Responding to the pushback by some cities and towns to the MBTA Community multi-family zoning mandate in the Zoning Act, Attorney General Andrea Campbell recently issued an Enforcement Advisory to assist municipal officials and residents in understanding the requirements of the law.
G.L. c. 40A, §3A was enacted by the Legislature as part of the Housing Choice Law. It was enacted to address the commonwealth’s acute need for housing by facilitation the development of transit-oriented, multi-family housing. It requires the 177 MBTA communities to create at least one zoning district of reasonable size in which multi-family housing is permitted “as of right.” The district must also be located within a half mile of a transit station and allow for development at a minimum density of fifteen units per acre.
Campbell wrote that “[b]y any measure, Massachusetts is in a housing crisis that is inflicting unacceptable economic, social, and environmental harms across our state–particularly on working families and people of color.” Her Advisory makes unambiguous that all MBTA Communities must comply with the law and that those communities that fail to comply may be subject to civil enforcement action.
Non-compliant MBTA Communities are rendered ineligible to receive certain forms of state funding. Importantly, the Advisory clarifies the misperception that a community can avoid its obligations under the law by forgoing this funding. “The Law requires that MBTA Communities ‘shall have’ a compliant zoning district and does not provide any mechanism by which a town of city may opt out of this requirement,” wrote the Campbell.
In addition, the Attorney General warns that MBTA Communities that fail to comply with the law also risk liability under federal and state fair housing laws.
A copy of the Enforcement Advisory can be found [here].
