MBTA Communities Law

• Are any parcels not allowed to be zoned under Section 3A?

  Excluded land includes areas on which it is not possible or practical to construct multi-family housing. In Section 3A, excluded land is defined by reference to the ownership, use codes, use restrictions, and hydrological characteristics in MassGIS. The following are not allowed:

  • All publicly-owned land, except for lots or potions of lots determined to be developable public land
  • All rivers, streams, lakes, ponds, and other surface waterbodies
  • All wetland resources areas together with a buffer zone around wetlands and waterbodies equivalent to the minimum setback required by title 5 of the state environmental code 
  • Protected open space and recreational land that is legally protected in perpetuity (e.g., land owned by a local land trust or subject to a conservation restrictions), or that is likely to remain undeveloped due to functional or traditional use (e.g., cemeteries)
  • All public and private rights-of-way
  • Privately-owned land used for educational or institutional uses (e.g., hospital, prison, electric, water, wastewater, other utility, private school, college, university)

  A parcel may have only a portion of it that qualifies as excluded land. In this case, the entire area of the parcel will count toward the acreage, but only the allowable portions will count toward the unit capacity. 

  In addition, consideration may be given to sensitive land. While rezoning sensitive land is permitted, it may be factored into the decision. 

• Are there affordability requirements?

  Section 3A does not require affordable units, but the by right zoning 1) cannot require more than 10% of the units in a project to be affordable and 2) the cap on the income of eligible households cannot be less than 80% AMI unless:

  1. the district is part of a chapter 40R smart growth district or other EOHLC zoning incentive program, or
  2. the requirements are supported by an economic feasibility analysis that demonstrates a reasonable variety of multi-family housing types can feasibly be developed. 

  In our the current Section 9.9 MUMFROD Zoning Bylaw, Westwood has the following inclusionary requirements:

  Total Units	Minimum Number of Affordable Units
  1-7	0
  8-9	1
  10-15	2
  16-22	3
  23-26	3
  27+	15% of total units

  
  

• Can the district have sub-districts with varying degrees of density?

  Yes, sub-districts can be less than or greater than 15 units per acre as long as the average gross density for the entire district is at least 15 units per acre. Adopting sub-districts with less than 15 units per acre could potentially require a larger district to meet the minimum unit capacity, depending on the density of the other sub-districts. 

• Can the multi-family district be located in an area where there are many single family homes on small lots?

  Yes, but it may be difficult to demonstrate such a district meets the minimum multi-family unit capacity and gross density requirements because the zoning is unlikely to allow for the construction of the required number and density of units on small parcels. 

• Can the zoning have other requirements?

  The zoning cannot impose requirements on multi-family housing that are not generally applicable to other uses. 

  Examples:

  • requirement that the multi-family housing meet higher energy efficiency standards than other uses
  • requirement that multi-family housing achieves a third party certification that is not required for other uses

• Does mixed-use zoning qualify?

  Mixed-use development zoning districts allow multi-family housing by right if combined with non-residential uses (e.g., commercial, institutional, industrial). The most recent revision of the Compliance Guidelines allows more flexibility around including mixed-use requirements in MBTA zoning. However, areas zoned as requiring mixed-use development only count toward the minimum unit capacity. These areas would not count toward the required 50 acres.

  There are many benefits to mixed-use development. Given that Westwood has a split tax rate, in which commercial is taxed at a higher rate than residential, commercial development plays an important fiscal role. Mixed-use development allows the Town to enable the opportunity to address housing needs, provide amenities and services in a walkable setting, and create a positive fiscal impact. 

