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01.28.2021 | Legal Advisory

On January 14, 2021, Governor Charlie Baker signed into law An Act Enabling Partnerships for Growth (the “Act”). The Act is a comprehensive economic relief and stimulus bill that will affect a multitude of industries across the Commonwealth. Included within the Act are Governor Baker’s long-awaited Housing Choice legislation and other provisions intended to spur housing development and economic growth. This advisory summarizes key changes to Massachusetts zoning law.

Simple Majority Vote for Certain Zoning Amendments and Special Permits

Prior to the Act, all special permits and changes to zoning by-laws or ordinances required a 2/3 vote to be approved. This voting threshold has proved to be problematic for project proponents and advocates of particular zoning changes, as a special permit or zoning amendment could have the support of a majority of the members of the applicable local governing body but ultimately fail to obtain the 2/3 vote required for approval. The Act changes that required vote from 2/3 to a simple majority for certain zoning amendments and certain special permits.

Zoning amendments that are now subject to a simple majority vote include zoning amendments that:

• allow as of right or by special permit accessory dwelling units;
• allow as of right open space residential developments;
• allow as of right or by special permit multi-family or mixed-use developments at an “eligible location,” which is defined as an area that by virtue of its infrastructure, transportation access, existing underutilized facilities, or location is a highly suitable location for residential or mixed-use smart growth zoning districts or starter home districts, including areas near transit stations such as rapid transit, commuter rail, bus or ferry terminals, or areas of concentrated development such as town and city centers and other existing commercial districts in cities and towns and existing rural village districts;
• allow by special permit an increase in the permissible density or intensity of use in a multi-family or mixed-use development;
• allow by special permit a reduction of the required parking for residential or mixed-use developments;
• allow for natural resource protection zoning or the transfer of development rights if such zoning amendments promote greater concentration of development in areas that the municipality deems most appropriate for such development, but will not result in a diminution in the maximum number of housing units that could be developed within the municipality. The Act defines “natural resource protection zoning” as zoning enacted principally to protect natural resources by promoting compact patterns of development and concentrating development within a portion of a parcel of land so that a significant majority of the land remains permanently undeveloped and available for agriculture, forestry, recreation, watershed management, carbon sequestration, wildlife habitat, or other natural resource values;
• modify local regulations concerning 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 under existing zoning; or
• adopt a smart growth zoning district or starter home zoning district in accordance with Chapter 40R.

However, the Act does not allow zoning amendments that are not specifically limited to the above to take advantage of the simple majority voting threshold.

With respect to special permits, a simple majority vote is now required for special permits issued for the following:

• Multi-family housing that is proposed within ½ mile of a commuter rail station, subway station, ferry terminal, or bus station, provided that not less than 10% of the housing is affordable to and occupied by households with annual income less than 80% of Area Median Income and whose affordability is assured by a minimum 30-year affordable housing restriction;
• Mixed-use development in centers of commercial activity within a municipality, subject to the same affordability requirements referenced above for multi-family housing; or
• A reduced parking space to residential unit ratio requirement if the reduction results in the production of additional housing units.

By reducing the voting threshold for these zoning amendments and special permits, owners and developers will have a greater chance of obtaining local entitlements for their projects, particularly those with a large multi-family or transit-oriented development component.

Multi-Family Zoning by Right in MBTA Communities

The Act imposes new multi-family zoning requirements that will impact nearly all communities within the Greater Boston area and eastern Massachusetts. For those communities that are specifically identified in the MBTA’s enabling legislation in Chapter 161A or have otherwise been designated by the MBTA as an “other served community” (collectively, “MBTA Communities”), such communities must now have a zoning by-law or ordinance that provides for at least one zoning district of reasonable size in which multi-family housing is allowed as of right with no age restrictions and that is suitable for families with children. The Act requires each such zoning district to have a minimum gross density of 15 units per acre and be no more than ½ mile from a transit station. Measuring gross density requires including land occupied by public rights-of-way and any recreational, civic, commercial, and other nonresidential uses, and the minimum gross density may be subject to further limitations under the Massachusetts Wetlands Act and Title 5 regulations.

