Voters could have the chance to legalize construction of homes up to 1,850 square feet on a broader array of parcels on a statewide basis in November. iStock photo
Two recent amendments to the Zoning Act were intended to alleviate the housing shortage in Massachusetts, but a potential game-changer is on the horizon in the form of an initiative petition.
The MBTA Communities Act of 2021 required cities and towns with access to MBTA service to establish zoning districts of reasonable size where multifamily housing is permitted as of right. The districts must be located near commuter rail stations, subway stations, ferry terminals or bus stations, and must allow a minimum gross density of 15 dwelling units per acre.
The Executive Office of Housing and Livable Communities (EOHLC) promulgated guidelines for implementation of this statute, requiring all MBTA communities to submit applications to EOHLC for determinations of compliance by the end of last year. Most of the 177 municipalities subject to the statute complied, but a handful refused. Those communities now face enforcement actions by the Massachusetts attorney general’s office.
Last year’s Supreme Judicial Court decision in Attorney General v. town of Milton ruled that the attorney general can sue non-compliant municipalities for declaratory and injunctive relief to enforce the statute. After that ruling, Milton quickly adopted the required zoning. The remaining non-compliant communities are expected to fall into line eventually.
ADUs Legalized in Affordable Homes Act
The Affordable Homes Act (AHA) of 2024 made additional changes to the Zoning Act. It allows accessory dwelling units as of right in single-family zoning districts throughout Massachusetts, but not Boston.
It also restricts the merger doctrine regarding undersized lots. Under that doctrine, contiguous small lots that would have been buildable if separately owned, are regarded as “merged” into a single lot to conform to more stringent minimum lot size and frontage regulations. The doctrine rendered such small lots unbuildable as separate lots.
Since enactment of the AHA, undersized lots in common ownership cannot be treated as a single lot under local zoning if the lots met existing dimensional requirements when established by recorded plan, have at least 10,000 square feet of area and 75 feet of frontage, and are located in zoning districts that allow single-family dwellings.
However, homes built on such lots cannot exceed 1,850 square feet of heated living area, must contain at least three bedrooms, and cannot be used as seasonal homes or short-term rentals.
These recent amendments do not affect Boston, with its separate zoning enabling act.
In response to the statewide housing shortage, Boston enhanced the affordable housing mandate in its zoning code, known as “inclusionary zoning.” This mandate requires new housing projects with seven or more dwelling units to set aside up to 20 percent of units as income restricted.
These restrictions can impede housing construction, especially when land acquisition and building costs for affordable units (including permitting, financing and construction costs) exceed capped sales prices or cannot be recovered from capped rents.
Ballot Question Encourages Starter Homes
The MBTA Communities Act and the AHA are positive steps toward lessening local restrictions on housing production. But an initiative petition circulating in Massachusetts will have an even greater impact if it ends up on this year’s November ballot and gains enough votes.
The so-called “Legalize Starter Homes” initiative would allow construction of single-family homes as of right on lots having at least 5,000 square feet of area and 50 feet of frontage with access to public water and sewer. Unlike the “starter home” zoning type made available to towns and cities under the Affordable Homes Act of 2024, a ballot question arising from this petition would not come with a size cap.
Christopher R. Vaccaro
Supporters of this initiative petition began gathering signatures last September. In January the state Elections Division announced that it had certified over 84,000 signatures in support of the petition, thus qualifying it to go before the Massachusetts legislature this year.
The petition may not pass the Legislature, but it can still appear on the November ballot if its supporters gather another 12,500 signatures. Many criticize this petition as a blunt instrument to create higher density housing that would burden infrastructure and school systems in municipalities.
Housing scholar Andrew Mikula is a primary sponsor of the initiative petition.
“Because land is so expensive in much of Massachusetts, allowing homes on smaller lots will reduce the housing costs for buyers, because developers won’t need to build giant McMansions to justify the cost of assembling larger lots,” Mikula told me. “That’s a win for anyone who needs a small, low-maintenance, relatively low-cost home in the suburbs, especially young families, downsizing seniors, and first-time buyers of all walks of life.”
There could be two initiative petitions on the ballot this fall that would significantly impact housing in Massachusetts; namely, Mikula’s small-lot petition, and the statewide rent control petition. Only the former would likely promote housing production.
Christopher R. Vaccaro, Esq. is a partner at Dalton & Finegold, L.L.P. in Andover. His email address is cvaccaro@dfllp.com.
