If you dislike suburban sprawl, you should love smart growth zoning, which is steadily spreading among the commonwealth’s municipalities.
In June 2004, Massachusetts enacted the Smart Growth Zoning and Housing Production Act as Chapter 40R of the Massachusetts General Laws. Chapter 40R encourages municipalities to establish smart growth zoning overlay districts near public transit facilities and town centers, in which higher density residential development is allowed as of right, without zoning variances or special permits. Chapter 40R offers modest financial incentives to communities that adopt smart growth zoning, but more importantly, the statute enables such communities to direct high-density residential and affordable housing to specific areas and to impose design standards on such housing. Otherwise municipalities risk the perils associated with Massachusetts General Laws Chapter 40B, which enables low-income housing developers to circumvent zoning restrictions in municipalities with low levels of subsidized housing.
Smart Incentives
There are three financial incentives available to municipalities that participate in Chapter 40R. First, upon adopting a smart growth bylaw, municipalities receive one-time “zoning incentive payments,” based on the number of additional housing units allowed as of right in the smart growth district. This payment is at least $10,000, and it can be as high as $600,000 for smart growth zoning allowing over 500 additional housing units. Second, the act provides participating municipalities with a one-time “density bonus payment” of $3,000 per housing unit, upon issuance of building permits for smart growth projects. Third, the act requires certain state agencies, when awarding discretionary funds, to favor participating municipalities.
These financial incentives alone may not persuade cities and towns to adopt smart growth zoning. Municipalities often fear that higher density housing will cause increased public school enrollment, which can stretch municipal finances. In response, the legislature enacted Massachusetts General Laws Chapter 40S, establishing a reimbursement plan covering municipalities’ increased educational costs resulting from smart growth zoning.
The Massachusetts Department of Housing and Community Development (DHCD) regulates smart growth zoning programs. Participating municipalities must seek DHCD approval of proposed zoning amendments and comply with numerous requirements. This approval process can take about 18 months to complete. The location and size of the smart growth zoning district must satisfy DHCD regulations. The zoning amendments also need to meet density and “affordability” requirements. Housing density in proposed districts must allow at least eight units per acre for single-family dwellings, 12 units per acre for two- and three-family dwellings, and 20 units per acre for multifamily buildings. At least 20 percent of these dwellings must be “affordable.” Under Chapter 40R, “affordable housing” does not mean “inexpensive housing.” Instead, “affordable housing” is a shorthand euphemism for price-controlled housing occupied by families earning less than 80 percent of area-wide median income. Thus, participating municipalities have to continuously monitor the affordable units’ pricing and the residents’ income.
Communities On Board
DHCD maintains records on smart growth zoning programs. Available records as of August 2014 show that 35 cities and towns (including Boston, Brockton and Marblehead) have adopted smart growth zoning with DHCD approval, covering over 1,600 acres on which nearly 13,000 dwelling units can be built as of right. So far, building permits have been issued for almost 2,500 smart growth dwelling units. Two additional municipalities, Norwood and Swampscott, are currently seeking DHCD approval for smart growth zoning districts.
During the 10 years since Chapter 40R’s enactment, many cities and towns have looked favorably to smart growth zoning to increase density and affordable housing in an orderly manner. The next 10 years will determine whether this trend continues.
Christopher R. Vaccaro is a partner at Looney & Grossman LLP in Boston. His email address is cvaccaro@lgllp.com.
