Massachusetts Makes Broad Changes to the Zoning Act

Year after year, the Massachusetts Legislature considers bills to change General Laws Chapter 40A, or the Massachusetts Zoning Act. Many prior changes were fairly minor, but on January 14, 2021, Governor Charlie Baker signed an act making some major changes to the Zoning Act. Several of the changes were taken from Governor Baker’s often-touted Housing Choice bill. Click here for the new legislation. Zoning Act changes start on page 35.

Some of the broadest changes are in the definitions section of the Zoning Act. For example, the term “as of right” is now a defined term identifying activity that does not need discretionary zoning approval. These changes are helpful both to avoid litigation about what terms such as “multi-family housing” and “accessory dwelling unit” mean, and because municipalities often adopt defined terms and other language from the Zoning Act into their zoning codes to assure compliance with the law. Such common language can be helpful to businesses operating in multiple municipalities.

The definition of “MBTA Community” deserves specific mention. This term includes three lists of municipalities set out in General Laws Chapter 161A, Section 1, and any other communities later added. The legislation created a new Section 3A of the Zoning Act that applies only to these municipalities. The new section states that each of these municipalities “shall have a zoning ordinance or by-law that provides for at least 1 district of reasonable size in which multi-family housing is permitted as of right.”

The zoning district must be “0.5 miles from a commuter rail station, subway station, ferry terminal or bus station, if applicable.” Municipalities that fail to comply with the new requirements will no longer be eligible for state funds from the Governor’s Housing Choice Initiative Program (which includes priority grants for MassWorks infrastructure projects), the Local Capital Projects Fund or the MassWorks infrastructure program.

Another notable change is the lower threshold for approving zoning code or bylaw amendments. Under the new legislation, certain zoning amendments now require only a simple majority vote by a town council, city council, or town meeting.

These include:

• Allowing multifamily housing or mixed-use development as of right or by special permit in “eligible locations”
• Allowing accessory dwelling units on the same lot as of right or by special permit
• Allowing open space residential development as of right (homes concentrated in one area to create open space);
• Increasing “permissible density of population or intensity of a particular use in a proposed multi-family or mixed use development” by special permit
• Allowing reduced parking requirements for residential or mixed-use development by special permit
• Modification of 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”

The term “eligible locations” is newly defined. The definition includes development near public transit stations and town centers, and in commercial districts and rural village districts. Notably, development allowed “as of right” can still be subject to site plan approval.

There are also changes to Section 9 of the Zoning Act that governs special permits. Some of the changes reflect new definitions. For example, there is a new standard for granting a special permit to reduce parking requirements, which is, “the public good would be served and [. . .] the area in which the development is located would not suffer a substantial adverse effect from such diminution in parking.” Finally, the threshold for approval of a special permit in Section 9 is reduced from 2/3 of the permit granting authority to a simple majority for:

• Multifamily housing “located within 1/2 mile of a commuter rail station, subway station, ferry terminal or bus station” if 10% of the housing is affordable 
• Mixed-use development “in centers of commercial activity within a municipality, including town and city centers, other commercial districts in cities and towns and rural village districts” if 10% of the housing is affordable.

The last notable change is to Section 17 and concerns court appeals. The new law allows a court, in its discretion, to require a bond of up to $50,000 for appeals of “a decision to approve a special permit, variance or site plan.” The bond is to be set aside for payment of costs if the court finds “that the harm to the defendant or to the public interest resulting from delays [. . .] outweighs the financial burden of the surety or cash bond on the plaintiffs.”

The court must consider the merits of the action and the financial situation of any plaintiff. While the statute does not explicitly say this, the presumption appears to be that the money would cover the costs of a prevailing party defending their zoning approval. Such a bond requirement could be helpful in making whole those facing delays due to meritless lawsuits.

For questions on these recent Zoning Act changes, or for any commercial real estate concern, please contact firm attorneys Dan Bailey, Paula Devereaux, Gareth Orsmond, or Don Pinto.