Written By Jonathan Berk
“Today’s decision is a resounding victory for the Commonwealth and a major step forward in our work to address the unacceptably high cost of housing for our residents… I applaud the residents, municipal officials, and communities that have already adopted zoning to help relieve our statewide housing crisis.” With that statement from Attorney General Campbell, months of angst over what the potential outcomes of the MBTA Communities Law would look like are now over. Unsurprisingly to most legal expects, MBTA Communities is the law of the land and may now be fully enforced by Massachusetts’ Attorney General Andrea Campbell.
Throughout the last 2-years, Abundant Housing Massachusetts staff have had the opportunity to work on the ground helping form pro-housing groups and empower citizens to advocate for MBTA Communities compliant rezoning efforts before town meetings and city councils. AHMA staff and volunteers were honored to have the opportunity to continue that support of the MBTA Communities Act implementation by drafting an Amicus Brief in support of the AG’s enforcement action against the Town of Milton. The purpose of an Amicus Brief or “friend of the court” brief is to educate the court on a topic, providing either additional relevant information or legal arguments or providing an expertise that’s not readily available to the Justices.
AHMA’s approach with our brief aimed to provide context to the justices beyond the specific legal arguments that were well argued and articulated by the very capable AG staff. We felt it was important contextual information for the Justices to understand some of the history of exclusionary zoning in Massachusetts, the severity and depth of our current housing shortage and the need for a regional approach to zoning reform efforts. Since nearly every state in the country is dealing with its own housing shortages and responding in their own ways, we thought it was important to showcase how our state level response was actually one of the more deferential state level zoning reforms we’ve seen from state governments recently.
As many scholars, including AHMA member and researcher Amy Dain, have noted, dramatic ‘downzonings’ during the 1970s across much of Eastern Massachusetts have left little buildable land left for new, by-right, development. This leaves us in a situation where, without significant variances granted from current zoning, most communities would not be able to build much if any new housing, particularly in Eastern Massachusetts. “While each zoning code lays out the criteria that would enable granting of a variance, the general rule is that to receive one, a property owner has to demonstrate that she would suffer a hardship if the zoning code were applied as written.” According to a 2020 report from The Boston Indicators, “the advantage of a consistent statewide policy [like MBTA Communities] is that it enables new housing to be built in the places with highest demand, while lifting some market pressures from moderate-income communities that currently are providing most of the region’s new housing.”
Much of the public pushback has centered on the ability for the State to place guardrails on what towns can or cannot do with municipal zoning. “States across the country have sought to address the housing crisis by directly displacing local zoning restrictions on homeowner’s control of their property. Viewed in the context of these reforms, the MBTA Communities Act represents a modest intervention in local zoning and one that maintains significant control over development at the local level,” quoted from AHMA’s amicus brief.
- Washington State superseded local zoning by requiring duplexes by-right on any single family lot across the majority of the State with quadplexes by-right on lots within a quarter-mile of transit.
- California’s SB9 allows any homeowner in most locations statewide to build a duplex on any single family lot, and in many cases split their lot, building 4 units in total.
- Oregon and Vermont have passed laws superseding local control, allowing duplexes or quadplexes by-right on most lots statewide, assuming access to water and sewer.
- Colorado’s Housing In Transit Oriented Communities Act requires 30 transit oriented communities along the heavily populated front range to rezone at 40-units per acre in large swatch of land near all local transit stations (MBTA Communities only required 15-units per acre and a defined, constrained area).
- Montana’s “Housing Miracle” plan required most communities across the state to incorporate a minimum of five strategies into their local zoning including things like quadplexes by-right and upzoning near transit stations.
For the vast majority of its history, Massachusetts has been able to flex to produce housing to meet the demand and fit the needs of its consistently growing economy and population. It’s only in the past few decades that we’ve so heavily constrained that ability that we’ve seen housing production numbers plummet from 50,000 permits a year in the 1960s and 1970s to barely 10,000 in the 2010s and 2020s. While there continues to be a need for further policy reform, MBTA Communities is our first and most substantial attempt to reform 50-plus years of failed housing policy that leaves us in the dangerous position we find ourselves in today. If we can’t course correct now with meaningful policy reforms, like MBTA Communities, we risk continuing to harm our neighbors today and the future of this region’s economy and population for generations to come. I know AHMA, its members, board, advocates, volunteers and staff look forward to continuing the work alongside many partners and communities for years to come. It’s on all of us, as a Commonwealth, to be a part of the solution.