Robert M. Ruzzo
This August, when the Baker-Polito administration released long anticipated final guidelines for new Section 3A of the Commonwealth’s Zoning Act (Chapter 40A), optimistic assessments
of the new provision’s potential impact abounded. Section 3A requires 175 “MBTA Communities” to have at least one reasonably sized zoning district where multi-family housing is allowed “as of right.”
Such a
reception should not have come as much of a surprise. Frustrated by the continuing
failure of the legislative ball of purulence that is our current Zoning Act, housing
advocates have chased moonbeams for decades in the hopes of boosting the
state’s meager rate of housing production.
Like
economists who have successfully predicted nine out of the last five recessions
(maybe they are on track this time), housing advocates have consistently overestimated
the change making ability of adopting new land use regulatory techniques. Two
such examples for the would-be open space residential district (cluster) zoning
and inclusionary zoning. These once bright shiny new tools were touted as the
key to more sustainable and more affordable housing development in the
Massachusetts. Please don’t misunderestimate the Housing Watch. It’s not
that these tools aren’t valuable, they are; but they have not moved the dial one
whit when it comes to the comparative affordability of our state’s housing when
stacked up against other states competing to attract or grow the same companies.
Similarly, various
legislative proposals such as Chapter 40R, Chapter 40S, and the starter homes zoning
district initiative have been paraded through streets strewn with flower petals
upon passage. One could even be forgiven for imaging a gaunt figure whispering
“Memento Mori” as these enactments enjoyed their moment of triumph. Each
was touted as a key to “bending the curve” and improving the affordability
equation in Massachusetts.
The Housing Watch stands as guilty as the rest,
particularly with respect to Chapter 40R. Despite uncertain funding sources,
the tardiness in adding the Chapter 40S “school impact insurance” (to say
nothing of the convoluted results of its formula), hopes for this zoning
approach aimed at redevelopment and maximizing transit investments still burned
brightly. Yet, as Bill Parcels (remember him?) used to say, “you are what your
record says you are.” Candidly, the record says that Chapter 40R is not much. The
latest statistics available (from 2019) on the DHCD website indicate that
Chapter 40R has yielded only a total of 22,213 potential units, out of which a
mere 3,759 have had a building permit issued.
Hopes were
similarly high with respect to a common-sense starter homes district proposal
in 2016. As things turned out, melding this initiative with
the density driven minutiae of smart growth districts literally proved
fruitless. No units have been produced as of today. A new proposal to move the
starter homes district initiative into its own separate chapter (a proposed new
Chapter 40Y) remains stalled (as of this writing) with the Economic Development
bill that ran out of steam at the end of the formal legislative session in
July. The Housing Watch wishes that effort all the best, but would
caution against Dickensian expectations.
So, is the excitement
over the issuance of final guidelines for “as of right” multifamily districts
merely the triumph of hope over experience? Or are there legitimate reasons for
believing this time will be different? Remember, Chapter 40R promised “as of
right” approvals, yet the implementation of that statute became mired in an
array of mind-numbing design standards and doubts about whether the money would
be there for zoning incentive payments.
Still, there are at least
two reasons for optimism.
First, unlike Chapter 40R,
new Section 3A is mandatory, directing that municipalities shall create at
least one reasonably sized multifamily as of right district. Section 3A,
however, contains only modest explicit penalties for a failure to act (municipal
ineligibility for the three grant programs, the most important of which is the
MassWorks grant program). The new administration is likely
going to have to do a lot better than that. If municipalities balk to
any significant extent, assessing how “persuasive” the new administration is
willing to be will be a litmus test for assessing its commitment to housing. Because it is at first blush difficult (though I'm sure not
impossible) to imagine a scenario where a multifamily housing developer would
have standing to challenge municipal obstinance in carrying out this mandate, providing
the proper range of carrots and sticks for communities to act will likely be an
almost exclusively administrative matter. So, the new administration has got
that going for them….
Second, the animus of the
times is different. The inter-relationship of transit investments and housing
density is much more top of mind in Massachusetts than it was when Chapter 40R
was enacted in 2004 (and the Housing Watch still has the bruises to prove it). Nationwide,
notwithstanding the pandemic, automobiles seem on the road to becoming more of a
service rather than an essential good. New generations are growing up with a
distinct animus against what many Americans once viewed as their four wheeled birthright.
That’s unlikely to change. The times and the technique may for once intersect. So,
there is reason for some hope.
Otherwise, it could be
back to the drawing board. Anyone up for another go at rewriting Chapter 40A?
Or maybe, to paraphrase another Bill (one even more famous than Parcells), the fault
may lie not in our statutes, but in ourselves.
