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Executive Office of Housing and Livable Communities
100 Cambridge St., Suite 300, Boston
Attention: Secretary Edward M. Augustus
Via electronic submission
Re: Comments to the Emergency/Draft Regulations (760 CMR 72.00) Multi-family Zoning Requirements for MBTA Communities
Dear Secretary Augustus:
The Massachusetts Municipal Lawyers Association joins with the Massachusetts Municipal Association in providing the following comments to the Executive Office of Housing and Livable Communities’ Emergency/Draft Regulations (760 CMR 72.00) Multi-family Zoning Requirements for MBTA Communities (the “Draft Regulations”).
Our organizations support the goal of the Commonwealth in the adoption of M.G.L Chapter 40A, Section 3A, to encourage local zoning that supports transit-oriented development with a particular focus on the creation of multi-family housing near public transit stations. We have worked with our respective members since the enactment of the statute to seek meaningful adoption of compliant zoning consistent with Section 3A. We appreciate the time that has been invested by the staff at EOHLC and the Attorney General’s Municipal Law Unit, and the technical assistance facilitated by organizations like Massachusetts Housing Partnership and others to facilitate the zoning adoption process.
The MMA and MMLA previously submitted comments to the original draft Guidelines in our joint letter dated March 28, 2022. Subsequent to the submission of our comments and those of many others, the final Guidelines were issued and then subsequently amended on various occasions by EOHLC. We acknowledge and appreciate that many of the comments that were received by EOHLC (then DHCD) were incorporated to address issues such as the treatment of bus stations, the unique impacts of Section 3A on adjacent small towns, and the desperate need in Massachusetts for the creation of restricted affordable units and not only high-priced, market-rate units.
The purpose of this comment letter is to highlight concerns raised in our original letter of March 28, 2022, that were not addressed in the final Guidelines and have been carried into the Draft Regulations, and to provide further comments on compliance deadlines. As with our original comment letter, these comments are offered to help ensure that the final regulation may more closely reflect the intent of Section 3 as represented to the 177 MBTA communities when Section 3 was enacted, and thereby facilitate its adoption in all MBTA communities.
A. The Draft Regulations May Exceed the Authority Conferred Under Section 3A
The Draft Regulations are limited by the scope of legislative mandate set forth in Section 3A. Section 3A(c) provides that EOHLC, in consultation with the MBTA and MassDOT “shall promulgate guidelines to determine if an MBTA community is in compliance with this section.” With one exception, the determination of the “reasonable size” district, Section 3A is clear and concise in its requirements. The Draft Regulations cannot impose obligations that are in excess of the underlying statute and that cannot be interpreted in harmony with the legislative mandate.
The provisions of Section 3A(a) are clear and limited (formatting and emphasis added):
“An MBTA community shall have a zoning ordinance or by-law that:
• provides for at least 1 district of reasonable size
• in which multi-family housing is permitted as of right
• provided, however, that such multi-family housing shall be without age restrictions and shall be suitable for families
For the purposes of this section, a district of reasonable size shall:
(i) have a minimum gross density of 15 units per acre, subject to any further limitations imposed by section 40 of chapter 131 and title 5 of the state environmental code established pursuant to section 13 of chapter 21A; and
(ii) be located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station, if applicable.”
The Draft Regulations exceed the authority conferred under Section 3A in the following ways:
1. Unit Multipliers and Minimum Unit Capacity
Section 3A requires some guidance to interpret the meaning of “reasonable size,” which the Draft Regulations attempt to supply, but in doing so, the Draft Regulations must be consistent with Section 3A’s other provisions. After establishing a minimum district size of 50 acres for all but adjacent small towns, the Draft Regulations go even further, by establishing a “minimum unit capacity” that is not contemplated by, and cannot be read into, Section 3A.
The stated goal of Section 3A is the creation of zoning districts that allow as-of-right development of transit-oriented, multi-family housing in close proximity to specific types of transit stations, if applicable, and with a minimum of 15 units per acre, subject to limitations due to wetlands and Title 5. There is nothing within Section 3A that lends itself to an interpretation that the Draft Regulations may dictate a mandatory minimum unit capacity beyond what can be developed with a gross minimum density of 15 units per acre in a reasonably sized district. Even more so, nothing in Section 3A supports the determination of a mandatory minimum unit capacity to be determined by an arbitrary multiplier.
Section 72.05(1)(b) of the Draft Regulations sets forth multipliers between 5% and 25%, depending on type of MBTA community. There is no stated or known empirical basis that justifies the existence or the amount of such multipliers. These multipliers are then used to require, in many communities, districts of an even larger size or with significantly greater density than 15 units per acre, without regard to the geographic size, population, existing land conditions, or extent of existing multi-family housing, in a community.
2. The Determination of “Developable Land”
In adopting Section 3A, the Legislature expressly recognizes that the ideal of 15 units per acre may be unachievable due to the constraints imposed by the Wetlands Protection Act and Title 5 of the State Environmental Code (as further discussed below with respect to the practical constraints of the Draft Regulations). Specifically, Section 3A requires a “minimum gross density of 15 units per acre, subject to any further limitations imposed by [c. 131 §40] and title 5 of the state environmental code” (emphasis added). The Draft Regulations disregard the Legislature’s directive that the minimum gross density requirement may be limited by those conditions, and instead require that the actual density, based on a very complicated compliance model process, must be a minimum of 15 units per acre. Such determinations should accept, as anticipated by Section 3A, that districts might be less than 15 units per acre in the aggregate due to limitations imposed by wetlands and Title 5 constraints in particular communities. In addition, the requirement that communities undertake a parcel-by-parcel “due diligence” exercise of each parcel for its potential unit capacity is well outside the statutory requirements of Section 3A.
B. Timelines for Compliance
Due to existing statutory processes related to the adoption of zoning and the challenges that a number of MBTA Communities have faced in adopting compliant zoning after substantial good faith efforts by municipal staff and leaders, the deadline for all communities should be no earlier than December 31, 2025. In many communities where the necessary quantum of vote for adoption has not been reached, there is a need for more public forums, education, and constituent outreach. A deadline of June 30, 2025, for submission of an application for determination of compliance does not provide the amount of time it implies as the spring annual town meeting process is in full swing now with most town meetings taking place in the next 60 to 90 days. Warrant articles need to be submitted and zoning hearings held weeks in advance of the scheduled town meeting. The imposition of such a compressed deadline for town officials who need the time, after what may have been a challenging prior town meeting, to do the outreach and encourage the dialogue necessary for successful adoption of compliant zoning the next time it comes up for a vote, may be setting them up for failure.
C. Timelines for EOHLC Compliance Review
Strict deadlines with serious consequences have been imposed on MBTA communities. Pursuant to Massachusetts law, once zoning amendments are adopted they become effective. Yet dozens of MBTA communities that have done the work within their communities to successfully adopt multi-family zoning districts in accordance with Section 3A and the original Guidelines have been waiting for many, many months for a determination of compliance. Consistent with the review period for Attorney General review of zoning bylaw amendments pursuant to M.G.L. Chapter 40, Section 32, we request that EOHLC adopt in the Regulations for itself a requirement that applications for determination of compliance will be reviewed and approved, or written questions and comments provided, within 90 days of submittal of the application for district compliance.
Thank you for your time and consideration of the above comments.
Sincerely,
Adam Chapdelaine
MMA Executive Director & CEO
James B. Lampke
Executive Director, MMLA