The draft guidelines are less than 72 hours old, but already housing advocates and scholars are calling rules implementing a year-old transit-oriented zoning law a major victory in the fight against Massachusetts’ housing crisis.

“I think the guidance provides the path to producing the homes that we need. It’s amazing. We’ve been talking for so long about the shortage of homes in this state,” said Citizens Housing and Planning Association Executive Director Rachel Heller.

The rules, published Wednesday by the state Department of Housing and Community Development, implement a provision of the same bill, passed in early January of this year, that included the “Housing Choice” legislation simplifying the process of approving zoning changes statewide. The transit-oriented zoning portion, colloquially called the “MBTA communities” provision, requires towns and cities to zone areas within a half-mile of transit stations for by-right multifamily development at a density of 15 units per acre.

If enacted as written, the draft regulations would require towns and cities with MBTA bus and subway service to rezone a large area – at least 50 acres, but possibly more – near transit stations and places where bus lines intersect for multifamily development by the end of 2023. Communities with commuter rail stations only or which neighbor a town with MBTA service have until 2024 to meet the requirement.

“I’m very impressed with the overall scope. I think it would have been easy to do a much more slimmed-down, modest version of this and say, ‘we’ll have a little bit of multifamily housing everywhere,’” said Salim Furth, an economist and senior research fellow at George Mason University’s Mercatus Center.

Sticks or Carrots?

Failure to comply will mean a community can no longer receive money from a group of popular state infrastructure grant programs, including MassWorks.

“I certainly have concern that some municipalities will just write [these grants] off,” said Jesse Kanson-Benanav, executive director of Abundant Housing-MA. “That’s something we’re really going to need to keep an eye on.”

The enforcement mechanism is “a carrot approach, more than a stick,” said John Infranca, a professor at Suffolk University Law School. Compared to earlier zoning reforms like Chapter 40R “smart growth” legislation, it makes it more challenging for local officials to forgo the state grant programs than to plan for new housing.

“[These guidelines] put the costs on them. There’s no more free ride for being exclusionary,” Joshua McCabe, the advocacy and education coordinator at Harborlight Community Partners, a community development corporation operating in the Salem area.

Flexibility, and Guardrails

The structure of the regulations – requiring towns to come up with their own plans about where and how to allow for more multifamily development, instead of issuing mandates – should give towns important flexibility that was key to building support for the law’s passage, NAIOP-MA CEO Tamara Small said in an email to Banker & Tradesman.

“Towns are going to have to sell this to voters,” Furth said. “You can’t force a democracy to take action.”

Advocates and scholars interviewed by Banker & Tradesman said state officials largely seem to have headed off the obvious tools towns could use to claim compliance while still making it impossible to build multifamily housing with tools like aggressive setbacks, unreasonably low height limits and designating all the town’s already-built multifamily housing stock as areas for by-right multifamily development. Towns and cities will also have to prove that the zoning districts they design can support a specific number of multifamily units, that will be a function of their overall size and the level of transit service they have.

“We’ve seen in California that they were a lot more vague with their series of reforms and we saw a lot of shenanigans from towns that didn’t want to implement it,” McCabe said.

The Mercatus Center’s Furth said state officials should also work to develop a pre-application process for towns, so that officials will have certainty a zoning plan will pass muster before Town Meeting members vote.

“Voters aren’t going to pull the trigger on something they don’t really want to do if there’s a 10 percent chance that DHCD says you can’t do it,” he said.

Could Diversify, Green Development

Once fully implemented, the ability to build multifamily housing without going through a long and cumbersome approvals process could be instrumental in letting affordable housing developers compete more effectively with for-profit entities, McCabe said, and diversifying the number and racial background and gender of the state’s for-profit developer community.

“There’s a lot of literature on the idea that discretionary processes that are obscure and require a degree of expertise stifle entry into the industry,” Suffolk Law’s Infranca said. “The time horizon, that you’re not an inside player. It drives up your costs.”

While the law will likely open up some immediate development opportunities, CHAPA’s Heller said, it’s more likely that this will spur redevelopment of existing areas, including lots currently occupied by single-family homes. Her hope, she said, is that communities will take this as an opportunity to zone for more walkable, transit-oriented living that requires fewer carbon emissions.

“The state has created a really good framework that says all of our communities are part of our future, and it’s up to towns to imagine their future,” she said.

Advocates, Scholars Praise Draft Transit Zoning Rules

by James Sanna time to read: 4 min
0