MBTA Communities Frequently Asked Questions
General Information:
What is the MBTA Communities Law, or Section 3A of M.G.L. Chapter 40A?
The requirement for multifamily zoning for MBTA Communities was part of a bill adopted by the Massachusetts Legislature and signed by the Governor on January 14, 2021. It is often referred to as “Section 3A” because it is codified as Section 3A of Chapter 40A, the chapter of Massachusetts General Laws that governs zoning for all cities and towns in Massachusetts except Boston. Section 3A requires that all municipalities in the MBTA service district have at least one area where multifamily housing is allowed as of right.
What does this law require?
A Section 3A district must allow multifamily housing as of right at a minimum gross density of 15 units per acre. The district must be located within the area created by a half-mile radius from a commuter rail, subway, or ferry station if applicable. The district must allow for housing suitable for families with children and the zoning cannot include age restrictions. The land in the district must be feasible for development for example, a district that is entirely conservation land would not comply because it is restricted from being developed.
The law discusses guidelines for how a community is to comply with the law. What are those?
Compliance with this law is determined by the Section 3A Guidelines which were promulgated by the Executive Office of Housing and Livable Communities (EOHLC) on August 10, 2022 and most recently revised on August 17, 2023. A Full copy of which you can find here: Section 3A Guidelines.
Why should we comply with this law?
Communities that fail to comply will be ineligible for grant funding from the Housing Choice Initiative, the Local Capital Projects Fund, the MassWorks infrastructure program, as well as a number of discretionary grants from the state across a variety of program areas.
In March 2023 State Attorney General Campbell additionally clarified that failure to comply may result in civil enforcement action or liability under federal and state fair housing laws e.g. the state will sue municipalities that do not comply. (Press release)
Can we still use Site Plan Review for a 3A district development?
Yes, site plan review can be required for multifamily housing in a 3A district. Site plan approval criteria typically cover matters such as vehicular access and circulation on a site or screening of adjacent properties. However, the process must not unreasonably delay a project or impose conditions that make it infeasible or impractical to proceed with a project that complies with applicable dimensional regulations.
Are we required to build a certain amount of housing?
No, the law does not require the construction of any units. Rather it mandates that zoning allows property owners/developers the option to construct multifamily housing without discretionary permits issued by a municipal Planning Board, Zoning Board of Appeals, or other granting authority. Additionally, the zoning district can be located in areas that are already developed; it does not need to be located on vacant lots.
Zoning Terminology:
What is zoning?
Zoning is a set of rules that regulates how we can and cannot use land within a municipality. This includes regulating the types of uses allowed within defined locations, size and siting of structures, amount of required parking, open space considerations, and much more. Zoning is one of the most important tools that a municipality can use to shape and regulate development.
What is a zoning district?
A municipality designates certain allowable use districts or zones within its borders. You can identify these zoning districts through a Town's zoning map. Typical zoning districts include, but are not limited to, residential, commercial, and industrial.
What is a zoning overlay district?
A zoning overlay district is laid on top of an existing zoning district(s) to create additional use and/or dimensional regulations for that specific location in order to address a site or area-specific needs. The intent is to provide relief for that specific use in a location without altering the underlying zoning district. By doing this a developer has the option to utilize either the zoning of the overlay district or develop a property under the existing zoning district.
What does multi-family housing" mean?
For the purposes of this law, “multi-family housing” means a building with 3 or more residential dwelling units.
What is "by-right" or "as of right" development?
“By right” or “as of right” means development that may proceed under a zoning ordinance or by-law without the need for a special permit, variance, zoning amendment, waiver, or other discretionary zoning approval.
What is zoning capacity as it relates to residential dwelling units?
Zoning capacity is a hypothetical unit yield based on district regulations. Zoning capacity is not limited to vacant land, a requirement to construct units, or concerned with existing units.
Additional Questions and Concerns:
Do the existing multifamily or mixed-use housing complexes count toward this law?
The law is a zoning mandate only. It is not a construction or production mandate and does not take into account existing dwelling units. Compliance with the law is not measured by the number of actual units on the ground, either before or after the bylaw is passed.
Will this cause a lot of new multifamily development?
Development only occurs when the market supports it and when property owners are in a position to redevelop. While the proposed overlay district bylaw provides a property owner the option to build a multifamily development by-right, not every property included within the district will need or want to utilize the bylaw given what may currently exist at that property. Many existing residential developments within the location of Walpole's proposed zoning overlay district were built following the Town's existing zoning bylaws. In some locations of our proposed zoning overlay district, the proposed density allowed would be equivalent or less than what was built following our current zoning.
Can we require mixed-use or commercial units on the ground floor with residential above?
We can allow mixed-use but we cannot require it over multi-family, and we cannot restrict residential units to any one floor. The Town has proposed zoning that will incentivize mixed-use by allowing for relief in building height and for a reduction in commercial space square footage. This would be a beneficial alternative in comparison to the existing zoning requirements for mixed-use within the Central Business District which is the principal underlying zoning district.
Does the law require affordable units?
There are no express requirements for affordable housing. However, a maximum of 10% of the dwellings can be required to be affordable by-right. The cap on income of families or individuals who are eligible to occupy the affordable units cannot be less than 80% of the area median income. Walpole is proposing that projects applied through the MCMOD require 10% of units to meet the requirements for affordable housing to be included on the Town's Subsidized Housing Inventory.
How and when must Walpole comply with the law?
Town Meeting will need to approve changes to our zoning by December 31, 2024, in order to comply with the law. The proposed changes have been submitted to the warrant for the May 6, 2024 Annual Town Meeting. If Town Meeting approves this zoning amendment, staff will submit the changes to both the Attorney General and EOHLC for final approval.
What has Walpole proposed?
Proposed Overlay District Boundary
Proposed Overlay District Boundary (per requirements of ZBL. sec. 1.5.B)