• 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.


MBTA Communities

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

special permit;


3. Allow for transferred development rights;


4. Establish smart growth or starter home districts pursuant to M.G.L. c.

40R; or


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.”


Special Permits

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.


Appeal Bonds

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.”


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