MBTA Community Act

MULTI-FAMILY ZONING REQUIREMENT FOR MBTA COMMUNITIES

This new law requires that an MBTA community shall have at least one zoning district of reasonable size in which multi-family housing is permitted as of right and meets other criteria set forth in the statute:

• Minimum gross density of 15 units per acre
• Located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station, if applicable
• No age restrictions and suitable for families with children

On December 15, 2021, the Department of Housing and Community Development (now the Executive Office of Housing and Livable Communities – EOHLC) issued draft guidelines on how to comply with the law. After the release of the draft guidelines, the Baker-Polito Administration held a public comment period until March 31, 2022. During the public comment period, there were over 24 engagement sessions and DHCD received nearly 400 comments through an online portal. The public comment process served to inform the revised guidelines.

On August 10, 2022, DHCD (now EOHLC) issued the final guidelines to determine if an MBTA community is in compliance with Section 3A. Read the letter sent to each MBTA Community from Secretary Mike Kennealy and Undersecretary Jennifer Maddox. We encourage you to visit this page often as it will be updated from time to time.

What is an “MBTA Community”?

“MBTA community” is defined by reference to Section 1 of MGL c. 161A:

• one of the “14 cities and towns” that initially hosted MBTA service;
• one of the “51 cities and towns” that also host MBTA service but joined later;
• other “served communities” that abut a city or town that hosts MBTA service; or
• a municipality that has been added to the MBTA under G.L. c. 161A, sec. 6 or in accordance with any special law relative to the area constituting the authority.

In total, 177 MBTA communities are subject to the new requirements of Section 3A of the Zoning Act. While served by the MBTA, Boston is exempted from the Zoning Act, including section 3A.

Why is multi-family zoning near transit and in neighboring communities important?

Massachusetts is in a housing crisis.

• Massachusetts has among the highest, and fastest growing, home prices and rents of any state in the nation.
• Rising costs have dramatically increased financial pressures on low- and middle-income families, forcing them to sacrifice other priorities in order to pay housing costs. High housing costs are a primary driver of homelessness.
• These high costs are a disadvantage as we compete economically against peer states. The risk of future job growth moving outside Massachusetts is rising due to the high costs of living.

How does creating zoning for multi-family housing help the housing crisis?

The lack of zoning for multi-family housing is a barrier for new housing development in Massachusetts. By allowing multifamily housing near transit, we can create new housing in walkable neighborhoods closer to transit. This is not just good housing policy, it is good climate and transportation policy, too. The result of transit-oriented development is:

• More housing closer to the places that we go every day, such as local shops, jobs, schools, restaurants, parks, etc.
• Better access to work, services, and other destinations by increasing mobility and utilization of public transit
• Reduced reliance on single occupancy vehicles, which helps in our larger effort to confront the climate crisis

What is the law?

The requirement is codified as Section 3A of MGL c. 40A:

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.

Attorney General Advisory

On March 15, 2023, Massachusetts’ Attorney General Andrea Campbell issued an Advisory concerning the enforcement of the requirements imposed on cities and towns by Chapter 40A, Section 3A.

The law requires that an MBTA community shall have at least one zoning district of reasonable size in which multi-family housing is permitted as of right, and that meets other criteria set forth in the statute. Failure to comply with the law results in a loss of eligibility for the community, for certain funding programs.

The Attorney General’s Advisory states “All MBTA Communities must comply with the Law.” The Advisory further states that “MBTA Communities cannot avoid their obligations under the Law by foregoing this funding.”

In addition, the Advisory cautions that “Communities that fail to comply with the Law may be subject to civil enforcement action” and, “Communities that fail to comply with the Law’s requirements also risk liability under federal and state fair housing laws.  The Law requires that MBTA Communities “shall have” a compliant zoning district and does not provide any mechanism by which a town or city may opt out of this requirement.”