- Miyares and Harrington LLP
The Zoning Act is Loosened for "Housing Choice"
Zoning Act Amendments: After much anticipation the Zoning Act, M.G.L. c.
40A, has been amended to include what some are referring to as “housing
choice” measures. H.5250, signed by the Governor on January 14, contained
an emergency preamble and is now in effect. The amendments strive to
improve housing availability by (1) requiring zoning which permits multi-family
housing in communities served by the MBTA; (2) reducing, from two-thirds to a
simple majority, the approval needed by Town Meeting or City Council
members for amendments to certain zoning bylaws pursuant to M.G.L. c. 40A,
§5; (3) reducing, from two-thirds to a simple majority, the approval needed for
the grant of certain special permits pursuant to M.G.L. c. 40A, §9; and (4)
providing a reviewing Court the discretion to require a bond from a plaintiff
appealing certain special permits, variances, or site plan approvals.
The legislation inserts a new Section 3A into the Zoning Act. It provides that a
community served by the MBTA must provide at least one reasonably sized
zoning district in which multi-family housing is permitted as of right, “without
the need for a special permit, variance, zoning amendment, waiver or other
discretionary zoning approval.” Such a district must have a minimum housing
density of 15 units per acre and be no more than one half mile from the
nearest MBTA station.
An MBTA community that fails to comply will not be eligible for funds from (1)
the Housing Choice Initiative; (2) the Local Capital Projects Fund; or (3)
the MassWorks infrastructure program.
Zoning Bylaw Amendments
Up to now, M.G.L. c. 40, §5, required a two-thirds vote of the legislative body
for the adoption or amendment of zoning bylaws. The legislation reduces that
to a simple majority for zoning bylaws that:
1. Allow for multi-family housing, mixed-use developments, accessory
dwelling units, or open space residential developments as of right;
2. Allow for multi-family housing, mixed-use developments, increases in
density, accessory dwelling units, and reductions in required parking by
3. Allow for transferred development rights;
4. Establish smart growth or starter home districts pursuant to M.G.L. c.
5. Modify dimensional and other regulations to allow for additional housing
units beyond what would otherwise be permitted.
“Any amendment that requires a simple majority vote shall not be combined
with an amendment that requires a two-thirds majority vote.”
The legislation provides that zoning ordinances or bylaws may provide for
reduced parking space to residential unit ratio requirements where it serves the
public good. The amendments also provide that a special permit may be
issued by a simple majority of the Special Permit Granting Authority rather than
the otherwise required two-thirds supermajority for the following projects:
1. Multi-family housing within a half mile of a MBTA station if 10 percent of
the units are affordable (at 80 percent of AMI) for at least 30 years;
2. Mixed-use developments in population centers if 10 percent of the units
are affordable (at 80 percent of AMI) for at least 30 years; and
3. Reduced parking to unit ratio requirements if the reduction results in the
production of additional units.
Finally, the legislation amends c. 40A, §17, to permit a court to require
a bond from a plaintiff who appeals the grant of a special permit, variance, or
site plan approval. This is an expansion of the previously existing authority
which required a bond in the range of $2,000-15,000 for appeals of subdivision
plan approvals. The court may require a surety or cash bond of not more than
$50,000 upon a finding 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.”