DHCD Issues Guidance for Municipal Zoning Compliance with MBTA Communities Act


In order to promote more transit-oriented housing development as of right in Massachusetts, the Massachusetts legislature added section 3A to the Massachusetts Zoning Act, Mass. Gen. Laws ch. 40A, known as the MBTA Communities Act. The MBTA Communities Act requires every MBTA community to have or adopt at least one reasonably-sized district in which multi-family housing is permitted as of right and without requiring variances from existing zoning.

MBTA communities are those cities and towns served by the Massachusetts Bay Transportation Authority and are expressly listed in Mass. Gen. Laws ch. 161A. There are currently 175 municipalities considered MBTA communities. Under the MBTA Communities Act, the Massachusetts Department of Housing and Community Development (DHCD) is charged with developing guidelines for compliance, and in August 2022 DHCD released its guidelines. We summarize those guidelines here.

What is a Reasonably-Sized District?

A reasonably-sized district is one that is at neighborhood scale and not merely suitable for a single development site on which a municipality is willing to permit a particular multi-family housing project. As subjective as that may be, DHCD’s guidelines establish both minimum land areas and minimum unit capacities for each MBTA community’s multi-family housing districts in Appendix 1 of its published guidelines, indicated by city and town.

In its guidelines, DHCD established minimum land area requirements based on four types of MBTA communities: rapid transit, commuter rail, adjacent, and adjacent small town. An “adjacent small town” community is defined as “an MBTA community that (i) has within its boundaries less than 100 acres of developable station area, and (ii) either has a population density of less than 500 persons per square mile, or a population of not more than 7,000 year-round residents.” There is no minimum land area requirement for adjacent small towns.

DHCD’s guidelines also establish minimum unit capacities for multi-family housing districts based on the type of MBTA community and the percentage of total housing units in each MBTA community. The specific capacity for each MBTA community is indicated in Appendix 1 of DHCD’s published guidelines. If an MBTA community has two or more multi-family housing districts, they may be considered cumulatively to meet that MBTA community’s land area and unit capacity minimums.

What is a Compliant District?

In addition to being reasonably-sized, multi-family housing districts must have a minimum gross density of 15 units per acre. DHCD’s guidelines permit MBTA communities to establish subdistricts within its multi-family housing districts with differing density requirements so long as, on the whole, the multi-family housing districts within the MBTA community meet the 15-unit-per-acre minimum gross density requirement.

DHCD requires that some multi-family housing districts be located not more than a half mile from a commuter rail station, subway station, ferry terminal, or bus station. This requirement only applies in MBTA communities that have at least 100 acres of developable land within a half mile of a transit station. If a MBTA community has less than 100 acres of developable land within a half mile of a transit station, it may site the multi-family housing district anywhere in the city or town.

For MBTA communities with more than 100 acres of developable land within a half mile of a transit station, DHCD established a sliding scale. The scale indicates the percentage of the minimum land area and unit capacity that must be sited within a half-mile of a transit station based on the size of developable station area in each municipality.

What Does it Mean to Permit Multi-Family Housing As of Right?

Multi-family housing districts established under the MBTA Communities Act must permit multi-family housing as of right, meaning that development may proceed without needing variances, special permits, zoning amendments, waivers, or other discretionary zoning approvals.

DHCD’s guidelines recognize that some cities and towns have established planning boards that carry out a site plan review function. Under the guidelines, site plan review may be required so long as it neither unreasonably delays housing production nor imposes conditions that make a multi-family housing project infeasible or impractical.

Mixed-use developments may also be permitted as of right in the multi-family housing district so long as multi-family housing is separately allowed. This likely means that MBTA communities cannot impose conditions that require other uses in addition to multi-family housing in order for a project to proceed as of right.

What About Inclusionary Development Policies?

DHCD’s guidelines strike a good balance between existing local inclusionary development policies and the recognition that excessive affordable housing minimum requirements may make it infeasible to construct multi-family housing. Inclusionary development policies are consistent with as-of-right zoning and may be enforced in the multi-family housing districts so long as (1) the affordable units are eligible for listing on DHCD’s Subsidized Housing Inventory; (2) the policy does not require more than 10 percent of units in any development to be affordable; and (3) the eligibility cap for affordable units is 80 percent or more of area median income.

An inclusionary development policy that requires more than 10 percent—but no more than 20 percent—of units in any development to be affordable may be enforced in the MBTA multi-family housing district if the policy predates the MBTA Communities Act and the MBTA Community can demonstrate to DHCD that it has not and will not stifle housing production.

Compliance and Next Steps

MBTA communities that do not comply with the MBTA Communities Act are not eligible for state funding from the Housing Choice Initiative, the Local Capital Projects Fund, or the MassWorks infrastructure program. It is not clear whether the penalty for non-compliance is limited to withholding state funds under these programs. In a recent DHCD webinar, Housing and Economic Development Secretary Mike Kennealy suggested that DHCD’s authority to enforce the MBTA Communities Act is not limited to withholding state funds solely under these three programs.

All MBTA communities must achieve interim compliance by January 31, 2023. To achieve interim compliance, MBTA communities must submit to DHCD an action plan for compliance with the MBTA Communities Act, obtain DHCD approval of the action plan, and begin taking steps towards implementation. DHCD will consider approved action plans when assessing threshold eligibility for the 2023 funding round for MassWorks, Housing Choice, and Local Capital Projects Fund grants.

If you are a municipal official or project proponent with questions about the MBTA Communities Act and DHCD’s new guidelines, please contact Sammy Nabulsi at ssn@rose-law.net or call our office.