Robert Ruzzo

This month marks the 12th anniversary of the enactment of Chapter 40S, the companion piece of legislation intended to insure against education cost burdens experienced by municipalities that were willing to adopt a SmartGrowth Overlay District (SGOD) under Chapter 40S’s slightly older sibling, Chapter 40R, also known as the “SmartGrowth statute.”

As such, it marks an opportune moment to take stock of the progress of the Chapter 40 R/Chapter 40S statutory tandem, and the state of SmartGrowth efforts in Massachusetts generally.

Passage of the SmartGrowth statute resulted from the efforts of housing advocates at a time when the commonwealth was increasingly focusing on transit-oriented development (TOD). Commonwealth Development Secretary Douglas Foy (formerly of the Conservation Law Foundation) pushed an agenda of TOD and sustainable development and redevelopment, under the mantra of “Redevelop First.” Notwithstanding the elitist tint of the statute’s nomenclature, these concepts have been embraced by subsequent administrations, Democrat and Republican alike.

Originally, Chapter 40R allowed for the adoption of SGODs in three different eligible locations: areas within a half mile of a transit location; areas of concentrated development; and the somewhat expansive category of other “highly-suitable locations.” As of Jan. 1 of this year, amendments to the SmartGrowth statute effectuated a bit of a Vulcan mind meld on the definition of eligible locations, infusing the notion of a highly suitable location into both transit locations and areas of concentrated development.

Adoption of a SGOD brings with it as of right zoning status, subject to site plan review (design standards may also be adopted). It also offers incentive payments to a municipality both upon the adoption of a SGOD and at the issuance of a building permit. Since a SGOD constitutes a zoning change, adoption of a SGOD requires the typical supermajority municipal vote.

Hailed upon enactment as a panacea for the commonwealth’s chronic housing shortage, the SmartGrowth Statute’s track record reflects the reality that there is no such magic solution for our production problem. More than 15,000 conceptual SGOD units have been approved, but just under 3,400 units have actually been constructed or had building permits issued. Still, individual communities such as Haverhill and North Reading have realized significant multifamily housing gains under the SmartGrowth statute.

Initially, the SmartGrowth statute was heavily promoted as a carrot, in contrast to the stick of Chapter 40B. Not surprisingly, a number of the initial SGOD districts were viewed as more palatable alternatives to threatened Chapter 40B developments, with mixed results. More recently, however, it appears that two interesting trends are emerging, according to Department of Housing and Community Development statistics.

First, a number of municipalities have amended or altered their existing SGODs or are in the process of doing so, typically to expand the district or to adjust parking requirements downward. Those trends indicate either a decision to expand upon initial successes or a willingness to continue to tinker until success is achieved.

Second, the neighbors are watching. A statewide map of SGODs evidences a bit of a cluster pattern emerging, both in the Pioneer Valley and along a serpentine spine wending its way from Norwood to Sharon, Easton and over to Brockton, then back down to Bridgewater and on to Lakeville. Success with the SmartGrowth statute in one community is bound to engender interest in adjoining cities and towns.

Stepping back, the SmartGrowth statute may not yet have won the unit production battle, but it has certainly won the thematic war. Regional interest is at its highest levels since the Creator first envisioned the transit-oriented phenomenon known as the town of Brookline. Growth discussions are increasingly focused away from locations highly reliant upon our already strained highway system and instead make use of (and frequently upgrade) existing public investments in infrastructure. Whatever one thinks of the “SmartGrowth” moniker, the trends set in motion by the SmartGrowth Statute are not likely to be abandoned anytime soon.

Bob Ruzzo is a senior counsel at Holland & Knight and a former Massachusetts Deputy Secretary of Transportation. He was also the chief operating officer and deputy director of MassHousing from 2002 to 2012.