Abigail George
In August 2024, Governor Healey signed the Affordable Homes Act (“the Act”) into law. The Act is a historic piece of
legislation, authorizing $5.16 billion in spending over five years alongside nearly 50 policy initiatives to encourage housing production. This article touches on one. The Act focuses on increased housing supply for low to moderate-income residents. Sections 121 and 122 address “Surplus Real Property for Residential Development,” addressing the development of state-owned land for housing.
Alongside the Act, the Healey-Driscoll
administration has created a state Land for Homes Initiative. It focuses on
increasing the Commonwealth’s housing supply by making surplus state land
available for residential development under relaxed conditions. As
part of this initiative, the state provides a database of upcoming, planned,
and available land parcels suitable for development. Currently, the initiative
has made available more than 725 acres for development, representing an
anticipated 5,435 housing units. The database can be accessed at https://www.mass.gov/info-details/state-land-for-homes.
Last March, the Executive Office of Housing
and Livable Communities (EOHLC) promulgated draft regulations for 760 CMR
77.00, specifying the conditions for development of this surplus land. These
regulations were finalized and became effective on July 17, 2026. In essence, 760 CMR 77.00 provides authority
to the state Division of Capital Asset Management & Maintenance (DCAMM) and
host municipalities to impose conditions on new developments while limiting
excessive requirements that slow the pace of development.
Most significantly, municipalities are not
allowed to impose conditions which will result in an effective density of fewer
than four dwelling units per acre. The regulations are summarized below.
Surplus Real Property. 760 CMR 77.00 allows for as-of-right
Residential Development of “Surplus Real Property” conveyed by the DCAMM
Commissioner (Commissioner). As defined in Section 121(a) of the AHA, Surplus Real Property
includes property that is either (i) real property of the Commonwealth
determined by the Commissioner to be surplus or (ii) real property of a public
agency determined by the agency itself to be surplus.
Also as defined there, a public agency is
“department, agency, board, commission, authority, or other instrumentality of
the Commonwealth,” excluding “cities, town or counties or any boards,
committees, commissions or other instrumentalities thereof.”
Effective Density. Residential Developments on Surplus Property
must achieve a minimum of four (4) housing units per acre. In calculating the
effective density, all parties must include the entire Lot Area without
exclusion. This includes open bodies of water and any public or private rights
in the Lot Area. Protected use accessory dwelling units (i.e.,
developed pursuant to M.G.L. c. 40A, §6 and 760 CMR 71.00) cannot count toward
the number of units in a Lot Area. Additionally, effective density calculations
cannot be rounded up to achieve the minimum.
Commissioner-Imposed Conditions. The
DCAMM Commissioner may impose additional conditions on the development of
Surplus Real Property for Housing Purposes at the time of Conveyance. These
include:
·
Reuse Restrictions: Any use, restriction, or encumbrance as
defined by the Commissioner (e.g. affordability requirements for housing
developments, mandated clustering to preserve portions of parcel for recreation
or conservation area, etc.).
·
Land Disposition Agreement: Agreement between the Commissioner
and the Developer, through which parties may agree to additional conditions.
Municipality-Imposed “Reasonable Regulations.” Municipalities may,
but are not required, to impose “reasonable regulations” on Residential
Developments of Surplus Real Property. “Reasonable
regulations” are those which (i) pertain to the bulk and height of structures,
lot area, setbacks, open space coverage, building coverage, and site plan
review and (ii) meet the following conditions:
a.
Do not “directly or indirectly” prevent development within the
Effective Density requirement or otherwise make such development “physically or
financially infeasible;”
b.
Do not explicitly or effectively prohibit, or require, any
particular Residential Development Type or bedroom count;
c.
Do not conflict with or supersede any applicable federal law;
d.
Do not impose more than the minimum requirements established by
state or federal law; and
e.
Do not impose any additional local or regional Municipality law,
unless required by the Conveyance.
As part of these
reasonable regulations, municipalities may:
a.
Enforce the terms of a Development Agreement, so long as it does
not conflict with the terms of the Conveyance;
b.
Impose regulations “necessary to ensure the Developer’s
compliance with the terms of the Conveyance;”
c.
Allow additional non-residential uses on Surplus Real Property,
such as mixed-use development, and provide incentives to encourage such use;
d.
Impose the minimum requirements established by any state or
federal law; and
e.
Conduct Site Plan Review, limited to (i) aspects of a
Residential Development that “relate directly to the public’s safety, health,
and welfare” and (ii) additional aspects that are otherwise provided for a
Reuse Restriction, an Agreement, or voluntarily agreed to by the Developer.
Site Plan Review shall neither “unreasonably delay” nor impose “infeasible or
impractical conditions” on Residential Developments.
Municipalities may
not:
a.
Enforce general Municipal Regulations on Surplus Real Property
where they are “inconsistent or in conflict with or exceed the scope of
land-use controls described” in the AHA or 760 CMR 77.00;
b.
Require additional non-residential uses on Surplus Real
Property; or
c.
Enforce a maximum density or dwelling unit cap, unless provided
by the Conveyance.
Abigail George is a
law clerk at McGregor Law Group and a recent graduate of the Boston University
School of Law.
