be accomplished at present. I live in Belmont, near the Waverly commuter rail and electric trolley, where every development is fought tooth and nail. Yet we have plenty of capacity for more housing and our public transportation is vastly underutilized. The pretense that we live in a small “town of homes” while actually being next door to a major metropolis is just silly. It would be be laughable except for the social inequity it causes. Older people of privilege can own homes, and everybody else is out of luck. We have to start recognizing that our fetish for low-density housing is an injustice to today’s generations. At least this prevents a 1/3 minority of town meeting from preventing any changes that a majority actually favors.

  7. I’m not well informed on housing issues, but all this sounds really good to me. Metro Boston is altogether too spread out and sprawling IMO, causing extra congestion and pollution, and making the near suburbs less interesting than they might otherwise be. And of course lack of affordability is obviously a serious issue here.

    The little bit I follow housing issues it’s very frustrating to see the anti-development activists always trying and often succeeding at cutting down the size of new buildings and preventing development. They seem very knowledgeable about the review process, extremely motivated, and full of free time. I suppose they have their interests and their concerns, maybe some of which would be more understandable to me if I paid more attention, but, all the same, I’m happy about the removal of the supermajority as a renter and observer of the region’s problems.

  8. Thank you! Just about anything we can do to make it easier to build more housing, especially affordable housing, is much appreciated and welcome. This is how we help those who cannot otherwise afford to live here, and hopefully reduce rents for those of us who already do live here.

  9. Senator,
    I will not be able to attend your Town Hall. Overall, I think it is a great idea and in fact, have, over the years, changed my opinion on this issue. However I do have three concerns that will undoubtedly test your observation, “When the legislature passes laws, it does so with the humble recognition that the laws may or may not work as intended.” I will list them here to make sure these get your attention:

    1. What MUST the towns–with the help of the state–do to ensure its infrastructure–water, sewage, roads, parking, etc.–is up to snuff? (Just one specific example: In Cambridge people fight over parking spots they have cleared of snow. Will the ADU approvals come with requirement to prove availability of off street parking?)
    2. What will be prevent unscrupulous developers from taking advantage of this change? A beautiful, old house with plenty of land (and a gorgeous tree) was torn down on Summer Street in Watertown. 3 units replaced it: Hideous to look at and priced at $1.6 million (+/-) each. The developers got rich, the neighbors got an eyesore and the town DIDN’T get much needed affordable housing.
    3. What changes are being made to rental regulations to ensure that the laws work as intended? A Watertown resident and property owner since 1987, I recently lived for 3-1/2 years in one of the multi-unit complexes near the Square (after returning from abroad). The already high rents rose 6-8% like clockwork every year. One time, I decided to see if I could get a better deal at other complexes. I signed up for an appointment on the websites. Of course that required disclosing where I lived. One company called me back to say no one was available to show me listed units. Another company denied ever receiving my signup on its website. Anti-trust enforcement anyone? Finally, I decided it would be cheaper for me to buy another single unit place in Watertown–MUCH cheaper.

    While many problems can’t be predicted, these ones can be. If they can be, solutions also must be included in the legislation. If not, the anticipated benefits will not materialize.

  10. Watertown is already 7,987.9/sq mi Watertown, MA / 32,880 or #8 city in MA per density. I’m for smart affordable housing but would not want to see the most of the town turned into 4-6 story apartments. We have triple the amount of housing we had in the past 5 years, though the cost to rent is not very affordable. Plus the bus line on Mt Auburn (preCovid) was over crowded and people could not even get a bus during rush hour. We don’t have a commuter rail stop(Brighton/Watertown line near Arsenal would be perfect) and there will be more apartments at Arsenal too(commuter rail there would be great or a free shuttle to Boston Landing). Belmont is #15. 5,330.2/sq mi btw. I’m curious as to how we can agree on smart(local driven) affordable housing(though we first need to defining what this means)!

  11. While I applaud the intent and more housing and more affordable housing, I differ with the description of the MBTA: “MBTA service is deeply subsidized by the state.” Rather, we all pay because we all benefit. Contrast that with road taxes (on fuel) which do not cover the full cost of roads which we all contribute some to, even if we do not drive.

    We all benefit from use of the T, even if we don’t ride it. Ever! Local emissions, climate change, congestion, urban sprawl, urban economic activity, and more, are all effected by the use of the MBTA, and all improved, for all, even for those who just walk or bike.

  12. And, we should do more of it. Fast, timely, predictable electric train service, even to the Berkshires and beyond, would serve those who now, because of Covid, have experimented with working at home. Such train service would support Massachusetts cities, towns, and villages across the state, and support the rising work-at-home individuals and families and similarly the urban cores where startups, science, and technology has been born.

  13. These changes should take into consideration the rising temperatures and more severe storms expected with global warming. Principle concerns should be the preservation of large trees and green swales to accomodate flooding.

  14. I oppose so-called “affordable housing” projects because they usually remove a number of privately owned units and replace them with units that cost $1 million per unit to buy, rehab or build to modern standards, and subsidize the rent for 30 years. It also creates government dependents and reduces incentive to improve their incomes. My proposal is to allow zoning changes so that some (not all) larger apartments (like triple-decker units) can be subdivided into two smaller units with “naturally lower” rents, units much better suited to today’s smaller households. In Boston, 60% of all renter households are just one or two persons, and when they move to a smaller unit, the release their former large unit! The potential supply of units of all sizes is great. Owners will do this subdivision because it is low-cost, all the infrastructure is in place, only a few doors, partitions, and a new kitchenette and bathroom are needed, and it involves little or no change to the exteriors of our historic multifamily housing. It will improve owners’ incomes modestly, so no subsidies needed, no rent control needed. I have proposed this idea since August of 2019, and no one picks up on it. Why not?

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