Long-awaited guidance for municipalities concerning how to comply with new requirements under the Governor’s Housing Choice legislation have finally been issued by the Department of Health and Community Development (“DHCD”). General Laws Chapter 40A, Section 3A(a) (“Section 3A”) requires that all “MBTA Communities” have at least one zoning district of reasonable size where multi-family housing is allowed as of right. In total, DHCD has defined 175 communities as “MBTA Communities.” These are broken down into four types of communities: (1) Subway or Light Rail; (2) Bus; (3) Commuter Rail; and (4) MBTA Adjacent. Different rules apply depending on the type of community. Affected communities and towns have until December 31, 2022, to come into interim compliance and until March 31, 2024 (Subway or Bus Communities) or March 31, 2025 (Commuter Rail and MBTA Adjacent Communities) to come into full compliance.
The statute goes on to explain that a “district of reasonable size” must:
(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 Compliance Guidance provides a timeline for MBTA Communities to meet this obligation:
If DHCD determines that an MBTA Community is not in compliance with Section 3A, that Community will no longer be eligible for: (1) the Housing Choice Initiative; (2) the Local Capital Projects Fund from G.L. c. 29, § 2EEEE; (3) the MassWorks Infrastructure Program from G.L. c. 23A, § 63.
In order to comply with Section 3A, the Districts must meet specific requirements for size and density, and must allow multi-family housing as of right.
MBTA Communities must have at least one multi-family district where multi-family housing is allowed as of right. In this context, “as of right” means not requiring any discretionary permit or approval. Communities may still require site plan review, but may not use site plan review to deny a multi-family housing project when it is allowed as of right.
Districts must comprise at least 50 acres of land. The district need not be a single contiguous area of land, but if it consists of more than one area, at least one of those areas must include 25 contiguous acres, and no portion of the district may be less than 5 acres in size. In addition to land area, the multi-family district must have a sufficient number of housing units. The minimum number of units depends on the type of MBTA Community, as shown on the chart below.
|Category||Minimum multi-family units as a percentage of total housing stock|
|Rapid transit community||25%|
|Bus service community||20%|
|Commuter rail community||15%|
For example, consider if a particular MBTA Community was required to have 900 units in its multi-family district. It could theoretically reach this goal by allowing as-of-right conversion of a district of 300 single-family homes to three-family. Please also note that each District must have a minimum of 750 units, so for smaller MBTA Communities, the relative percentage will be higher.
In general, Section 3A requires that a multi-family district have a minimum gross density of 15 units per acre. This number is also subject to the limitations G.L. c. 131, § 30 and Title 5 of the State Environmental Code established pursuant to G.L. c. 21A, § 13.
The deadline to file comments on the guidelines is March 31, 2022. Please reach out to any of your contacts at Anderson & Kreiger if you would like help in drafting comments.