• Miyares and Harrington LLP

Rules for Smart Growth Have Changed

Our readers will remember that, in our January issue, we discussed

amendments to the Zoning Act, M.G.L. c.40A, brought about by Chapter 358 of

the Acts of 2020, An Act Enabling Partnerships for Growth. We noted then that

the amendments to M.G.L. c.40A, §5, changed the quantum of vote to

establish smart growth or starter-home zoning districts pursuant

to M.G.L. c.40R to simple majorities instead of 2/3rds of Town Meeting or other

legislative body.


As smart growth zoning grows in popularity across the Commonwealth, keep in

mind these other amendments to M.G.L. c.40R, §§1-14, Smart Growth Zoning

and Housing Production. Sections 27 through 45 of Chapter 358 of the Acts of

2020 amended M.G.L. c.40R by adding important new provisions:


  • The Department of Housing and Community Development (“DHCD”) must adopt regulations, for housing units in a smart growth or starter home zoning district and that are exclusively for elderly or disabled residents or for assisted living, that limit the percentage of such housing which may be used to qualify the municipality for density bonus payments under M.G.L. c.40R, §9. In addition, 25% of the housing units that are restricted to the elderly or disabled residents or for assisted living and that are within a smart growth zoning district must be affordable housing (M.G.L. c.40R, §6(a)(8));


  • The Department of Housing and Community Development (“DHCD”) must adopt regulations, for housing units in a smart growth or starter home zoning district and that are exclusively for elderly or disabled residents or for assisted living, that limit the percentage of such housing which may be used to qualify the municipality for density bonus payments under M.G.L. c.40R, §9. In addition, 25% of the housing units that are restricted to the elderly or disabled residents or for assisted living and that are within a smart growth zoning district must be affordable housing (M.G.L. c.40R, §6(a)(8));


  • DHCD may impose limitations on zoning for mixed-use developments in smart growth districts. Additionally, mixed use developments may be permitted in starter home zoning districts only if the proposed density achieves a minimum of four units per acre (M.G.L. c.40R, §6(c)); and


  • If a municipality amends its zoning requirements in a manner that reduces the number of developable units in a smart growth or starter home zoning district, the municipality must return to DHCD the portion of any zoning incentive payment that is in excess of what would have initially been awarded for the remining developed or developable housing units. Repayment is due to DCHD within 60 days of receiving written approval of such a zoning amendment (M.G.L. c.40R, §14(b)).



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