Last Friday, Massachusetts’ “Unlocking Housing Production Commission,” established by Gov. Maura Healey in October, 2023, released its report titled “Building for Tomorrow.” The report lays out a series of recommendations to address the Commonwealth’s housing crisis, organized into several categories: Economic Incentives and Workforce Development; Land Use and Zoning; Regulations, Codes, and Permitting; and Statewide Planning and Local Coordination. Some of the recommendations are realistic and achievable; others are pie-in-the-sky pipe dreams that could never happen in the current environment (or, in some cases, in any imaginable future environment). 

Of interest to regular readers of this blog, the report makes the following recommendations under the heading of Land Use and Zoning.

Eliminating Parking Minimums. Noting the significant effect on housing costs of mandatory surface and structured parking, and the corresponding consumption of land that could be beneficially used for other purposes, the Report recommends: (1) Eliminating parking minimums statewide for residential uses; and (2) Requiring municipalities to establish transportation demand management requirements as a condition for allowing off-street parking associated with new housing.

40A Reforms. The Report makes six recommendations to reform the state Zoning Act, Chapter 40A:

(1) Adding a statement of the purposes of zoning back into Chapter 40A. Such a statement was part of the bill establishing the current Zoning Act in 1975, but was not included in the statute as codified in the General Laws. One of the stated purposes of zoning is “[encouraging] housing for persons of all income levels.” The Report sees re-inserting the statement of purposes into Chapter 40A as an opportunity to highlight the role of zoning in addressing the Commonwealth’s housing needs.

(2) Incentivizing or requiring zoning to align with municipal master planning. The Report notes that many communities create master plans with 10- or 20-year growth strategies, but outdated zoning regulations often hinder achievement of these goals.

(3) Codifying site plan review. The Report observes that site plan review, which has become a key component in most municipal permitting regimes, is a creature of the common law that’s unregulated by Chapter 40A or any other statute. As a result, the process varies greatly from one municipality to the next, and often has the effect of making the development of housing more difficult and costly. The Report recommends codifying site plan review under Chapter 40A, including setting time limits, establishing uniform, objective criteria, allowing for tiered review systems depending on the size and scope of a project, and clarifying that notice to abutters is not required.

(4) Converting zoning appeals to court from their current status as “de novo” appeals to proceedings limited to the record that was before the local zoning board. The Report describes the benefit of this change as “prevent[ing] abutters from raising new issues on appeal that were never raised during the local approval process for the explicit purpose of delaying a project.” Amen to that.

(5) Amending Chapter 40A to add appeals of building permits to the list of appeals for which the defendant may move the court to require the plaintiff to post a bond. Currently, the statute only authorizes the imposition of a bond in appeals of special permits, variances, and site plans. The Report suggests this change “will strengthen the appeals process and disincentivize parties from levying baseless appeals.” Amen to that too.

(6) Requiring that land use appeals concerning the construction of 25 or more housing units be heard in the Land Court’s Permit Session, which offers attentive case management by the court and expedited timelines. Currently, under M.G.L. c. 40A, § 3A, appeals concerning projects involving 25 or more dwelling units may be brought in the Permit Session, or transferred there on the motion of any party, but are not required to be heard there.

The Report cites the following benefits of these proposed changes to Chapter 40A: strengthen the legal foundation for zoning to support housing production; reduce legal challenges and uncertainty for housing development; ensure zoning supports long-term housing and economic goals; improve permitting transparency and efficiency; streamline development timelines and reduce project costs; and enhance coordination between planning and zoning implementation.

Expanding Multifamily Housing Options. The Report makes two recommendations in this regard: (1) the Commonwealth should allow, by right, two-family homes on all residential lots and four-family homes on all residential lots with existing water and sewer infrastructure; and (2) the Commonwealth should require all municipalities to create multifamily zoning zoning districts, including by-right zoning for multi-family units proportional to each municipality’s overall housing stock, minimum density standards, requirements to ensure suitability of units for families with children, protection for environmentally sensitive land, and flexibility for municipalities to determine the size and location of multi-family projects, “with incentives for development near transit, commercial corridors, and job centers.” 

Minimum Lot Size Reform. Under this heading the Report has two recommendations: (1) eliminate residential minimum lot sizes statewide; and (2) allow residential lot mergers, lots splits, and use of substandard lots statewide to create multifamily housing by right, except in environmentally sensitive areas and on excluded lands. Whoa. Can you say “non-starter”?

40R Reforms. Chapter 40R is a 2004 law that offers incentive payments to municipalities that create zoning districts in which high-density residential and mixed-use development, with a minimum of 20% affordable housing, is allowed by right. The Report acknowledges that Chapter 40R has been mildly successful, producing over 7.000 housing units, but observes that this pace is inadequate to address the Commonwealth’s huge housing shortage. The Report makes two recommendations to improve Chapter 40R: (1) scale affordability requirements to density, meaning require a higher percentage of affordable units at higher density levels, while maintaining “a non-negotiable minimum percentage of affordable units for each tier of density”; and (2) amend the statute to eliminate so-called “zoning incentive payments” to municipalities and instead channel those funds into bonus payments for units actually built, with a portion of the funds paid to the municipality and a portion paid directly to the developer. 

40B Reforms. The Report recommends several changes to Chapter 40B, the Commonwealth’s groundbreaking 1969 statute that offers developers the opportunity to get a single “comprehensive permit” from the local zoning board, and avoid local zoning and other regulations, in municipalities that don’t have at least 10% affordable housing. Those recommendations are to strengthen Chapter 40B by (1) streamlining and speeding up the appeals process, including by expanding staffing at the Housing Appeals Committee, which hears developers’ appeals from adverse local decisions; (2) require parties who appeal comprehensive permits to post a mandatory bond to discourage baseless appeals; (3) increase the frequency of housing stock counts and updates to the state’s Subsidized Housing Inventory (SHI); (4) eliminate the requirement that affordable units must receive a financial subsidy to count towards the municipality’s SHI and instead treat oversight by and technical assistance from the Executive Office of Housing and Livable Communities and affiliated agencies as a form of subsidy; and (5) offer major financial incentives to municipalities that exceed the 10% statutory baseline, including grants for infrastructure improvements and technical assistance. 

As noted, some of the Report’s recommendations – for example, allowing two-family homes by right on all residential lots and eliminating minimum lots sizes statewide – are unrealistic and politically unachievable given Massachusetts’ strong Home Rule tradition. Others are plausible and something to strive for – particularly the proposed reforms to Chapter 40A, some of which have been bandied about for years, and which can be seen as a logical extension of the pro-housing reforms the Legislature enacted last summer (see our coverage of that important bill here).