Jackson Dowd
In 2021, the Massachusetts state legislature passed the MBTA Communities Act (MBTA Act) to increase multi-family residential zoning near MBTA access points.[1] The MBTA Act designates 177 Massachusetts municipalities proximal to public transit as “MBTA communities,” requiring them to provide zoning for at least one reasonably-sized district in which multi-family housing is permitted as of right.[2] The MBTA Act, overseen by the Executive Office of Housing & Livable Communities (EOHLC), is a novel approach to solving the state’s housing crisis by encouraging the development of multi-family housing in the areas where it is most needed: near public transit systems.[3] Although there is an urgent need for increased housing in the state, the MBTA Act has received pushback from local communities, some arguing that the required zoning ordinances are optional, or stating their intent not to comply with the requirements and accept the penalty of decreased state funding and grant opportunities.[4] In order to increase public support for, and ensure all communities comply with the MBTA Act, the state legislature should improve the public transportation system, require affordable housing units in these development districts, and enact enforcement mechanisms within the act itself.
I. Why Should Communities Comply?
The deadline for compliance with the MBTA Act varies by community category, but regardless of category, all MBTA communities were required to submit an “action plan” outlining the municipality’s process for adopting compliant zoning in order to achieve interim compliance by January 31, 2023.[5] The earliest deadline to fully comply with the MBTA Act was December 31, 2023 for rapid transit communities, which are municipalities with a minimum amount of developable land associated with subway stations or MBTA Silver Line bus rapid transit stations.[6] The remaining MBTA communities’ deadlines are spread throughout 2024 and 2025.[7]
As of March 2024, the municipalities of Hudson and Milton have publicly challenged compliance with the MBTA Act, while in many other communities there has been rising public dissent as votes on zoning law changes to comply with the MBTA Act draw near.[8] These challenges have largely stemmed from public pressure against zoning changes, confusion about what constitutes an “MBTA community,” and questions about the ability of the state to enforce the MBTA Act.[9]
Given these concerns, why should municipalities choose to comply with the MBTA Act? Like many states, Massachusetts is in the midst of a housing crisis with home and rental costs hitting historic highs.[10] The MBTA Act requires zoning allowing multi-family development by right within a reasonably-sized district no more than a half mile from an MBTA train, subway, or bus station.[11] Allowing multi-family zoning by right clears the way for developers to build new multi-family residences without the lengthy special permit and review process normally required.[12] If enacted, these zoning changes would likely lead to the prompt development of much-needed multi-family housing throughout eastern Massachusetts.
II. How to Induce Compliance?
The legislature could make changes to the MBTA Act and elsewhere to motivate the hold-out communities to comply with the Act and increase public support.
A. Address Underlying MBTA Issues
The elephant in the room when it comes to developing new housing around MBTA stations is that the train and subway system is notoriously unreliable and outdated.[13] If the MBTA made riding the “T” a more attractive option for commuters in and out of the greater Boston area, public support for housing centered around MBTA stations would presumably increase. The legislature could accomplish this by including funding for specific MBTA improvements that would take place as the MBTA Act itself took effect.
B. Affordability Requirements
The MBTA Act has no current affordability requirements.[14] In fact, the EOHLC expressly prohibited affordability requirements that require more than 10% of the units in a project to be affordable in these newly-zoned districts.[15] Many residents and town officials have expressed concern that the MBTA Act does not address the urgent affordable housing needs in their communities, and instead forces new, dense development in areas where it is not feasible or wanted.[16] The legislature’s decision not to directly address affordable housing in one of the largest zoning reform acts in the state’s history fails to take into account a fundamental part of the housing crisis. Including an affordability requirement, or at least allowing communities to make that decision on their own, would better address this need.
