Largest MBTA Communities project in Mass. proposed off I-495
In March, Westford residents overwhelmingly approved zoning for 4,915 units — more than five times the minimum required of the Merrimack Valley town
By Greg Ryan • Published October 18, 2024 • Updated on October 18, 2024 at 3:27 pm
Boston Business Journal
ZOM Living is pursuing a plan to build 530 apartments on what is now an industrial site in Westford, the largest project under the MBTA Communities zoning law to date statewide.
The project’s scale matches Westford’s openness to the law. In March, residents overwhelmingly approved zoning for 4,915 units — more than five times the minimum required of the Merrimack Valley town. Were all those homes to go up tomorrow, they’d increase the number of units in Westford by more than 50% over 2020 levels. (Lexington is another town that’s embraced the zoning law).
The changes in Westford have drawn the interest of developers, including Boston-based Redgate, which has explored putting as many as 300 units on the Westford Regency Inn property on Littleton Road, according to Jeffrey Morrissette, Westford’s assistant town manager. There’s also talk of putting housing on the Nashoba Valley Ski Area property, he and other officials said.
Link to article here:
Potential Loss of Local Autonomy
Story-at-a-Glance
- MBTA Communities Act enacted in 2021 requires that cities and towns served by the MBTA identify at least one zoning district that must permit multi-family housing
- The law only require towns to write new zoning rules and does not require building the described housing – that is up to each town’s legislative body
- The Town of Milton has challenged this law stating that it may violate the Massachusetts Home Rule Amendment to the State Constitution – zoning has been held to be a sovereign area of independent municipal power, free from State intervention
- Much controversy has been created over this law and the ruling of the State Supreme Judicial Court will be critical in defining the path forward; oral arguments are scheduled for Monday, October 7
- Stanley Kurtz of the Ethics and Public Policy Centerwrote : The “(MBTA) Communities Act operates quite like the controversial Federal Affirmatively Furthering Fair Housing (AFFH) regulation” at the national level and “The Massachusetts Communities Act has been heralded as a model for the implementation of AFFH”
- Kurtz writes, “The most informed supporters of the new law understand that the MBTA Communities Act is actually only a small first step. Even at best, the law can barely begin to solve the state’s housing shortage”.
The MBTA Communities Act
In late 2021, the MBTA Communities Act was signed by then Governor Baker. It was three paragraphs buried in a much larger omnibus bill rushed through with little public notice at the very end of the 2021 legislative session. This law which effects 177 communities in the state requires:
- At least one zoning district must permit “multi-family housing” uses “as of right”.
- The multifamily district must be of “reasonable size” to allow a minimum gross density of 15 units per acre which could be a single five- to six-story building, or a cluster of townhouse condos
- The multifamily housing must have no age restrictions.and for which there are no zoning restriction on the number of bedrooms, the size of bedrooms, or the number of occupants
- The multifamily housing must be suitable for families with children.
- A multifamily district must be located not more than ½ mile from a public transportation line (commuter rail station, subway station, ferry terminal or bus station), if applicable.
Localities are permitted to draw and define this zoning district
Gov. Baker told lawmakers that while he didn’t propose the section, he would still sign it into law because it gave his administration “considerable discretion to determine compliance”
- “Determination of compliance” means a determination made solely by EOHLC’s
- EOHLC will determine whether zoning provisions allow for multi-family housing as a right consistent with the published guidelines.
- If affordability requirements are excessive, however, they can make it economically infeasible to construct new multi-family housing consistent with as of right zoning as long as the zoning requires not more than 10 percent of the units in a project to be affordable units, i.e. they can override local affordability requirements
and the cap on the income of families or individuals who are eligible to occupy the affordable units is not less than 80 percent of area median income.
The most significant piece of the guidelines created broadly defined “unit capacity” targets for MBTA Communities that each community’s zoning must hit.
Notwithstanding the above requirements, EOHLC may, in its discretion, approve a greater percentage of affordable units than those stated above. Any MBTA Community that fails, in the judgment of the state, to create this required new zoning district will not be eligible for funds under the Housing Choice Initiative; the Local Capital Projects Fund and the MassWorks infrastructure program (these specific grants are listed in the guidelines)
MBTA Communities only require towns to write new zoning rules and does not require building the described housing. Building the housing is largely up to the market, and that’s where things start to get really complicated. At its core, MBTA Communities is a zoning law, not a housing production requirement. It asks towns to update antiquated rules that were often passed after towns were built out with more modern ones.
In Westford, with the Town Meeting Vote in May, have met the requirements of the law ( along with 44 communities out of the 177 other communities).
The Loss of Autonomy
At the heart of the debate over MBTA Communities Act is whether the state has legal authority over zoning. The town of Milton called a referendum on the zoning plan. Milton argue that the town has constitutional claims to local zoning control under Home Rule, the amendment that grants municipalities the ability to pass their own local rules. They’ve also argued that the attorney general does not have the legal standing to force local governments to adopt certain zoning provisions. The Home Rule Amendment is a complicated and intricate arrangement. In general, it poses the strongest form of municipal home rule available in the United States. The Amendment prohibits the Legislature from specifically legislating against an individual town without municipal consent. The Amendment prohibits municipal regulation of some topics, such as elections. The Amendment preserves the right of the State to preempt municipal laws. However, the Amendment also carves a sovereign area of independent municipal power, in which the municipality is free to legislate as it will. Zoning has been held to be part of this independent municipal power under the Home Rule Amendment. The Massachusetts Supreme Judicial Court will examine the case in the fall and either force the towns to cooperate or perhaps send the law back to the legislature for amendments or modifications. In addition, there are 30 towns that have filed a “class action motion to intervene” against this law. Six justices of the Massachusetts Supreme Judicial Court will hear arguments Monday, October 7.