  Mixed-use districts will be taken into consideration by EOHLC to reduce the unit capacity needed for a multi-family zoning district to be "reasonable" if:

  1. the mixed-use development zoning district is in an eligible location where existing village-style or downtown development (e.g. Islington Center, High Street, University Station) is essential to preserve pedestrian access to amenities;
  2. there are no age restrictions or limits on unit size, number of bedrooms, bedroom size, or number of occupants and the residential units permitted are suitable for families with children; 
  3. mixed-use development is allowed by right as interpreted by EOHLC
  4. the requirement for non-residential uses is limited to the ground floor of buildings, and in no case represents a requirement that more than 33% of the floor area of a building, lot, or project must be for non-residential uses;
  5. the requirement for non-residential uses does not preclude a minimum of three residential dwelling units per lot; 
  6. the requirement for non-residential uses allows a broad mix of non-residential uses by right in keeping with the nature of the area; and
  7. there are no minimum parking requirements associated with the non-residential uses allowed as of right. 

• Does the law require the construction of new housing?

  The intent of the law is to remove barriers to housing development. The nationwide housing crisis is a result of many factors, especially demand far outpacing the production of housing. Common barriers to housing production include, but are not limited to:

  • lengthy & expensive permitting processes, 
  • restrictive zoning regulations, and
  • the high cost of materials. 

  The MBTA Communities does not mandate that housing be built, but instead requires each MBTA community to rezone in a way that makes housing production more accessible. In other words, property owners retain their agency to decide whether they build multi-family housing or not if their land is rezoned. 

• How does zoning for multi-family housing benefit the climate?

  Transportation, followed by residential buildings, is the top contributor of greenhouse gas emissions in MA. The benefits of new transit-oriented development (TOD) include:

  • decreased dependence on private vehicles, 
  • increased opportunities to use more sustainable means of transportation,
  • greater efficiency in new construction, and
  • reduced energy consumption from multi-family housing compared to single-family housing. 

• What does 15 units per acre look like?

  Westwood already has a variety of housing densities. The density is calculated by dividing the number of housing units by the total site acreage. 

  Westwood Place (Pulte Condos) 100 units  36.4 units per acre
  Gables at University Station 350 units 51.9 units per acre
  282-298 Washington Street 18 units 21.7 units per acre
  Colburn School 6 units 13.6 units per acre
  321 Washington Street 12 units 12.5 units per acre
  401 Washington Street 9 units 8.6 units per acre

• What factors go into the decision on which parcels are rezoned?

  The parcel list is subject to change while the Planning Board hearing remains open. The Planning Board has considered all parcels in Town based on a variety of factors, such as:

  • proximity to transit
  • existing commercial development
  • likelihood of redevelopment
  • bike and pedestrian access
  • proximity to environmental hazards 
  • public input 
  • Housing Partnership input

• What happens if an MBTA Community fails to comply?

  The Attorney General's Advisory states "All MBTA Communities must comply with the Law" and "cannot avoid their obligations under the Law by foregoing this funding." The Advisory further cautions that "Communities that fail to comply with the Law may be subject to civil enforcement action" and "risk liability under federal and state fair housing laws." 

  The following discretionary grant programs will also take compliance with Section 3A into consideration:

  1. Community Planning Grants (EOHLC)
  2. Massachusetts Downtown Initiative (EOED)
  3. Urban Agenda (EOED)
  4. Rural and Small Town Development Fund (EOED)
  5. Brownfields Redevelopment Fund (MassDevelopment)
  6. Site Readiness Program (MassDevelopment)
  7. Underutilized Properties Program (MassDevelopment)
  8. Collaborative Workspace Program (MassDevelopment)
  9. Real Estate Services Technical Assistance (MassDevelopment)
  10. Commonwealth Places Program (MassDevelopment)
  11. Land Use Planning Grants (EEOEEA)
  12. Local Acquisitions for Natural Diversity (LAND) Grants (EOEEA)
  13. Municipal Vulnerability Preparedness (MVP) Planning and Project Grants (EEOEA)

  Recent events throughout MA have introduced several other potential repercussions for non-compliance:

  • The Building Commissioner can lose their ability to enforce the municipality's Zoning Bylaw. 
  • Previously-granted funding can be revoked. 
  • Some grants not previously listed by the Attorney General's Office are revising their eligibility to include compliance. 
  • An injunctive relief can force the municipality to comply, otherwise a Special Master can be appointed. 

  The Attorney General's Office also released additional FAQs in April 2024. 

• What if an area already has a significant portion of the required unit capacity built? Can we count existing units?

