In a sternly-worded advisory issued today by Attorney General Campbell, all Massachusetts communities that host MBTA services were told that they must create multi-family zoning districts along their service routes.
The law underlying the AG’s advisory is M.G.L. c. 40A, Section 3A entitled “Multi-Familiy Zoning As-of-Right in MBTA Communities”
According to the new law,
An MBTA community shall have a zoning ordinance or by-law that provides for at least 1 district of reasonable size in which multi-family housing is permitted as of right
Such a district must allowing a minimum of 15 units per acre, be located within 1/2 mile of an MBTA commuter rail station, and have no age restriction.
An “MBTA Community” is defined in the AG’s advisory as
a town or city which hosts MBTA service; which abuts a town or city that hosts service; or which has been added to the Transit Authority pursuant to special law.
The plain-wording of the statute says that any community that fails to create multi-family housing around their MBTA line will lose access to state funds, in particular Housing Choice Initiative funds, Local Capital Projects funds, and Mass Works infrastructure program funds.
This strongly suggests that cities and towns are not mandated to allow such districts in their communities. However, they will lose a sizeable amount of state funds if they fail to comply.
But the AG’s advisory, which reads like a legal demand letter, contends that multi-family zoning is mandatory:
All MBTA Communities must comply with the Law…Communities that fail to comply with the Law may be subject to civil enforcement action. Non-compliant MBTA Communities are also subject to the administrative consequence of being rendered ineligible to receive certain forms of state funding. Importantly, MBTA Communities cannot avoid their obligations under the Law by foregoing this funding. The Law requires that MBTA Communities “shall have” a compliant zoning district and does not provide any mechanism by which a town or city may opt out of this requirement.
Emphasis added.
Law Office of Justin R. McCarthy 