Developers Question Whether New Zoning Plans Are Enough To Bring On New Projects

Press Releases
May 08, 2024
Chris Rhatigan
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The MBTA Communities Act required local municipalities to address Massachusetts' housing shortage by allowing higher-density multifamily and mixed-use projects near transit stops. Enacted in 2021, the state's transit-oriented housing law was initially hailed by the real estate industry for its potential to unlock new development.

But some communities are outright rejecting new zoning plans, and some that are seemingly complying with the law are adopting strategies that undermine its goal. Developers at Bisnow's Boston suburbs event on Wednesday said the optimism they once had in entering these communities is starting to fizzle.

"I think it's a lot more than just getting to yes," Mark Development principal Damien Chaviano said at the Hilton Dedham/Boston Hotel. "As I look at the zoning tools that are being discussed, I just think there's too much latitude that local municipalities have been given. When I look at what is going to be implemented, I question how far it's going to move the needle."As of Tuesday, 55 of the 177 MBTA communities have approved new zoning measures ahead of a second deadline of Dec. 31, but the plans still need to be reviewed by the state to see if they comply with the housing law.

Although the number is promising and some towns are proposing notable zoning changes, some developers said they think communities are finding loopholes that would prevent new development. The town of Chelmsford proposed a plan in March that focused on rezoning land that already has townhome development on it, Banker & Tradesman reported. For the site to be redeveloped, all of the townhome owners would have to agree to sell their properties, an unlikely outcome.

On Tuesday, town members at the Sudbury town meeting voted in favor of a similar plan that would rezone the Meadow Walk and Cold Brook Crossing area, which is already densely developed and would likely not create new opportunities for developers, Patch reported."I think on the development lines, there's going to be a lot more to be done," Chaviano said.

The state's response to such plans that might not bring new development would depend on the circumstances, Massachusetts Executive Office of Housing and Livable Communities Chief of Policy Eric Shupin said."If a community meets the requirements of the guidelines, we will approve it. That is the purpose of those guidelines," Shupin said. "Of course, we want to maximize the amount of housing that comes out of these districts, but some of that really does fall upon the local community to come up with their districts."Shupin added that the MBTA Communities Law isn't the only tool developers and towns can use to produce housing. "I think the last 50 years of local control zoning has shown what that can play out to be, but that's why this can't be the only solution," Shupin said. The state's 40B statute enables developers to override local zoning through affordable housing projects that set aside 20% to 25% of the units as income-restricted. Gov. Maura Healey's $4B Affordable Homes Act, which has yet to be approved, has several policies that would benefit multifamily developers. One of these policies includes a revolving momentum fund that would help accelerate the development of mixed-income multifamily housing. While some communities have found loopholes, others are voting against new zoning proposals, which may represent a bigger sentiment shift.

Eight communities have either voted down new zoning plans or aren't compliant with the law, The Boston Globe reported. One of the biggest blows came when the town of Milton voted in favor of its plan and then immediately voted it down after protests from community members.

The attorney general's office is in litigation with a few of the communities, including Milton, and has said repeatedly that it will be swift in enforcing the law."We're committed, we're engaged and we're willing to be reasonable and collaborative because the attorney general does not want to have to sue municipalities," Massachusetts Deputy Attorney General Rontear Pendleton said at Bisnow's event. "However, we have been very clear from the outset, when a municipality evades its responsibility to comply with the law, we will not hesitate to meet our responsibility to enforce the law." The wave of NIMBY sentiment seems to be growing, and developers are feeling it crash on them as they bring proposals to communities and zoning boards that are reluctant to hear them out.

Northland Associate Vice President Santo Dettore said that between 2017 and 2020 there were 12 40B applications that saw a housing appeal committee decision, whereas from 2021 to the present, 30 applications have been appealed by zoning board members. Dettore said that in these four years, it seems as though zoning board members are "rejecting [applications] for any number of reasons and telling developers to go to the housing appeals committee."

"Whether or not it's sentiment in the community and for the progressive values or anti-development, whatever that might be, you are seeing that uptick in sentiment sort of play through the comprehensive permit process," Dettore said. Developers said negative sentiment is one of the biggest challenges they face as they try to move projects forward."I think there was this interesting little window a few years ago where everybody thought the YIMBY movement was here to stay," The Procopio Cos. principal Michael Procopio said. "You cannot get up on the soapbox and preach about the housing crisis and simultaneously oppose more housing," Procopio added. "Those two things do not go hand in hand. This is a supply and demand issue."

Some communities have complied and proposed meaningful zoning changes. In April 2023, Lexington became the first community to bring a new zoning plan. The town approved 12 new overlay districts that consisted of 227 acres of new as-of-right multifamily and mixed-use zoning, The Lexington Observer reported. "When we started with the housing, there were a lot of misconceptions with the MBTA zoning to start, so education was No. 1 for us," said Sandhya Iyer, Lexington director of economic development. "We don't have density. It's not a walkable downtown anymore. We need more commercial zones, which is why we stressed having a mixed-use component in almost more than half of our zones." Redgate Vice President Michael Kenary said this law has expanded the communities that the company is looking to develop in and has opened the doors to neighborhoods that have historically barred new development."With MBTA communities, we've expanded where we're looking to develop, and it's been really exciting over the last year putting together a strategy to communities and sites that we're trying to target," Kenary said.