  Compliance is based on the unit capacity to build housing, not a requirement to produce housing units, with the end goal of removing barriers to housing development. If the existing housing had to be built under chapter 40B or a Special Permit, then it was not by right. The important thing to understand is that you are counting what the zoning allows by right, not the number of units that currently exist. 

  Example: There is a 5-acre parcel in the district that allows 15 units per acre by right, or 75 units total. But the housing development was approved via Special Permit with 100 units because the developer wanted to build a larger project than allowed by right. While 100 units were constructed, the unit capacity is still 75. Therefore, only 75 units would count toward the required minimum unit capacity. 

  That being said, a district could have a density requirement above 15 units per acre, which would increase the unit capacity. By implementing a higher density requirement similar to the existing development, a Community could take credit for higher density housing. 

  Example: The same 5-acre parcel is rezoned to allow 20 units per acre by right. This would increase the unit capacity of the parcel to 100 units. Therefore, all 100 units already built will count. 

• What if the Community already has a zoning district in which multi-family housing is allowed by special permit? Does that count?

  Only districts that allow multi-family housing with a minimum of 15 units per acre by right count, which can include site plan review. Site plan reviews allow the Town to analyze the project environmental and design components. In the Town Zoning Bylaws, site plan review is referred to as an Environmental Impact and Design Review (EIDR) Approval.

  Currently, the existing 16.16 acres zoned as part of the MUMFROD in Westwood specifically require a MUMFROD-EIDR for housing units with a density of 15 units per acre and a MUMFROD Special Permit for projects with a density greater than 15 units per acre. 

• What is by-right/as of right development?

  By right or as of right development means the development is permitted without needing a special permit, variance, zoning amendment, waiver, or other discretionary zoning approval. All MUMFROD development will still be required to undergo Environmental Impact and Design Review (EIDR) though, allowing the Planning Board to work with the applicant on design, transportation demand management, stormwater management, and other project components at a public Planning Board meeting. 

• What is the Compliance Modeling Process?

  The purpose of the compliance model is to ensure a consistent approach to measuring and evaluating multi-family zoning districts for compliance with Section 3A. The following steps are involved:

  1. Download the compliance model (spreadsheet), instructions, and Land Database GIS file from mass.gov.
  2. Each municipality will answer questions in a "Checklist" format answering questions and using information from the proposed zoning district (e.g., height, lot coverage).
  3. Using a GIS map provided by EOHLC, the community will draw zoning district boundaries so that individual lot level data can be exported into the workbook. 
  4. The compliance models formulas then generate an estimate of unity capacity on each lot in the district(s), unit capacity for the district(s) as a whole, total land area for the district(s), and resulting gross density. Municipalities will then review the resulting lot data for accuracy. 
  5. Finally, the workbook results are compared to the other requirements for applying municipality as part of the district compliance determination process. The municipality submits the completed workbook as part of its application to EOHLC when the results show a district and zoning is compliant with the requirements in Appendix 1. 

  Case-specific refinements may be made by EOHLC if the unity capacity estimator algorithm does not adequately account for an atypical zoning requirement or restriction that will limit unit capacity. 

• What is the minimum size for a district?

  Municipalities can have more than one district, as long as each district is a minimum of five acres. The exception is any mixed use districts. These can be smaller since they do not count toward the acreage requirement, but are still beneficial by increasing the unit capacity while providing neighborhood amenities. 

• Why is the goal to build housing near transit?

  Building neighborhoods near transit with most amenities within a walkable distance, or transit-oriented development (TOD), reduces or eliminates the need for car travel. Less car travel creates safer pedestrian-friendly neighborhoods, reduces environmental impact, lowers traffic volumes, limits the amount of land dedicated to parking, and is more accessible to those that are unable to drive or don't have access to a vehicle. 

• Why is Westwood a commuter rail community?

  A commuter rail community is defined as an MBTA community that does not meet the criteria for a rapid transit community (subway or Silver Line) and has within its borders at least 100 acres of developable station area associated with one or more commuter rail stations