Attorney Ellen Freyman was recently quoted in October 21st issue Massachusetts Lawyers Weekly on the topic of zoning laws. The full article can be viewed below:
Zoning lawyers see Baker bill as move in right direction
By: Pat Murphy
Zoning lawyers see Gov. Charlie Baker’s proposed elimination of the “supermajority” standard for local decision making as adding much needed flexibility to the development approval process and a key step forward in addressing the state’s affordable housing crisis.
Introduced by Baker in February, H. 3507 — “An Act to Promote Housing Choices” — would allow cities and towns to adopt certain zoning measures related to housing development by a simple majority vote rather than the two thirds supermajority required for zoning changes under current law.
“This legislation is critical, will unlock the potential of our cities and towns committed to responsible growth, development and enacting best practices in sustainable housing production, and we are committed to working with stakeholders and our partners in the Legislature to make it a reality,” the governor said in unveiling the bill.
‘No brainer’?
Passage of the proposed legislation is a “no brainer,” according to Nicholas P. Shapiro, co-chair of the Land Use and Zoning Section of the Real Estate Bar Association.
“In terms of the scope of remedy, it’s pretty small bore,” Shapiro said. “It would probably nibble around the edges of the housing stock supply issues that we have.”
The Boston lawyer also noted that the bill has the backing of constituencies and special interest groups that “rarely” agree with each other. On that point, the measure has the public support of both the Massachusetts Municipal Association and NAIOP (National Association for Industrial and Office Parks) Massachusetts.
But the legislation won’t be well-received in all communities, according to David K. McCay, a Westborough real estate and environmental lawyer.
“The challenge is that it is likely to receive pretty broad support in communities that are pro-growth, but it’s also likely to see significant resistance in communities that aren’t as pro-growth and are trying to manage the consequences of growth and sprawl,” McCay said.
“I’m not sure cities and towns are going to allow for the permitting of the housing stock that we need unless they’re forced to do it.” — Nicholas P. Shapiro, Boston
Springfield land use and zoning attorney Ellen W. Freyman called the proposal a “good start” but noted that there is sentiment for broader zoning reforms from a number of quarters.
“But at least we have something where we have a consensus and can get some change enacted that can help facilitate the development of more housing,” she said.
Ending supermajorities
The state’s zoning statute, Chapter 40A, establishes procedures for the adoption of municipal zoning bylaws and ordinances. In particular, the statute mandates a two-thirds vote of a Town Meeting or city council to adopt or amend a zoning law.
The governor’s proposed reform would amend 40A to allow municipalities to approve zoning changes for certain housing measures by a simple majority vote. The measures subject to a majority vote would include approving the building of mixed-use, multi-family and starter homes, as well as the adoption of Chapter 40R “Smart Growth” zoning in town centers and near transit hubs.
Changing parking requirements and dimensional requirements, such as minimum lot sizes, would also be subject tomajority vote, as would special permitting for the allowance of increased density.
“Getting the two-thirds vote is extremely difficult. If a survey was done, you’d probably see that a majority of zoning changes are not approved at town meetings.” — Ellen W. Freyman, Springfield
Freyman said the problem with the supermajority standard is that it can make even well-planned affordable housing projects a near impossibility.
“The people who come out for the Town Meetings are the people that oppose the applications,” Freyman said. “So, invariably you’re going to get enough people to vote against [a zoning change].”
McCay likewise said he has seen plenty of instances in which a zoning proposal that had significant support within the community fell short of the two-thirds requirement for an amendment.
“The governor’s proposal is aimed at addressing some of those situations, but you wonder if requiring a simple majority is going too far in the other direction,” he said. “Maybe there’s a middle ground that gives communities the ability to preserve and plan in a way that’s a little more deliberate.”
Baker’s legislation also would allow majority vote to decide special permitting for certain multi-family or mixed-use projects with at least 10 percent affordable units in locations near transit or in centers of commercial activity.
That latter reform takes into account Massachusetts’ longstanding affordable housing law, Chapter 40B, which requires 10 percent of the housing in each municipality be affordable to low- or middle-income households. In communities that don’t meet the 10 percent threshold, developers are allowed to bypass local zoning and seek comprehensive permits for projects in which at least 20 percent of housing units meet affordability guidelines.