More importantly, there are broader implications involved. The Law and its implications have been studied extensively by Stanley Kurtz of the Ethics and Public Policy Center. He writes : The “(MBTA) Communities Act operates quite like the controversial Federal Affirmatively Furthering Fair Housing (AFFH) regulation…” The AFFH regulation, established in 2015 by the Obama administration, applies to certain recipients of HUD funds to ensure that Federal funding is used in a systematic way to further the policies and goals of the Fair Housing Act of 1968. AFFH obligates any local jurisdiction that receives HUD funding to conduct a detailed analysis of its housing occupancy by race, ethnicity and a number of other categories … at both the local and regional levels… [thus] AFFH effectively nullifies municipalboundaries”. The federal AFFH is significantly more intrusive than even the MBTA Communities Act, but as Kurtz commented “The Massachusetts Communities Act has been heralded as a model for the implementation of AFFH.
Kurtz in 2016 after the AFFH Rule was instituted wrote,“In short, the claim that President Obama’s AFFH does nothing more than elaborate on obligations already implicit in the Fair Housing Act of 1968 is false. On the contrary, AFFH is an attempt to radically reinterpret FHA by creating a basis for de facto federal control of suburban zoning and planning, and a mandate for economic integration that exists nowhere in the original Fair Housing Act. AFFH is federal overreach on steroids, and deserves to be repealed and repudiated, not only on policy grounds but out of basic respect for the democratic process. Our constitutional system depends on the integrity of our laws. Once executive regulations effectively usurp the legislative power, Congress itself is rendered powerless, and our constitutional republic is lost.”
AFFH inserts the federal government into till now local decision-making on zoning, transportation, parks, school-district boundaries, and plenty more. As stated above, this is exactly what is at the core of the MBTA Communities Act as argued by the town of Milton.
From Kurtz, ‘The MBTA Communities Act is sometimes called a “Transit Oriented Development (TOD) “ becauseit’s meant to encourage TOD. TOD grew popular as a planning strategy during the Obama years and was on tap to be encouraged by Obama’s original AFFH rule. The idea is to build dense housing near transit stations, then gradually replace parking lots with even more housing. This will supposedly have the effect of forcing people to walk or use mass transit instead of cars, thereby protecting the environment while creating small-scale livable neighborhoods and greater transportation “equity.”
As stated by Massachusetts State Representative Russell Holmes , the idea is to build dense housing near transit stations, then gradually replace parking lots with even more housing. This will supposedly have the effect of forcing people to walk or use mass transit instead of car.
Kurtz writes, “The most informed supporters of the new law understand that the MBTA Communities Act is actually only a small first step. Even at best, the law can barely begin to solve the state’s housing shortage”.
Critics of the law are perfectly aware that it intentionally makes it impossible to combine new housing projects with adequate parking for both current and future residents. These suburbanites also understand that their lives won’twork without cars. A town may have a grocery store but not a clothing or shoe store. School baseball leagues span several towns. Without a car, it’s impossible either to shop or to root for your kid.”9
Both the MBTA Communities Act and AHHF are built on a carrot and stick approach. InMassachusetts, The MBTA Communities act specifically lists 4 categories of funds that communities will be ineligible for if they do not comply – “the stick” (the guidelines itemize 13 specific funds that fall under these categories) . In October 2023, Governor Healey appropriated $4 billion in the Affordable Housing Act, earmarked in part to support the MBTA Communities Act, the “carrot”.
The Possible Future
The Biden administration is poised to revive and expand AFFH rule if reelected.
Biden has decided to put housing at the center of his reelection campaign, including a promise to use billions in new federal funding to induce states to enact laws like the MBTA Communities Act. If Biden is reelected, we are headed for a new political era in which formerly local decisions on zoning are transformed into first-rank federal and state conflicts.7 This is exactly what is happening here in Massachusetts.
The policy proposals in the 2024 Economic Report of the President, March 21, 2024, include what could be an aggressive federal intervention in local politics, which often dictates where homes are built and who can occupy them. The administration is backing a plan to pressure cities and other localities to relax zoning restrictions that in many cases hinder affordable housing construction. For a detailed description of what is being considered, read the article in reference number nine and eleven. Biden’s campaign platform openly and unmistakably endorses plans to abolish single-family zoning9.
APPENDIX
The Law as Enacted
WHAT IS THE LAW
“ Section 3A. (a)(1) An 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; provided, however, that such multi-family housing shall be without age restrictions and shall be suitable for families with children. For the purposes of this section, a district of reasonable size 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.
(b) An MBTA community that fails to comply with this section shall not be eligible for funds from: (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.
(c) The department, in consultation with the Massachusetts Bay Transportation Authority and the Massachusetts Department of Transportation, shall promulgate guidelines to determine if an MBTA community is in compliance with this section “
Rapid transit: Rapid transit community” means an MBTA community that has within its borders at least 100 acres of developable station area associated with one or more subway stations, or MBTA Silver Line bus rapid transit stations
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