By Christine Rasmussen
Since the 1960s, as a Home Rule state, local voters at Town Meetings, with the approval of the state Attorney General, have guided their town’s development by regulating zoning issues like the density and setbacks for new structures.
However, after seeing economic development stagnate due to a lack of housing, Governor Maura Healey’s administration prioritized creating 222,000 new housing units in the state by 2035. All municipalities are expected to participate in the process. For example, on February 2, a new state law overrode local zoning by requiring Accessory Dwelling Units (ADUs or granny apartments) within an existing structure or newly built units of 900 feet or less to be allowed by right in any residential district in the state.
However, a more controversial option is getting attention in the press. It’s a new law applicable to the 170 communities in eastern MA served by or adjacent to a bus, train station, or ferry terminal run by the MA Bay Transportation Authority (MBTA). The MBTA law codified in the 2023 Economic Development Bond Bill requires the creation of multi-family housing as of right in at least one zoning district of reasonable size. The district must have:
- A minimum gross density of 15 units per acre,
- Fifty percent of the district’s area located within 0.5 miles of a public transportation station.
- A minimum gross density is 15 units per acre, and
- There are to be no age or family with children restrictions.
To become compliant, residents must vote to enact zoning bylaws, which the municipality develops, based on an 83-page state-developed guidance document. However, the units need not be built.
Massachusetts Attorney General Andrea Campbell issued further clarification in an Advisory stating that MBTA communities must comply with the statute, saying, “The law does not provide any mechanism by which a town or city may opt out of this requirement.” Her opinion continues, that “MBTA Communities cannot avoid their obligations under the Law by foregoing grant funding.” In addition, the Advisory cautions that “Communities that fail to comply with the Law may be subject to civil enforcement action” and risk liability under federal and state fair housing laws.”
Residents of the Town of Milton were the first to reject their draft bylaws, understanding they faced the loss of funds from four grant programs. The Commonwealth sued the town, and the Supreme Judicial Court ruled that Milton must comply.
Almost 120 of the MBTA Communities have either had their plans approved or are under state review, 38 are in the challenging process of gaining voter approval, and six are deciding on how to respond. In the meantime, the Berkshire Regional Planning Commission continues to monitor and provide information on legislative proposals to protect the values of our region.
