Housing Choice Act of 2020 Promotes Multi-Family in Massachusetts Zoning Act and 40R – Update from McGregor Legere & Stevens, PC

Written by Michael J. O’Neill, Esq.

Housing Choice Act of 2020 Promotes Multi-Family in Massachusetts Zoning Act and 40R
Governor Baker signed the Housing Choice Act of 2020, Chapter 358 of the Acts of 2020 (the “Housing Choice Act”) on January 14, 2021, as an emergency law, which made it effective immediately. It made significant procedural and substantive changes to the Massachusetts Zoning Act (Chapter 40A) and Smart Growth Districts (Chapter 40R), largely to facilitate multi-family housing near transportation facilities.

Mandatory Zoning Allowing Multi-Family Housing in MBTA Communities

The Housing Choice Act added a new requirement for “MBTA Communities,” which are broadly defined to include essentially all communities served by the MBTA. MBTA Communities now are required under the Zoning Act to have at least one zoning district of reasonable size in which multi-family housing is allowed as a matter of right.

Such MBTA Community districts must be unrestricted as to age, must be suitable for children, and must have a minimum gross density of at least 15 units per acre. If applicable, they must be located not more than a half-mile from a commuter rail station, subway station, ferry terminal, or bus station.

This provision has sharp teeth. If a MBTA Community does not adopt the requisite zoning, it cannot qualify for the Local Capital Projects Fund, MassWorks Infrastructure Program, and Housing Choice Initiative Program.

The Housing Choice Act says that the department (presumably, the Department of Housing and Economic Development) shall promulgate guidelines to determine if an MBTA Community is in compliance with this new section of law. Guidelines have yet to be issued.

What is not specified is whether a MBTA Community may elect not to enact the requisite zoning and accept ineligibility for the specified state programs. The law is mandatory and does not seem to provide that option. It requires an MBTA Community to enact this specific zoning despite the fact that zoning traditionally is a strictly local decision.

Court May Require a Bond in Some Appeals Under G.L.c. 40A, sec. 17

The Housing Choice Act added another provision to the Zoning Act giving a court discretion to require a plaintiff appealing certain land use permissions to post a surety or cash bond of not more than $50,000 to secure the payment of costs if the court finds that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or cash bond on the plaintiffs. The court is directed to consider the relative merits of the appeal and the relative financial means of the plaintiff and the defendant.

This new provision is limited to appeals of a special permit, variance, or site plan approval, regardless of whether the project involves housing or multi-family housing near transportation facilities. Note that the surety or bond is not mandatory or automatic; rather, it is up to the discretion of the court.

This provision significantly changes existing practice. A plaintiff’s finances are now open to discovery and scrutiny by the defendant as well as the court at the very beginning of a case. Such information is not presently open to such disclosure at the very beginning of a case. This may have a chilling effect discouraging appeals.

Voting Requirements to Approve Certain Zoning Amendments Reduced

The Housing Choice Act makes it easier to enact zoning amendments to provide for multi-family housing and certain other uses allowed as a matter of right. Zoning amendments allowing the following uses as of right require a simple majority rather than a two-thirds vote:

  • multi-family or mixed-use development in an eligible location;
  • accessory dwelling units;
  • open space residential development;
  • Transfer development right zoning or natural resource protection where it will not result in a reduction of the number of housing units that could be developed;
  • the adoption of a smart growth zoning district or starter home zoning district in accordance with Chapter 40R.

Voting Requirements to Approve Certain Special Permits Reduced

The Housing Choice Act also makes it easier to obtain a special permit for multi-family housing near a transportation facility. It amends the voting requirements by the Special Permit Granting Authority for approval of a special permit from 2/3 to a simple majority for a special permit for certain uses, namely, multi-family housing within a half-mile of a commuter rail station, subway station, ferry terminal, or bus terminal, provided that not less than 10% of the housing is affordable housing.

Definitions of Basic Terms Added

The Housing Choice Act adds definitions to the Zoning Act of a number of basic zoning terms, including: “Accessory dwelling unit,” “As of right,” “Eligible locations,” “Gross density,” “Lot,” “MBTA community,” “Mixed-use development,” “Multi-family housing,” “Natural resource protection zoning,” and “Open space residential zoning.” The definition for “Transfer of development rights” was revised. These definitions will help judges as well as attorneys and other land use professionals in their work.


While the word on the street is that the Housing Choice Act affects only MBTA Communities and multi-family housing developers, in actuality it changes the Town Meeting and City Council votes for several kinds of housing the Commonwealth wants to promote, alters the vote needed for a Special Permit for multi-family projects near transportation nodes (if there is some affordable housing included), poses the prospect of appellants having to post bonds in Section 17 appeals to Superior Court and Land Court, and gives us several good definitions of many land use terms that have been common parlance amount community planners, boards, applicants, engineers, and lawyers for many years.