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Housing Choice Act of 2020 Promotes Multi-Family in Massachusetts Zoning Act and 40R Featured

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Governor Baker signed the Housing Choice Act of 2020, Chapter 358 of the Acts of 2020 (the “Housing Choice Act”) on January 14, 2021, as an emergency law, which made it effective immediately. It made significant procedural and substantive changes to the Massachusetts Zoning Act (Chapter 40A) and Smart Growth Districts (Chapter 40R), largely to facilitate multi-family housing near transportation facilities.

Mandatory Zoning Allowing Multi-Family Housing in MBTA Communities

The Housing Choice Act added a new requirement for “MBTA Communities,” which are broadly defined to include essentially all communities served by the MBTA. MBTA Communities now are required under the Zoning Act to have at least one zoning district of reasonable size in which multi-family housing is allowed as a matter of right.

Such MBTA Community districts must be unrestricted as to age, must be suitable for children, and must have a minimum gross density of at least 15 units per acre. If applicable, they must be located not more than a half-mile from a commuter rail station, subway station, ferry terminal, or bus station.

This provision has sharp teeth. If a MBTA Community does not adopt the requisite zoning, it cannot qualify for the Local Capital Projects Fund, MassWorks Infrastructure Program, and Housing Choice Initiative Program.

The Housing Choice Act says that the department (presumably, the Department of Housing and Economic Development) shall promulgate guidelines to determine if an MBTA Community is in compliance with this new section of law. Guidelines have yet to be issued.

What is not specified is whether a MBTA Community may elect not to enact the requisite zoning and accept ineligibility for the specified state programs. The law is mandatory and does not seem to provide that option. It requires an MBTA Community to enact this specific zoning despite the fact that zoning traditionally is a strictly local decision.

Court May Require a Bond in Some Appeals Under G.L.c. 40A, sec. 17

The Housing Choice Act added another provision to the Zoning Act giving a court discretion to require a plaintiff appealing certain land use permissions to post a surety or cash bond of not more than $50,000 to secure the payment of costs if the court finds that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or cash bond on the plaintiffs. The court is directed to consider the relative merits of the appeal and the relative financial means of the plaintiff and the defendant.

This new provision is limited to appeals of a special permit, variance, or site plan approval, regardless of whether the project involves housing or multi-family housing near transportation facilities. Note that the surety or bond is not mandatory or automatic; rather, it is up to the discretion of the court.

This provision significantly changes existing practice. A plaintiff’s finances are now open to discovery and scrutiny by the defendant as well as the court at the very beginning of a case. Such information is not presently open to such disclosure at the very beginning of a case. This may have a chilling effect discouraging appeals.

Voting Requirements to Approve Certain Zoning Amendments Reduced

The Housing Choice Act makes it easier to enact zoning amendments to provide for multi-family housing and certain other uses allowed as a matter of right. Zoning amendments allowing the following uses as of right require a simple majority rather than a two-thirds vote:

  • multi-family or mixed-use development in an eligible location;
  • accessory dwelling units;
  • open space residential development;
  • Transfer development right zoning or natural resource protection where it will not result in a reduction of the number of housing units that could be developed;
  • the adoption of a smart growth zoning district or starter home zoning district in accordance with Chapter 40R.

Voting Requirements to Approve Certain Special Permits Reduced

The Housing Choice Act also makes it easier to obtain a special permit for multi-family housing near a transportation facility. It amends the voting requirements by the Special Permit Granting Authority for approval of a special permit from 2/3 to a simple majority for a special permit for certain uses, namely, multi-family housing within a half-mile of a commuter rail station, subway station, ferry terminal, or bus terminal, provided that not less than 10% of the housing is affordable housing.

Definitions of Basic Terms Added

The Housing Choice Act adds definitions to the Zoning Act of a number of basic zoning terms, including: “Accessory dwelling unit,” “As of right,” “Eligible locations,” “Gross density,” “Lot,” “MBTA community,” “Mixed-use development,” “Multi-family housing,” “Natural resource protection zoning,” and “Open space residential zoning.” The definition for “Transfer of development rights” was revised. These definitions will help judges as well as attorneys and other land use professionals in their work.

Conclusion

While the word on the street is that the Housing Choice Act affects only MBTA Communities and multi-family housing developers, in actuality it changes the Town Meeting and City Council votes for several kinds of housing the Commonwealth wants to promote, alters the vote needed for a Special Permit for multi-family projects near transportation nodes (if there is some affordable housing included), poses the prospect of appellants having to post bonds in Section 17 appeals to Superior Court and Land Court, and gives us several good definitions of many land use terms that have been common parlance amount community planners, boards, applicants, engineers, and lawyers for many years.

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Michael J. O'Neill, Esq.

MICHAEL J. O’NEILL, ESQ., is a Senior Associate of McGregor Legere & Stevens, PC. He has more than thirty-five years of experience in a wide range of litigation in all courts and in real estate and commercial law, concentrating in environmental and land use law and litigation since 1992 and real estate and commercial law and litigation from 1983 to 1992.

Mr. O’Neill represents clients in all types and phases of environmental and land use law and litigation, including prosecution and defense of claims for or involving: clean-up, cost recovery, and property damage under the Massachusetts Superfund Law, G.L. c. 21E; deceit, misrepresentation, and unfair and deceptive acts under Massachusetts G.L. c. 93A arising out of the sale of real estate; ownership and use of real estate; nuisance, negligence, and trespass; citizen suits under the Clean Water Act; appeals to court from decisions of local boards and commissions on special permits, subdivisions, zoning enforcement, and permits under the Wetland Protection Act; Article 97 of the Massachusetts Constitution; condominiums; contracts; and injunctive relief. He regularly represents clients before local boards regarding land use permits and appeals to administrative agencies and court from decisions of local boards. He does opinions, lawsuits, and problem-solving concerning real estate titles, transactions involving contaminated land, easements, and leases.

Mr. O’Neill has extensive experience in the preparation, trial, and appeal of cases in all courts. He has successfully represented clients in all Massachusetts courts, including the Massachusetts Supreme Judicial Court, Appeals Court and all Divisions of the Trial Court. He has tried and argued cases before the United States Courts of Appeal for the First and Fourth Circuits, the United States District Courts for Massachusetts, New Hampshire, Rhode Island, and West Virginia; the United States Bankruptcy Courts for Massachusetts, New York, and Pennsylvania; the Vermont Supreme Court, the Pennsylvania Superior Court (an Appellate Court), and the Pennsylvania Court of Common Pleas. He is also experienced in arbitration and mediation.

Mr. O’Neill has taught workshops in environmental, land use, and real property law for the Citizen Planner Training Collaborative, the Massachusetts Association of Conservation Commissions, Massachusetts Continuing Legal Education, Inc., and National Business Institute, Inc.

Mr. O’Neill has received the Founders Award presented by Alternatives for Community and Environment, Inc. (ACE) and the Community Merit Award presented by Concerned Citizens of Freetown, Inc. for pro-bono work. Mr. O’Neill is rated “BV-Distinguished,” a “Very High” Rating, by Martindale-Hubbell, a legal directory.

Mr. O’Neill is a graduate of the College of the Holy Cross and a cum laude graduate of Suffolk University Law School, where he won the American Jurisprudence Award in Evidence.

Mr. O’Neill’s clients find him responsive, knowledgeable, sympathetic, and a strong advocate. His results before juries and justices have earned him the loyalty of many long term clients.

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