DHCD releases final zoning rules for MBTA communities

The Department of Housing and Community Development yesterday released its final Multi-Family Zoning Requirements for MBTA Communities.

A new Section 3A of Chapter 40A (the Zoning Act), enacted as part of the 2021 economic development law, requires MBTA communities to have at least one zoning district of reasonable size near a transit station in which multifamily housing is permitted as of right — and meet other criteria set forth in the statute — or risk a loss of eligibility for funding from the state’s MassWorks program, Housing Choice Initiative, or Local Capital Projects Fund.

The DHCD released draft compliance guidelines last Dec. 15 and conducted a public comment process through the end of March. In a March 28 letter to DHCD Undersecretary Jennifer Maddox, the MMA and the Massachusetts Municipal Lawyers Association expressed concerns about the draft rules, including that they exceeded the statutory authority conferred under Section 3A, that the compliance timeline was impractical, and that the rules lacked flexibility, particularly pertaining to affordability.

The DHCD’s final guidelines incorporate changes that address some of the concerns highlighted by the MMA and numerous municipalities, including the following:
• Revised community categories: The final rules establish four MBTA community categories — rapid transit, commuter rail, adjacent and adjacent small town — and eliminate the “bus service” category.
• Adjustments for small/rural towns with no transit stations: The final guidelines eliminate a minimum land area requirement and reduce the multifamily unit capacity requirements for communities with populations of less than 7,000 or fewer than 500 residents per square mile.
• Flexibility for affordability requirements: The guidelines acknowledge existing inclusionary zoning requirements in municipalities, and will consider an affordability requirement to be consistent with “as of right” zoning as long as certain requirements are met. These include that the affordable units be listed on DHCD’s Subsidized Housing Inventory, that the zoning requires not more than 10% of units in a project be affordable, and that the cap on income is not less than 80% of the area median income. The percentage of affordable units may be up to 20% if the requirement predates enactment of Section 3A and the community is able to demonstrate that its requirements will not make multifamily housing production infeasible, or if the zoning district receives DHCD review and approval as a smart growth district under Chapter 40R or under another DHCD zoning incentive program.
• Changes to reasonable size criteria: The guidelines establish “circuit breakers” so that multifamily unit capacity does not exceed 25% of a community’s existing housing stock and multifamily land area does not exceed 1.5% of total developable land.
• Tailored district location requirements: The portion of a multifamily zoning district that must be located within a half mile of a transit station now varies, based on the amount of developable station area within each MBTA community. Communities with more developable station area land will be required to have more of their multifamily districts within a half mile of transit stations. A community with fewer than 100 developable acres within a half mile of the station will be free to choose any appropriate location.
• Multifamily Unit Capacity Tool: To help communities calculate multifamily unit capacity, the DHCD has built a compliance model workbook tool that will provide a GIS land map for each municipality and calculate a zoning district’s multifamily unit capacity and gross density. The DHCD says the tool will be widely available for use in the fall.

The DHCD will recognize both “interim” and “district” compliance. An MBTA community meets interim compliance if it is taking active steps to enact a multifamily zoning district that complies with Section 3A. An MBTA community achieves district compliance when the DHCD determines that it has a multifamily zoning district that complies with Section 3A.

All 175 MBTA communities must achieve at least interim compliance — by submitting an action plan for full compliance — by Jan. 31, 2023.

The DHCD will be holding a webinar on Sept. 8 at 1 p.m. to explain the final guidelines.

The MMA will continue to work with the DHCD to help communities comply with the new rules.