Associate
It is no secret that Massachusetts lacks sufficient housing, where the supply cannot meet the demand. The Commonwealth carries some of the highest average rental and purchase prices in the nation. As a result, the legislature promulgated the Massachusetts Bay Transportation Authority (MBTA) Communities Act (the “Act” or the “MBTA Communities Act”), endeavoring to increase the housing supply in areas supported by transit infrastructure. In recent months, certain communities have challenged the enforceability of the Act.
On January 8, 2025, the Massachusetts Supreme Judicial Court published its opinion in the case Attorney General v. Town of Milton, et al. concerning the MBTA Communities Act. Specifically, the Supreme Judicial Court made three rulings. First, the Court concluded that the Act is indeed constitutional. Second, the Court concluded that the attorney general has the power to enforce compliance with the Act. Third, however, the Court ruled that the guidelines promulgated by the Executive Office of Housing and Livable Communities (EOHLC) were ineffective and unenforceable because they did not comply with the Administrative Procedure Act (APA). In other words, the EOHLC did not follow the rulemaking process required of state agencies when it failed to take the necessary steps of giving notice and affording interested persons an opportunity to present their viewpoints.
In response to the Court’s ruling, the EOHLC issued emergency regulations on January 14, 2025, meant to replace the previously unenforceable guidelines. These emergency regulations took effect immediately. In compliance with the APA, the EOHLC will also seek public comment in the coming weeks before issuing permanent regulations.
If the EOHLC previously determined that a community complied with the MBTA Communities Act, the EOHLC still considers that community compliant.
With the cost of home prices and rents among the highest of any state in the nation, the Commonwealth hopes that the creation of multifamily zoning near transit and in neighboring communities will help the housing crisis by creating new housing in walkable neighborhoods closer to transit.
To encourage the production of multifamily housing, Section 3A of Massachusetts General Laws Chapter 40, known as the MBTA Communities Act, requires MBTA communities to adopt zoning districts where multifamily housing use is allowed as of right. “As of right” means that the construction and occupancy of multifamily housing is allowed in that district without the need for a special permit, variance, zoning amendment, waiver, or other discretionary approval. However, dimensional zoning requirements and other restrictions may still apply. For example, site plan review may be required for multifamily housing projects allowed as of right that regulate vehicular access and the architectural design of a building.
The Act requires MBTA communities to zone for “at least [one] district of reasonable size” where multifamily housing is permitted as of right. The Act further defines “a district of reasonable size” and specifies that any such district must be situated within one-half mile of an MBTA facility. Moreover, multifamily housing must be without age restrictions and suitable for families with children and have a minimum gross density of fifteen housing units per acre.
There are 177 MBTA communities subject to the requirements of Section 3A. To date, a total of 119 communities have adopted multifamily zoning districts as a result of the law.
An MBTA community that fails to comply with the Act is not eligible to receive funding from certain funding sources provided by the Commonwealth, such as the Housing Choice Initiative, the Local Capital Projects Fund, the MassWorks Infrastructure Program, and the HousingWorks Infrastructure Program. The attorney general advised, however, that MBTA communities cannot avoid their obligations under the Act by forgoing this funding. The attorney general further cautioned that communities that fail to comply with the Act may be subject to civil enforcement action and risk liability under federal and state fair housing laws.
The emergency regulations include timelines for municipalities to adopt zoning districts and submit compliance applications to the EOHLC. Specifically, these emergency regulations provide additional time for communities that were noncompliant under the original guidelines to come into compliance with the Act. Communities that did not meet prior deadlines must have filed an Action Plan by February 13, 2025. The Action Plan must describe how the community will take the necessary steps to pass a compliant multifamily zoning district. The emergency regulations also provide until July 14, 2025, for communities to adopt a compliant district. MBTA communities may achieve compliance with the Act by following 760 CMR 72.00, which codifies the rules, standards, and procedures.
With the Supreme Judicial Court ruling that the Act is constitutional, all MBTA communities must zone to allow for multifamily housing use as of right. And although the recently released emergency regulations allow communities more time to come into compliance with the law, these deadlines are fast approaching. For builders and developers, more than three thousand housing units are already in the works to be built in districts that have adopted Section 3A. Fletcher Tilton PC continues to monitor recent trends and decisions concerning the MBTA Communities Act. The Firm, given its significant zoning and permitting practice, can assist builders and developers, especially, in navigating the zoning requirements applicable to MBTA communities.