Timothy N. Schofield
Summer is over and Massachusetts still doesn’t have a housing bill. Since July, a conference committee of the Legislature has been considering differing housing reforms as part of the Mass Wins Act, the annual economic-development bond bill. Now, those much-needed reforms are languishing as the larger bill becomes a catch-all for everything from AI regulation to noncompete law.
The Legislature has until January to act, but every month of delay means more rent increases, more families priced out and more cities and towns quietly slow-walking the homes the state needs. The Legislature needs to act now to pass statewide mandates that actually work.
Massachusetts deserves substantial credit for recognizing that its housing shortage requires statewide solutions, but local resistance and inaction have made it clear that stronger measures are needed.
In 2021, the Housing Choice legislation lowered voting thresholds for certain housing-related zoning changes. That same year, the MBTA Communities Act established a statewide requirement for multifamily zoning in designated districts. In 2024, the Affordable Homes Act made accessory dwelling units broadly available as of right.
And, in July of this year, the Legislature substantially amended the Massachusetts Zoning Act to, among other things, lower the standard for obtaining a variance and expand the circumstances in which pre-existing nonconforming structures or residential uses can be extended or altered as of right.
These measures represent a meaningful evolution in Massachusetts land-use policy and zoning law, moving away from the traditional assumption that local decisions should be insulated from statewide housing objectives.
Massachusetts should build on the reforms already enacted by establishing additional statewide minimum housing rights that municipalities may regulate but may not effectively prohibit.
The commonwealth should preserve local authority over legitimate health, safety, infrastructure and design concerns, while preventing cities and towns from using technical requirements, discretionary procedures, or other ostensibly neutral regulations to effectively block housing development.
As-of-Right Should Mean As-of-Right
The MBTA Communities Act was a landmark change because it established a requirement rather than leaving multifamily zoning entirely to municipal discretion, but the law also demonstrates the limitations of relying on municipalities to implement statewide housing policy.
Even when a community adopts a nominally compliant district, the resulting zoning may contain dimensional requirements, parking mandates, procedural requirements or other restrictions that substantially reduce the number of homes that can actually be built.
The House and Senate have already begun addressing that problem directly in their versions of the annual economic development bill, but those bills differ in scope and in the manner in which they are enforced.
For example, the Senate version (S.3178) would prohibit municipalities from banning, unreasonably restricting, or requiring a special permit for a duplex on a residentially zoned lot, while allowing reasonable regulation of setbacks, height, site-plan review and other legitimate concerns.
The Senate language also bars municipalities from using regulations that, individually or cumulatively, make duplex development physically or financially infeasible. That second piece is important: As we learned with the MBTA Communities Act, municipalities can comply with the letter of the law and still defeat its purpose through local regulation.
Adopt Both Branches’ Housing Ideas
The House version (H.5562) also contains real housing wins and has some genuine teeth. For example, it permits religious institutions to build multifamily housing as of right on land they already own (often referred to as the YIGBY, or “Yes in God’s Backyard,” provision).
The bill also establishes a statewide statutory framework for site-plan review for the first time and creates certain important requirements, including that decisions be issued within 90 days or the site plan is deemed approved, and that conditions be limited to what is necessary for zoning compliance. Unfortunately, H.5562 does not include a duplex mandate.
A conference committee is now negotiating a final bill. The conferees should adopt the duplex mandate from the Senate bill and the YIGBY provision from the House bill and should include provisions to prevent municipalities from circumventing these requirements.
The Legislature should also adopt S.3157, a separate bill still before the Senate Ways and Means Committee, which requires municipalities with populations greater than 10,000 to maintain a multifamily district at 15 units per acre. It also caps minimum residential lot sizes at 1 acre statewide, which closes a loophole that would allow municipalities to theoretically satisfy the district requirement while using oversized minimum lots to effectively block any multifamily development within the district.
The housing crisis is a threat to the entire state and requires statewide solutions. The next generation of reforms should therefore focus not simply on requiring municipalities to create theoretical capacity, but on ensuring that homes allowed by state law can actually be built. That means more as-of-right development, clearer statewide standards and fewer opportunities for local regulations to frustrate statewide housing goals.
Timothy N. Schofield is a founding partner at Boston law firm Schofield Donnelly.