“If you have a [community] where less than 10 percent of housing stock is affordable housing, then it’s difficult for a city or town to deny you a comprehensive permit,” Freyman said.
But the Springfield attorney pointed out that there is still a need for Baker’s zoning reforms notwithstanding the fact that 40B provides an avenue for developers to go forward with a project in the face of local opposition.
“Not all projects might be eligible [under 40B], and not all developers want to go through the 40B process,”
Freyman said.
According to McCay, the proposed changes to special permitting procedures haven’t received the attention they deserve.
“When you have projects coming in that are subject to a special permitting decision, that supermajority [requirement] can be really tough, particularly when you’re dealing with a small [town] board,” McCay said.
Need for reform
Freyman, who sits on Longmeadow’s Zoning Board of Appeals, said she would be in favor of legislation dispensing with the supermajority requirement for zoning changes involving commercial projects. Longmeadow nearly lost out on a multi-million-dollar commercial development because of a divisive zoning fight, she noted.
In 2017, developers purchased an abandoned and deteriorating home built in 1885, proposing to rehabilitate the property and turn it into office space. That sparked an intense fight between the developers and townspeople who opposed rezoning the historic property for commercial use.
“They ultimately were able to get approval of the town by a two-thirds vote, but it wasn’t without a huge marketing effort and a huge lobbying effort pitting people against each other,” Freyman said.
Longmeadow’s experience points to the need for zoning reform on the commercial side as well, she said. “Had we just had a majority vote, it would have been much simpler and certainly less expensive for these developers,” Freyman said. “Getting the two-thirds vote is extremely difficult. If a survey was done, you’d probably see that a majority of zoning changes are not approved at Town Meetings.”
Crisis in Greater Boston?
Simple economics suggests the key to creating affordable housing in Massachusetts is the construction of more multi-family housing, Shapiro said.
But he pointed to a study released in June by public policy researcher Amy Dain as showing how existing zoning law has made the construction of multi-family housing an intractable problem in the Greater Boston metropolitan area.
Dain’s investigation of the planning and zoning for the development of multi-family housing in the 100 cities and towns outside of Boston reached a disturbing conclusion.
“Concerns about development have motivated municipal voters to restrict multi-family housing in numerous ways across Greater Boston,” Dain wrote. “Taken together, the restrictions appear to be preventing the market from meeting the region’s demand for housing.”
Shapiro cited Dain’s study for his conclusion that there’s a definite need to loosen the zoning process in order to permit developers to construct needed housing stock.
“What she found is that multi-family residential development is sort of the red-headed stepchild of the development world in the Greater Boston area,” Shapiro said. “Cities and towns generally don’t want to inject multi-family housing into any single-family residential districts. And in city and town centers where the transportation hubs are, cities and towns are very reticent when it comes to permitting multi-family residential developments.”
Shapiro said a perfect example of this “disastrous dynamic” was exposed by Land Court Judge Howard P. Speicher’s recent decision in Hancock Village I, LLC v. The Town of Brookline. In that case, Speicher struck down a town’s “neighborhood conservation district bylaw” that was aimed at preventing a multi-family housing development.
According to Shapiro, if the governor and Legislature are serious about addressing the affordable housing problem, they would move to enact a state zoning law that would preempt local authorities in regulating multi-family housing development.
“I’m not sure cities and towns are going to allow for the permitting of the housing stock that we need unless they’re forced to do it,” he said. “Perhaps it’s not just changing the procedural rules for home rule authority; maybe [the answer is] limiting home rule authority over this particular use.”
But McCay believes the governor’s bill would likely achieve at least some of its housing goals.
“If the bill is aimed at removing development barriers for housing production, this bill would accomplish some of those goals,” McCay said. “How much remains to be seen.”
Legislators have referred H. 3507 to the Joint Committee on Housing. In September, Lt. Gov. Karyn Polito called on lawmakers to pass the bill before the Thanksgiving recess.
As of press time, the last legislative action recorded for the bill occurred on May 14 when the joint committee held a hearing on the governor’s measure as well as a number of other housing bills. Baker filed a similar bill in December 2017 that died in the Legislature.
