The Potential Impact Of The Recently Enacted Enabling Partnerships For Growth Act On Local Zoning And The Development Of Residential Real Estate In Massachusetts

Will the statutory zoning changes recently enacted by the Massachusetts Legislature result in a rush of new development and start to address the goal of increasing housing in the Commonwealth?

Prospects for growth in housing and residential real estate development in Massachusetts have the potential to expand significantly following the passage of a new Massachusetts law known as An Act Enabling Partnerships for Growth (the “Partnership for Growth Act”). The Act contains provisions amending several important aspects of zoning law under Massachusetts General Laws, Chapter 40. Specifically, the Act: 1) mandates important specific changes in local zoning regulations, including procedural rules; 2) changes some important aspects of the zoning decision appeal process; 3) revises the procedure of amending local zoning by-laws in specified contexts; and 4) revises several important aspects of Chapter 40R Smart Growth Zoning.

Specific/Mandated Zoning Changes.

Multi-Family Zoning by right in MBTA communities.

The Act directs “MBTA communities” (most of the cities and towns in eastern Massachusetts are legally defined as MBTA communities) to amend their zoning ordinance to include “at least one district… in which multi-family housing is permitted as of right”. Additionally, the Act prohibits the imposition of age restrictions within the required multi-family zone to encourage housing suitable for families; mandates a minimum gross density of 15 units per acre; and shall be located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station. MBTA communities that fail to comply will not be eligible for funds from the Housing Choice Initiative, the Local Capital Projects Fund or the MassWorks infrastructure program.

Reduced Special Permit Standards for Parking in Residential Developments.

The Act permits municipalities to adopt different special permit standards for reduced parking in residential developments than are currently required under the Massachusetts Zoning Enabling Act set forth in Chapter 40. Specifically, zoning ordinances may be amended to allow for reduced parking special permits if the public good would be served without substantial adverse effects on the area in which the residential development located.

Reduction in the Approval Threshold for Certain Type of Special Permits.

The Act reduces the two-third vote approval threshold to a simple majority for special permits issued for the following:

• Multifamily housing that is located (proposed) within 1/2 mile of a commuter rail station, subway station, ferry terminal or bus station; or mixed-use development in centers of commercial activity within a municipality, provided, that not less than 10 per cent of the housing shall be affordable to and occupied by households whose annual income is less than 80 per cent of the area wide median income as determined by the United States Department of Housing and Urban Development and affordability is assured for a period of not less than 30 years through the use of an affordable housing restriction as defined in section 31 of chapter 184; and
• A reduced parking space to residential unit ratio requirement, pursuant to this section; provided, that a reduction in the parking requirement will result in the production of additional housing units.

Zoning Decision Appeal Process Procedural Change. Posting Bonds in Zoning Appeals.

The Act amends Section 17 of Chapter 40A to enable courts to require a plaintiff appealing approval of a special permit, variance, or site plan to post a bond of up to a $50,000.00 to secure the payment of costs if the court finds that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or cash bond on the plaintiffs. Developers will likely see this as a welcome change, but there may be some procedural drawbacks in that a court might dismiss a case due to a plaintiff’s failure to post a bond which would constitute a final judgment that the plaintiff could appeal potentially resulting in an expanded process.

Changes in the Process to Amend Zoning Codes.

The Act amends Section 5 of Chapter 40A by reducing the requirement that zoning amendments must be approved by two-thirds vote of the relevant local government authority to a simple majority in the context of amendments in the following specified zoning contexts:

• Amendments that allow as of right or by special permit accessory dwelling units;
• Amendments that allow as of right open space residential developments;
• Amendments that allow as of right or by special permit multi-family or mixed-use developments in areas that are highly suitable for residential or mixed-use/smart growth zoning districts;
• Amendments that allow special permits to increase density or intensity in mixed use or multi-family developments;
• Amendments that allow reductions in parking requirements by special permit; and
• Adoption of smart growth or starter home zoning districts pursuant to Chapter 40R.

Changes to Chapter 40R Smart Growth Zoning.

The Act made several changes to Chapter 40R (which was enacted to encourage cities and towns to establish new overlay zoning districts to promote housing production and smart growth development) including:

• A Chapter 40R smart growth or starter home district may be adopted by a simple majority vote;
• A Chapter 40R smart growth or starter home district may not impose age restrictions, unless in compliance with regulations to be adopted by the Department of Housing and Community Development and not less than 25 percent of the housing units are reserved for the elderly, the disabled or assisted living; and
• In a starter home district, a mixed-use development shall only be permitted if it achieves a minimum density of 4 units per acre.

By and large the Act is merely the opening scene in what is likely to be a period of significant changes in zoning law and development opportunities for savvy, well informed, developers. The anticipated changes to local zoning laws will result in new opportunities to develop residential real estate in areas previously deemed undevelopable. Seizing these opportunities will require a sophisticatssed understanding of existing zoning laws as well as staying abreast of zoning changes as they are adopted by city and town zoning authorities. Darrow and Everett will monitor changes in local zoning laws as they are enacted and provide our clients valuable insights into the new opportunities that will result.

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This alert should not be construed as legal advice or a legal opinion on any specific facts or circumstances. This alert is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal question you may have. We are working diligently to remain well informed and up to date on information and advisements as they become available. As such, please reach out to us if you need help addressing any of the issues discussed in this alert, or any other issues or concerns you may have relating to your business. We are ready to help guide you through these challenging times.