After years of trying to make more substantial changes to Massachusetts’ state wide zoning laws, state lawmakers finally made history when Governor Charlie Baker signed into existence the greatest shake up in legislation on state zoning rules in the last 40 or 50 years. For the 350 odd municipalities strung across the state, the changes should lead to faster decisions on new housing developments, better provision of more affordable housing for families and promote new housing developments closer to public transit hubs.
The changes that came into effect on January 16th this year finally broke the legislative deadlock that had stalled progress for so long. So, what has changed and how will this affect new zoning decisions from now on? Some of the more significant changes in the legislation are discussed below.
Decisions are no longer dependent on a two thirds majority
Smaller municipalities in Massachusetts control their own zoning through bylaws and local ordinances (with the exception of Boston, which can make its own legislation on zoning), but are still tied to the regulations contained by the state’s Zoning Act, General Laws Chapter 40A. To speed up decision making, one major shake-up in the new legislation is to allow municipalities, towns and small cities to approve a development by a simple majority rather than what has been the practice up to now, which is a minimum two thirds majority. Decisions on new housing development have often been held up for years or have been completely stymied by what has been in effect a minority vote opposing the development.
Specific zoning decisions which now only require a simple majority vote by a town or city council include the following:
- changes to the “bulk and height of structures, yard sizes, lot area, setbacks, open space, parking and building coverage requirements to allow for additional housing units beyond what would otherwise be permitted”;
- permission in eligible locations for the development of mixed use development or multi-family housing “as of right”;
- permission as of right for accessory dwelling units on the same lot;
- permission by special permit for an increase in the population density in any proposed mixed use development or multi-family housing development;
- permission as of right granted for more open space residential development;
- fewer requirements for parking in any mixed use or multi-family developments
The new term “as of right” adopted by the changes in the Zoning Act refers to the fact that there is now no need for discretionary zoning approval for that particular activity. The adoption of the term is designed to make it easier to avoid litigation about exactly what the term “multi-family housing” or “mixed use development” actually mean when zoning applications are being discussed.
The term “eligible locations” refers to locations close to a public transportation hub or city center as described further below.
Requirement in MBTA Community municipalities to provide zoning for multi-family housing
Section 3A of the Zoning Act is a new piece of legislation which establishes a requirement “as of right” for all 176 municipalities served by the Massachusetts Bay Transit Authority (MBTA) to ensure zoning provides for at least a single reasonably sized multi-family housing district.
The new section contains a stipulation that such zoning districts should be within 0.5 miles of a bus station, ferry terminal, subway station or suburban rail station. If MBTA municipalities fail to comply with the new rules, then they could forfeit eligibility for state infrastructure funds, including MassWorks priority grants. The definition of which municipalities are in the MBTA Community area may be expanded in future to include other than the 176 that are listed in the new section of the Zoning Act.
The additional change in the need for a two thirds majority to be waived in favor of a simple majority in decision making about zoning for multi-family housing and mixed use residential developments as described above is permitted as long as the new developments proposed include a minimum of 10% affordable housing in the mix.
Reduction of parking requirements by special permit made easier
Parking requirements in new housing developments have often made an increase in housing density in the past more difficult. Changes to Section 9 of the Zoning Act now allow a reduction in the parking requirements for a new development as long as they are deemed “in the public good” and that the new development wouldn’t “substantially suffer” if there was less parking available.
Bond required before an appeal against a zoning decision is heard
The last major change in the Zoning Act is designed to reduce the temptation to hold up zoning decisions unnecessarily by court appeals. Appeals now have to be made after a bond of $50,000 has been paid by plaintiffs challenging a decision. The change should help to pay for court costs (presumably born by defendants) if the appeal is lost and the defendants have suffered “harm” because of the delay. The new bond requirement has been made in Section 17 of the Zoning Act and should defer some potentially meritless lawsuits that seek to delay or prevent housing developments permitted under the new changes to the Act.
Should you have any questions or concerns, please contact The Law Offices Of Richard Mucci for a free consultation.