Even though MBTA Communities are now required to have at least one zoning district satisfying the above requirements, adopting such districts will still require an MBTA Community to formally amend its zoning by-law or ordinance. The Act does not specify whether such a zoning amendment would require a 2/3s or simple majority vote. However, given that the minimum criteria for MBTA Community zoning districts appear to also satisfy the requirements for being an “eligible location” for multi-family housing or mixed-use development, it is likely that the adoption of such a zoning district will only require a simple majority vote.  

If an MBTA Community fails to comply with this new zoning requirement, the Act imposes significant state funding penalties. These communities would no longer be eligible for funding from the Governor’s Housing Choice Initiative, the Local Capital Projects Fund, and the MassWorks infrastructure program.

Posting Bonds in Zoning Appeals

The Act amends Section 17 of Chapter 40A to allow a court to require a plaintiff who appeals a special permit, variance, or site plan to post a surety or cash bond of up to $50,000 to pay costs if the court finds that the harm to the defendant or the public from the delays caused by the appeal outweighs the financial burden to the plaintiff. The changes to Section 17 also instruct the court to consider the relative merits of the appeal and the relative financial means of the plaintiff and the defendant. 

The Act only identifies appeals of special permits, variances, and site plans as cases in which courts may require a bond. The Act does not contain language expressly addressing appeals of comprehensive permits issued under Chapter 40B or appeals of zoning board decisions on appeals from determinations made by the building inspector.

Notably, the Act adds appeals of site plan decisions as decisions that might require a bond. Because site plan decisions were not created by statute under Chapter 40A, there has been uncertainty as to whether they are appealable pursuant to Section 17. While the Act does not answer this question definitively, this new language provides some additional support that they may be. 

Special Permit Standard for Reduced Parking for Residential Developments

The Act also provides a different special permit standard for reduction in parking that municipalities may adopt if they choose. A zoning by-law ordinance may provide that special permits may be granted for reduced parking spaces for a residential development after a finding by the special permit granting authority that the public good would be served and that the area in which the development is located would not suffer a substantial adverse effect from such diminution in parking. Project proponents and other interested parties will need to track local zoning by-law and ordinance amendments to determine if a city or town elects to adopt this alternative special permit standard.

Modifications to Chapter 40R Smart Growth Zoning

Chapter 40R permits cities and towns to adopt smart growth zoning districts and starter home zoning districts in order to allow denser housing production as of right. The Act made a few key changes to Chapter 40R:

• As mentioned above, the adoption of a smart growth zoning district or starter home zoning district by a city or town will now require only a simple majority vote.
• Although the Act continues to allow specific projects within a district to provide housing units restricted exclusively for the occupancy of elderly, disabled, or for assisted living units, the Act now requires the state’s Department of Housing and Community Development (“DHCD”) to adopt regulations limiting the percentage of these units that qualify the municipality for density bonus payments.
• The Act authorizes DHCD to impose potential limitations regarding mixed-use developments within a smart growth district or starter home district. Additionally, within a starter home zoning district, mixed-use developments shall only be permitted if the proposed density achieves a minimum of four units per acre.
• In the event a municipality repeals or amends its applicable zoning ordinance so that any smart growth or starter home zoning district is eliminated, such repeal or amendment will not be effective until the municipality returns state incentive payments permitted under Chapter 40R in excess of the number of housing units that have been built or that will remain developable within the applicable district. DHCD will also have authority to enact regulations to allow extension for good cause of the three-year period for returning such incentive payments in the event construction has not commenced on an approved project during such time period. 

What’s Next?

The Act requires DHCD, in consultation with the MBTA and the Massachusetts Department of Transportation, to issue guidelines to determine if an MBTA Community is in compliance with the Act’s provisions requiring the enactment of MBTA Community zoning districts. DHCD is also expected to issue regulations implementing some of the Act’s changes to 40R smart growth and starter home zoning districts discussed above.

Nutter will continue to follow these developments and others as cities and towns begin to adopt these zoning changes. If you have any questions about these new regulations, please do not hesitate to reach out to anyone on the Nutter team.

This advisory was prepared by Marianne Ajemian, David Libardoni, Mary Marshall, Valerie Moore, and James Ward in Nutter’s Real Estate Department. For more information, please contact Marianne, David, Mary, Valerie, James, or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.