Massachusetts House Bill No. 5250: Revisions to Massachusetts Zoning

On January 14, 2021, Massachusetts’ Governor Charlie Baker signed a comprehensive economic development bill H.5250  (the “Act”) which aims to infuse more than $600 million into the pandemic-ravaged Massachusetts economy by supporting businesses, encouraging job growth, and spurring housing development. Included with the development and funding provisions, the Act revised portions of General Laws c. 40A (the “Zoning Act”) relating to appeals of municipal zoning decisions, thresholds for municipalities to enact or amend zoning bylaws and ordinances, and incentives for municipalities to encourage transit-oriented development, multifamily housing, and mixed-use development. Developers and municipalities alike should be encouraged by these changes which are aimed at boosting development across the Commonwealth.

In an important revision to the Zoning Act, the Act allows courts to require that plaintiffs post a bond for frivolous appeals of municipal zoning decisions. The Act amends §17 of the Zoning Act to allow courts to require plaintiffs to post up to a $50,000 cash or surety bond when appealing the approval of a special permit, variance, or site plan. A court may impose such a bond upon finding that the potential harm to the defendant or public interest, due to delays resulting from the appeal, outweighs the financial burden of the bond on plaintiffs. Courts will consider the merits of the appeal, and the financial means of the plaintiff and defendant in determining whether to impose a bond. This bond requirement will likely reduce meritless appeals of planning and zoning board decisions.

The Act’s primary changes to the Zoning Act emphasize the development of mixed-use, multifamily, and affordable housing projects, particularly developments close to public transportation, and incentivizes more than 170 municipalities served by the Massachusetts Bay Transportation Authority (the “MBTA Communities”) to enact multi-family housing zoning districts within walking distance of public transportation. MBTA Communities that comply with the Act are eligible for funding from the Housing Choice Initiative, Local Capital Projects Fund, and the MassWorks infrastructure program. To comply, an MBTA Community must enact a zoning ordinance or bylaw which allows at least one multi-family housing district by right. The multi-family housing district must be of “reasonable size” which the Act defines as (i) a minimum gross density of fifteen units per acre that is (ii) located within one-half mile of a commuter rail station, subway station, ferry terminal, or bus station, depending on the type of public transportation available in the municipality. The multi-family zoning district must also be suitable for families with children and may not contain any age restrictions. A complete list of MBTA Communities is available in G.L. c. 161A, s. 1.

The Act further encourages all municipalities to revise their zoning bylaws to stimulate development within walking distance of commuter rail, subway, and bus stations, and ferry terminals by reducing the municipal requirements to grant special permits for certain multifamily housing, mixed-use development, and reduced parking requirements. The Act allows municipal planning and zoning boards to grant special permits by a simple majority, rather than a two-thirds vote, to multifamily housing located within one-half mile of public transportation stations if at least 10% of the proposed housing is affordable. The Act requires that multi-family housing remain affordable for at least 30 years. Similarly, the Act allows municipalities to issue special permits by a simple majority for mixed-use developments in commercial districts and city/town centers, provided that such a development is comprised of at least 10% affordable housing for a period of at least 30 years.

The Act also encourages housing development throughout the Commonwealth by allowing municipalities to grant special permits for reduced parking space-to-residential unit ratios if the reduction produces more housing units.

The Act further reduces the voting threshold requirements imposed on municipalities to amend municipal bylaws and ordinances. Rather than a two-thirds majority vote, the Act allows municipalities to pass the following zoning ordinance amendments by a simple majority vote:

(1) Allowing “as of right” multifamily housing, mixed-use developments, accessory dwelling units, either within a principal dwelling or as a detached structure on the same lot, and in open-space residential districts.

(2) Allowing, by special permit, multifamily housing, mixed-use developments, increasing permissible population density or use intensity in proposed multifamily or mixed-used development under G.L. c. 40A, §9, accessory dwelling units in a detached structure on the same lot, and reducing parking requirements for residential or mixed-use development.

(3) Allowing transfer of development rights or natural resource protection zoning in locations where such zoning promotes development but does not reduce the maximum number of housing units that can be constructed in the municipality.

(4) Modifying regulations concerning the massing and height of structures, yard sizes, lot area, setbacks, open space, parking, and building coverage, all to allow additional residential housing units.

(5) Adopting smart growth zoning districts or starter home zoning districts in conformity with G.L. c. 40R, §3.

As Massachusetts begins to recover from the economic impacts of the pandemic, the Act provides municipalities an essential toolkit to adopt policies that will encourage the development of housing, mixed-use, and transportation-friendly projects. Developers looking for new ventures throughout the Commonwealth should be encouraged by these changes and should look out for opportunities in municipalities that are taking advantage of the Act’s changes. Please monitor this space for additional updates to the regulatory scheme and changes coming to a municipality near you.