Approximately 11 months after Governor Baker signed an omnibus economic development package into law, the Department of Housing and Community Development (DHCD) has issued draft guidelines for the 175 municipalities affected by the bill’s “Housing Choice” zoning reforms. A portion of the Housing Choice legislation codified at Section 3A of Chapter 40A, the Massachusetts Zoning Act, requires that every “MBTA Community” must have at least one zoning district of reasonable size in which multifamily housing is permitted as of right. In addition, the district must:
- be without age restrictions and suitable for families with children;
- have a minimum gross density of 15 units per acre; and
- be located not more than half a mile from a commuter rail station, subway station, ferry terminal, or bus station, if applicable.
MBTA communities that do not comply with the new Section 3A mandate are not eligible for funds from the Housing Choice Initiative, Local Capital Projects Fund, or MassWorks Infrastructure Program. DHCD may also consider non-compliance when making other discretionary grant awards.
Public comment period on the draft guidelines will end on March 31, 2022 (comment form available here). Final guidelines will be issued in summer 2022. Currently, the draft guidelines address the following elements of Section 3A.
What is an MBTA Community?
MBTA communities are identified in an existing statute, M.G.L. c. 161A. They are either communities served by ferry, rail, light rail, or bus services, or adjacent communities that abut a city or town that hosts MBTA service (see a state provided map of MBTA Communities here). Since Boston is exempt from the Zoning Act, the requirements of Section 3A do not apply to the city.
What type of zoning is deemed “as of right”?
Construction and occupancy of multifamily housing must be permitted without the need for any discretionary permits (i.e., a special permit or variance). Site plan review may be conducted for site layout, vehicular circulation, and access, but may not be used to deny a project that is permitted by right.
What is a “reasonably sized” multifamily district?
According to the draft guidelines, “[o]bjective differences in community characteristics must be considered in determining what is ‘reasonable’ for each community.” However, each MBTA Community must provide at least 50 acres of multifamily zoning. An overlay zone may be used, but at least one portion of the overlay district land areas must be at least 25 acres in size. Only districts five acres or more can count toward the remainder of the 50-acre minimum.
A compliant district must also achieve a designated “unit capacity” — the number of multifamily units that can be built as of right in the multifamily district. Unit capacity is based on a specified percentage of the community’s existing housing stock. The percentage ranges from 10% for adjacent communities to 25% for communities with rapid transit services. A municipality must calculate the number of multifamily units that are developable by right considering any applicable height limitations, lot coverage limits, and other zoning or environmental constraints. If the number of potentially developable units does not equal or exceed the municipality’s unit capacity, then the district must be enlarged or the development constraints removed to increase the number of units that may be developed by right.
The draft guidelines also address the following necessary features of a compliant zoning district.
Minimum gross density: According to M.G.L. c. 40A § 3A, multifamily districts must have a minimum gross density of 15 units per acre. Gross density is measured in terms of the district as a whole — a community may provide subdistricts with differing densities as long as there is a district-wide average of 15 units per acre.
Families with children: According to the Guidelines, a district is suitable for families with children “as long as the zoning does not require multifamily uses to include units with age restrictions and does not place any limits or restrictions on the size of the units, the number of bedrooms, the size of bedrooms, or the number of occupants.”
Distance from transit: Section 3A requires that a multifamily district is within half a mile of transit, if applicable. If only some of the community’s land is within half a mile of a transit station, then DHCD will consider the district compliant if, without compelling circumstances, at least half of the district is within half a mile of the transit station. In communities where no land is within half a mile of a transit station — which is likely in many adjacent communities — then the multifamily district may “be located in an area with reasonable access to a transit station based on existing street patterns, pedestrian connections, and bicycle lanes, or in an area that otherwise is consistent with the Commonwealth’s sustainable development principles.” For example, the district may be located in an existing village center or include underused facilities available for redevelopment.
Determination of compliance: The guidelines also address the material that a municipality must submit to the DHCD to receive a “determination of compliance.” The determination may be sought for a district that was in existence before or after Section 3A was adopted. The Guidelines also outline how an MBTA community without a Section 3A-compliant multifamily district can apply for “interim compliance” status. The interim compliance application must include an action plan and timeline for addressing necessary zoning changes. To maintain interim compliance with Section 3A, an MBTA community must submit either an action plan for compliance or a complete request for a determination of compliance by December 31, 2022.