September 28, 2021

Volume XI, Number 271

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September 27, 2021

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Massachusetts Makes Broad Changes to the Zoning Act

Year after year, the Massachusetts Legislature considers bills to change General Laws Chapter 40A, or the Massachusetts Zoning Act. Many prior changes were fairly minor, but on January 14, 2021, Governor Charlie Baker signed an act making some major changes to the Zoning Act. Several of the changes were taken from Governor Baker’s often-touted Housing Choice bill. Click here for the new legislation. Zoning Act changes start on page 35.

Some of the broadest changes are in the definitions section of the Zoning Act. For example, the term “as of right” is now a defined term identifying activity that does not need discretionary zoning approval. These changes are helpful both to avoid litigation about what terms such as “multi-family housing” and “accessory dwelling unit” mean, and because municipalities often adopt defined terms and other language from the Zoning Act into their zoning codes to assure compliance with the law. Such common language can be helpful to businesses operating in multiple municipalities.

The definition of “MBTA Community” deserves specific mention. This term includes three lists of municipalities set out in General Laws Chapter 161A, Section 1, and any other communities later added. The legislation created a new Section 3A of the Zoning Act that applies only to these municipalities. The new section states that each of these municipalities “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 zoning district must be “0.5 miles from a commuter rail station, subway station, ferry terminal or bus station, if applicable.” Municipalities that fail to comply with the new requirements will no longer be eligible for state funds from the Governor’s Housing Choice Initiative Program (which includes priority grants for MassWorks infrastructure projects), the Local Capital Projects Fund or the MassWorks infrastructure program.

Another notable change is the lower threshold for approving zoning code or bylaw amendments. Under the new legislation, certain zoning amendments now require only a simple majority vote by a town council, city council, or town meeting.

These include:

  • Allowing multifamily housing or mixed-use development as of right or by special permit in “eligible locations”

  • Allowing accessory dwelling units on the same lot as of right or by special permit

  • Allowing open space residential development as of right (homes concentrated in one area to create open space);

  • Increasing “permissible density of population or intensity of a particular use in a proposed multi-family or mixed use development” by special permit

  • Allowing reduced parking requirements for residential or mixed-use development by special permit

  • Modification of regulations concerning the “bulk and height of structures, yard sizes, lot area, setbacks, open space, parking and building coverage requirements to allow for additional housing units beyond what would otherwise be permitted”

The term “eligible locations” is newly defined. The definition includes development near public transit stations and town centers, and in commercial districts and rural village districts. Notably, development allowed “as of right” can still be subject to site plan approval.

There are also changes to Section 9 of the Zoning Act that governs special permits. Some of the changes reflect new definitions. For example, there is a new standard for granting a special permit to reduce parking requirements, which is, “the public good would be served and [. . .] the area in which the development is located would not suffer a substantial adverse effect from such diminution in parking.” Finally, the threshold for approval of a special permit in Section 9 is reduced from 2/3 of the permit granting authority to a simple majority for:

  • Multifamily housing “located within 1/2 mile of a commuter rail station, subway station, ferry terminal or bus station” if 10% of the housing is affordable 

  • Mixed-use development “in centers of commercial activity within a municipality, including town and city centers, other commercial districts in cities and towns and rural village districts” if 10% of the housing is affordable.

The last notable change is to Section 17 and concerns court appeals. The new law allows a court, in its discretion, to require a bond of up to $50,000 for appeals of “a decision to approve a special permit, variance or site plan.” The bond is to be set aside for payment of costs if the court finds “that the harm to the defendant or to the public interest resulting from delays [. . .] outweighs the financial burden of the surety or cash bond on the plaintiffs.”

The court must consider the merits of the action and the financial situation of any plaintiff. While the statute does not explicitly say this, the presumption appears to be that the money would cover the costs of a prevailing party defending their zoning approval. Such a bond requirement could be helpful in making whole those facing delays due to meritless lawsuits.

©2021 Pierce Atwood LLP. All rights reserved.National Law Review, Volume XI, Number 16
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About this Author

Dan Bailey environmental, land use, real estate, and municipal law.
Partner

Dan Bailey has more than 30 years of experience in environmental, land use, real estate, and municipal law. He prides himself on offering pragmatic solutions to complicated legal matters. While Dan’s “sweet spot” is the redevelopment of commercial property, he has a strong background in all aspects of environmental and regulatory law. Dan also handles all types of real estate transactions.  

Dan has helped facilitate development of a wide range of commercial real estate projects, ranging from mixed use (retail, office, and housing), multifamily housing, athletic facilities, marinas...

617-488-8165
Paula M. Devereaux Partner Boston Commercial Real Estate Law Real Estate Land Use Environmental
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Paula Devereaux is an experienced commercial real estate and land use attorney, focusing her practice on development, zoning, permitting, planning, and environmental regulatory compliance. Paula serves as real estate counsel for a number of clients in the Greater Boston area, ranging from smaller organizations to large corporations, medical centers, retailers, and real estate firms. She regularly advises clients on Boston permitting matters, waterfront development issues, and in sales, acquisitions, and financings.

Paula is active in the real estate community, serving in leadership...

617488-8186
Gareth Orsmond Partner  real estate, land use, environmental and municipal law, real estate financing, affordable housing
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Gareth Orsmond is a real estate lawyer with expertise in land use, environmental and municipal law, real estate financing, affordable housing, and large-scale development. Gareth’s practice encompasses commercial transactions, permitting, resolving property disputes, providing general counsel on a wide range of subjects, and litigating matters in administrative tribunals and court.

For more than 20 years, Gareth has represented diverse clientele, including developers, non-profit organizations, and governmental agencies. He has handled hundreds of hearings and meetings with...

617-488-8181
Donald R. Pinto, Jr., Pierce Atwood, litigation lawyer
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Don Pinto has more than 30 years of experience as a civil litigator, with a focus on complex real estate and land use disputes. He handles cases at the trial and appellate levels in the state and federal courts and before administrative agencies. Outside the courtroom Don has successfully resolved many disputes through negotiation, mediation, and arbitration.

Don is also the founder, editor, and one of several contributors to Massachusetts Dirt and Development Law, the firm's real estate blog.

...

(617) 488-8175
Joel Quick Real Estate Attorney Pierce Atwood
Associate

Joel Quick focuses his practice on land use and real estate law, providing a full array of legal services for any commercial or residential development project, including analyzing land use and local environmental regulations and appearing before public bodies to seek needed relief. Joel also negotiates and drafts any restrictions, easements, and covenants required by a municipality as a condition of approval, and, if needed, will seek amendment of affordability, conservation, and preservation restrictions. With experience acting as counsel for a number of municipalities and municipal...

617-488-8157
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