Legal Terrain

Massachusetts’ Mandated Multi-Family Zoning Moves Forward, But Some Towns Resist

May 9, 2024


Town Meetings across Massachusetts are voting on zoning bylaws that would encourage multi-family housing. According to Section 3A of the Zoning Act, passed in 2021, 177 cities and towns near MBTA transit must ensure that their zoning codes allow multi-family development “as of right” without a discretionary process such as a special permit. So far, the law has attracted a ballot referendum revoking a Town Meeting vote, a threat not to comply, a request for a waiver, an attempt to put details to further study, lawsuits by the Attorney General and disgruntled abutters to rezoned land, and some “no” votes that leave towns wondering what’s next.

No age restrictions are allowed, and the zoning district must allow housing suitable for families with children. Affordable units are limited to 10 percent; a municipality may seek approval from the Executive Office of Housing & Livable Communities (EOHLC) to require up to 20 percent.

According to a EOHLC news release, as of May 1, 2024, 44 cities and towns have adopted the required zoning. All twelve municipalities with light rail and MBTA bus routes passed the required zoning in 2023, but Milton’s vote was subjected to a referendum that put the question to town-wide ballot. There it failed with 54% voting against the denser rezoning.  The Massachusetts Attorney General sued Milton, and in late March, the state’s highest court accepted the case but refrained from fast-tracking it.

The rural town of Holden, which has no MBTA transit itself but is adjacent to Worcester, has publicly stated it will not comply with the Act. It survived a lawsuit by a nonprofit and two residents, which was dismissed in December 2023 for lack of specific harm or injury to the plaintiffs.

In February 2024, all members of the Wrentham Select Board signed a letter to Governor Healey asking for “a waiver or modification” from the Act. They stated that the law would require up to 13% more residents without any state funding, overloading infrastructure, police, fire, and schools. More recently, Town Meetings at Marshfield and Wakefield voted not to adopt 3A-compliant zoning.

On April 22, Marshfield Town Meeting voted 289-169 against a zoning bylaw that would have added 84 acres of compliant zoning near bus routes and neighboring Scituate’s commuter rail. The AG has since noted that Marshfield has 7 months to comply with the law and “encourage[s] the town to consider another MBTA Communities zoning article at another town meeting prior to the end of the year.” Last week, Wakefield also rejected its plan for Section 3A compliance. Town Meeting voters cited strains on school budgets, public infrastructure and parking as well as a lack of transparency in the zoning proposals.

In Rockport, the day before a close and much-debated vote on April 29 to accept the multi-family zoning districts, a group of residents filed a complaint in U.S. District Court in Boston. They claim that the adoption of the denser residential zone violates their due process and equal protection rights and fails to serve a legitimate government purpose. Rockport had a Special Town Meeting to address compliance with the Act where two articles were debated for five hours. The first article passed by a 304-222 vote, and the second article was not as close, with the Town Moderator calling it passed by a show of hands. Voters were concerned about the lack of open space and inadequate MBTA rail service, which would lead to more car traffic from the denser housing.

Local reaction to the MBTA zoning mandate has varied to fit the diversity of the 177 cities and towns required to comply with the law. Acton, which meets this week to vote on zoning changes, held a Special Town Meeting in April to vote on a warrant article that would conduct further studies and review impacts of proposed zoning changes on traffic patterns, walkability, and the environment. The article, which some considered a delay tactic, failed by a two-to-one margin (147 to 72). In contrast, voters in Andover, Chelmsford, Concord, Northborough, Westford, and Winchester, supported the zoning changes by wide margins. Concord and Winchester conducted years-long public processes leading up to the rezoning. In a statement at Town Meeting advocating rezoning, Concord Select Board member Mary Hartman, speaking on behalf of the Board, emphasized the importance of “maintain[ing] collegial and cooperative relationships with the state agencies” that are closing and redeveloping the Massachusetts Correctional Institute prison in Concord and redesigning a state highway. Failure to rezone could jeopardize the local-state partnerships needed to accomplish these projects. Two dozen more communities will vote in May whether to adopt Section 3A-compliant zoning districts.

If towns fail to comply, they lose eligibility for numerous state grant programs, including school funding, community planning and Brownfields restoration. The communities that are pushing back may see this as their last or best chance to deflect a state-wide approach to housing production that would wrest control from local governments. However, Section 3A-compliant zoning does not require housing construction, rather, it reduces some of the traditional barriers. Fighting a requirement to create more welcoming zoning could be putting the cart before the horse. Any development in the new, multi-family zoning districts must still overcome hurdles such as wetlands and environmental laws, adequate sewer service and drinking water. EOHLC guidance states that planning boards may still use Site Plan Review to “regulate” but not “prohibit” matters such as vehicular access and circulation, architectural design and screening of adjacent properties, as long as they do not “unreasonably delay a project” or make a dimensionally compliant project infeasible or impractical. Most communities are taking the approach that keeping the state on their good side will help them control and support affordable housing.

We await the SJC’s decision in the Milton case – oral arguments have been scheduled for October 2024. Given the Attorney General’s comment that most communities have all of 2024 to comply, more lawsuits this year are unlikely. Come January 2025, we should have better guidance from the SJC and a longer list of compliant and non-compliant communities.

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