Robert M. Ruzzo
Many believe that a brief three paragraph provision buried deep in a dense economic development bill passed by the legislature last January has the makings of a true
revolution in Massachusetts land use regulation. The legislation added a new section (3A) to Chapter 40A, the Commonwealth’s doddering, wizened zoning enabling act. By offering municipalities incentives to create transit friendly “as of right” (no variance or special permit required) multifamily housing zoning districts, the measure potentially represents the greatest incursion upon local control over land use decision making since the passage Chapter 40B in 1969. It appears the Massachusetts Municipal Association (MMA) thinks so. Media reports at the time of the bill’s passage indicated the MMA unsuccessfully urged Governor Baker to veto the measure.
Just what does this new Section 3A actually do? The tersely worded insert provides that any “MBTA Community” (a term not defined by the statute) “shall have” a local zoning regulation that “provides for at least one district of reasonable size in which multifamily housing is permitted as of right.” Not much to hang one’s hat on there. The only statutory attributes ascribed to these districts are that they must: (1) have a minimum gross density of 15 units per acre (subject to limitations of the Wetlands Act and Title V); (2) be located within 0.5 miles of a commuter rail station, subway station, ferry terminal or bus station: and (3) contain no age restrictions and “be suitable for families with children.” The state’s Affordable Housing Law (Chapter 40B), once described by one of its own drafters as “vague, even obtuse” seems positively verbose by comparison. This lack of statutory specificity will not be an excuse for municipalities; those that do not comply with the law’s requirements will not be eligible for state funding from the Local Capital Projects Fund, the Housing Choice Initiative, and most importantly, the hefty “MassWorks” infrastructure grant program, a program that has awarded between $66 and $72 million in grants to municipalities in each of the last three fiscal years
No doubt exhausted by its labors, the legislature tasked the Department of Housing Community Development (DHCD) in consultation with the MBTA and the Massachusetts Department of Transportation (MassDOT) with developing guidelines to determine community compliance with the new statute. In December, DHCD issued draft guidelines that are open to public comment until the end of this month (March 31, 2022).
This article will focus on how the guidelines define exactly what a “reasonably size” is for such a zoning district. Working our way through this exercise first entails understanding that the guidelines define an "MBTA community" more broadly than just a municipality with a transit stop of some kind. The definition also includes municipalities adjacent to communities with such a transit stop. When these “MBTA adjacent communities” are taken into account, a total of 175 cities and towns are impacted by the new law.
Reasonableness is then addressed in two components. The first is the area of the district. The guidelines define reasonable size as “not less than fifty contiguous acres of land;” but the inquiry does not end there. DHCD will also examine the district’s “multi-family unit capacity.” Loosely translated, that means DHCD wants to know how many units of multifamily housing can be developed within the new as of right district. How will DHCD do that? By looking at both the size of the community (defined by existing housing units) and the nature of each municipality’s transit service.
A municipality's total number of existing housing units is determined by decennial census figures. That number is then multiplied by a percentage determined by the type of transit service in or within 0.5 miles of the subject community. The percentage utilized is far higher for “subway or light rail communities” (25%) than it is for “MBTA adjacent communities” (10%), with bus (20%) and commuter rail (15%) communities falling in between. To calculate capacity, let’s use Melrose as an example.
The city’s total of 12,614 existing housing units is multiplied by 25%, since Melrose falls into the “subway or light rail” (rapid transit) cohort of municipalities. Thus, a “reasonably sized” as of right zoning district in Melrose needs to be large enough to yield 3,154 new units. (12,614 x .25=3,614). Subdistricts with different densities are permitted. Note that for smaller communities, the minimum multi-family capacity number can never dip below 750 units. For additional nuance, please examine the guidelines.
The draft guidelines also answer many (but not all) of the questions left open by the statute. Got questions about how to deal with parkland or public rights of way? Wondering when these guidelines become effective? Good questions. Check out how the guidelines address these issues. Got war stories about how a seemingly straightforward “site plan review” process became an ulcer inducing exercise? Then by all means comment on the guidelines and perhaps suggest the inclusion of a reasonable time limit for the site plan review process discussed therein.
What will be the ultimate impact of new section 3A? Is it truly revolutionary? Probably not. Remember, as the guidelines painstakingly note, the determination of a district’s housing capacity “is not a mandate to construct a specified number of housing units” (emphasis in original). Some communities may simply forgo (or continue to forgo) competing for MassWorks grants and other state assistance. Other municipalities may well be able to draw districts that require little or no new housing to be built in order to satisfy the guidelines.
Past land use “revolutions” have not lived up to their press clippings. Neither cluster zoning nor Chapter 40R (ouch!) turned out to be the panaceas that they were initially touted to be. Yet each is a useful tool. Given the decades it has taken to work our way into our current housing production conundrum, the new Section 3A at least has us focusing on the most rational way to begin building our way out.
Co-chair of the
REBA affordable housing section, Bob Ruzzo is a former Massachusetts Deputy
Secretary of Transportation. He also served as the Deputy Director/Chief
Operating Officer at both MassHousing and MassDevelopment. His column, “The Housing Watch…” will be a
regular feature in REBA News and on the REBA Blog He can be reached at bob@bobruzzo.com.
