Attorney General Set to Force Compliance with Denser, Transit-Friendly Zoning

As Town Meeting season approaches for many towns across Massachusetts, citizens will vote on zoning articles that seek to address the affordable housing crisis. The Boston Globe cited the high cost of housing as one reason that the Commonwealth lost 110,000 of its nearly 7 million residents since COVID began. Zoning power—or the ability to control “land usages in an orderly, efficient, and safe manner to promote the public welfare”[1]—is a local tool. Each of Massachusetts’ 351 municipalities (292 “towns” and 59 “cities”) sets its own rules for homebuilders to follow.

The tendency of suburban governments to exclude lower-income and multifamily housing has been a common complaint about the zoning process. Acts such as Chapter 40B aimed to force municipalities to allow more affordable housing by streamlining the permit process when less than ten percent of a community’s stock is affordable. The MBTA Communities Zoning Law, passed in January 2021, added Section 3A to the state Zoning Act. It applies to 177 communities near MBTA rail, subway, ferry or bus stations—almost all of eastern Massachusetts and one Cape Cod town. It requires the adoption of zoning districts within a half-mile of MBTA transit that contain “as of right” (that is, without a special permit) multifamily housing with a density of 15 homes per acre. The law also eased the bar for zoning amendments, changing the two-thirds requirement to a simple majority for certain, denser types of housing: multifamily, mixed-use, accessory dwellings, and “open space residential development.” Restrictions on age are prohibited, and housing must be suitable for families with children.

Addressing affordable housing on a town-by-town basis would be a very slow process. And it assumes that all towns actually adopt laws to promote less expensive housing—something they tend not to do when school funding and community character are threatened. The Attorney General has a rubber-stamp role after a local zoning change is passed: it approves or disproves local legislation to ensure consistency with the constitution and laws of the Commonwealth. With the new MBTA Communities Zoning Law, if a community does not enact zoning that complies, it will not be eligible to receive certain forms of state funding. Not willing to rely on the carrot-only approach, Attorney General Andrea Campbell recently announced that there is no “opt-out” and communities that fail to comply “may be subject to civil enforcement action.” Her Advisory also warned that zoning, which has a “discriminatory effect” on protected groups, may violate federal and state fair housing laws.

Communities are taking this new law seriously: as of mid-March, more than 170 have submitted “Action Plans” detailing their “active steps toward achieving compliance” with Section 3A. The guidance provides deadlines ranging from the end of this year to the end of 2025, depending on transit type. Will the new “compliant zoning” encourage the construction of affordable projects? The devil is in the details. The MBTA law requires zoning to allow denser housing, but it does not mandate “affordability.” Department of Housing and Community Development guidelines for Section 3A allow—but don’t mandate—MBTA communities to require affordable units in compliant multifamily zoning districts. Townhomes in wealthy communities often sell for a million dollars.

For communities with water resources and septic systems, there is an important exception. The density requirement does not supersede the Massachusetts Wetlands Protection Act or Title V of the state environmental code. Practically, this means even when compliant zoning allows 15 units per acre, projects are still subject to state and local wetlands and septic rules. The law will not ease permitting in Riverfront or other Wetland Resource Areas – a process that I and my fellow environmental attorneys know well. Guidelines developed by the Department of Housing and Community Development confirm that these limitations may result in housing that is less dense than 15 units per acre. While septic rules can’t be overridden, new housing would have to coincide with expanded sewer service or upgraded wastewater treatment facilities. This will add more pressure and cost to municipalities, developers, or both.

Each of the 177 different towns and cities has unique characteristics and challenges regarding housing development. As one Action Plan-submitting community stated, “availability of [water and wastewater] services does not match up with walkability or any alternative transit.”[2] With their zoning laws now under the microscope, it will be interesting to see how communities react to the MBTA Communities Zoning Law, where and how the Attorney General chooses to enforce it, and whether more affordable housing will follow.

[1] Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 (1973)

[2] Town of Lynnfield Action Plan.