Preliminary Guidance Issued for MBTA Communities on By-Right Multifamily Zoning

On January 29, 2021, the Department of Housing and Community Development (DHCD) issued preliminary guidance for MBTA communities regarding compliance with new law requiring by-right multifamily zoning (M.G.L. Chapter 40A, Section 3A). The purpose of section 3A is to encourage MBTA communities to adopt zoning districts where multifamily zoning is permitted as of right, and that meet other requirements set forth in the statute.

New section 3A of the Zoning Act provides that each 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.” The statute further provides “that such multi-family housing shall be without age restrictions and shall be suitable for families with children,” and that each such district “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.”

If an MBTA community does not comply with section 3A, it will not be eligible for funds from the following grant programs: (i) the Housing Choice Initiative as described by the governor in a message to the general court dated December 11, 2017; (ii) the Local Capital Projects Fund established in section 2EEEE of chapter 29; or (iii) the MassWorks infrastructure program established in section 63 of chapter 23A.

This preliminary guidance is to inform MBTA communities about the process DHCD will undertake to establish compliance criteria for section 3A, and to notify MBTA communities that they will remain eligible for grant programs administered by the Executive Office of Housing and Economic Development or its agencies until more detailed compliance criteria and guidelines have been issued.

DHCD intends to issue more detailed guidelines on compliance criteria and timelines after consulting with the MBTA and the Massachusetts Department of Transportation, as required by the statute. DHCD expects to seek and consider input from affected MBTA communities as well. DHCD will begin this consultation process promptly and expects to have more complete guidance available as soon as possible.

Based on information currently available, DHCD expects that some MBTA communities already have zoning districts that meet the statutory criteria, while others will need to enact new zoning. DHCD anticipates that its compliance guidelines will account for the fact that different communities have different needs and that communities considering the adoption of new zoning will, in many cases, require time for a planning process and community input.