C. Implement Enforcement Mechanisms
Finally, if public pushback remains despite the previously recommended changes, the state must be able to enforce the MBTA Act requirements on noncompliant communities. The Attorney General’s lawsuit against Milton for their noncompliance is set to be heard by the Supreme Judicial Court (SJC) later this year, hopefully answering the question of whether the MBTA Act is truly mandatory. [17] But this all could have been avoided by including specific enforcement mechanisms in the original legislation. By addressing standing within the MBTA Act itself, the state legislature would provide for a private right of action for individuals, which one Superior Court judge has already ruled is not permitted under the current act.[18] Perhaps more importantly, the legislature could enact a public enforcement mechanism to explicitly give the attorney general the power to bring an action for permanent injunction against noncompliant MBTA communities.[19] These changes to the MBTA Act would clear the confusion around the act’s enforceability, and prevent communities from simply deciding to forego certain state funding and grant programs—which is currently the only consequence to noncompliance outside of court action.[20]
III. Conclusion
The MBTA Act is a positive step towards increasing multi-family housing in Massachusetts, but the act’s good intentions have been clouded by public confusion and resentment. Zoning and development changes are notoriously difficult to gain public support for due to the “not in my backyard” attitude often shared by residents near proposed developments. Centering new developments around MBTA stations is an innovative and progressive approach which has the potential to simultaneously increase housing and public transport accessibility in the state. By improving the public transportation system itself, the state could further incentivize the developments which the MBTA Act intended to create. Adding affordable housing requirements would ensure a benefit to low-income individuals who likely use public transportation the most. Once all MBTA communities comply with the zoning requirements of the MBTA Act, the state should see new multi-family developments cropping up quickly, providing much needed relief to the state’s housing crisis.
[1] Mass. Gen. Laws. ch. 40A, § 3A (2021).
[2] See Commonwealth Mass. Exec. Off. Hous. & Livable Cmtys., Compliance Guidelines for Multi-family Zoning Districts Under Section 3A of the Zoning Act 1 (2023), https://www.mass.gov/info-details/section-3a-guidelines#compliance-guidelines-for-multi-family-zoning-districts-under-section-3a-of-the-zoning-act- [https://perma.cc/EKN2-JMJM] [hereinafter Compliance Guidelines] (expanding on application of MBTA Act).
[3] See Christopher Cunio & Aidan Gross, Commentary: MBTA Act Is a Promising Response to the Housing Crisis, but It Needs Teeth, Bos. Bus. J. (Mar. 15, 2024), https://www.bizjournals.com/boston/news/2024/03/15/mbta-act-is-a-promising-response-to-housing-crisis.html [https://perma.cc/W63F-ZKRR] (summarizing MBTA Act’s mission).
[4] See Housing Needs by State: Massachusetts, Nat’l Low Income Hous. Coal., https://nlihc.org/housing-needs-by-state/massachusetts [https://perma.cc/9V8T-Z3CV] (analyzing rental home affordability in Massachusetts); see e.g., Cent. Mass. Hous. All., Inc. v. Town of Holden, No. 2385CV00918, 2023 WL 9417794, at *1 (Mass. Super. Ct. Nov. 30, 2023) (challenging enforceability of MBTA Act); Press Release, Mass. Off. Att’y Gen., AG Campbell Files Lawsuit Against Town of Milton for Failure to Comply with MBTA Communities Law (Feb. 27, 2024), https://www.mass.gov/news/ag-campbell-files-lawsuit-against-town-of-milton-for-failure-to-comply-with-mbta-communities-law [https://perma.cc/4456-FHBW] (announcing lawsuit for Milton’s noncompliance with MBTA Act).
[5] See Exec. Off. Hous. & Livable Cmtys., Multi-Family Zoning Requirement for MBTA Communities, Mass.gov, https://www.mass.gov/info-details/multi-family-zoning-requirement-for-mbta-communities#complying-with-section-3a-guidelines- [https://perma.cc/5Y83-782P] (guiding compliance with MBTA Act). Achieving interim compliance by January 31, 2023 allowed MBTA communities to remain eligible for the calendar year 2023 round of MassWorks and HousingChoice grants, and the Local Capital Projects Fund. See id. (listing benefits of interim compliance).
[6] See id. (outlining compliance requirements for all MBTA communities).
[7] See id. (setting compliance deadlines for MBTA communities).
[8] See Cent. Mass. Hous. All., Inc., 2023 WL 9417794, at *1 (challenging enforceability of MBTA Act); Press Release, supra note 4 (announcing lawsuit for Milton’s noncompliance with MBTA Act); Frank O’Laughlin, Another Massachusetts Town Considers Fighting New MBTA Communities Law, Bos. 25 News (Feb. 26, 2024), https://www.boston25news.com/news/local/another-massachusetts-town-considers-rejecting-new-mbta-communities-law/Y7I2SBKKRRC6HE2WSGBMIYS6LM/ [https://perma.cc/M2AN-92DP] (reporting Wrentham’s possible fight against MBTA Act). Several communities expressed confusion and uncertainty about the MBTA Act after its inception. See Aidan Kerwin, “MBTA Communities” Law Draws Confusion, Resistance, Bos. Pol. Rev. (May 2, 2023), https://www.bostonpoliticalreview.org/post/mbta-communities-law-draws-confusion-resistance [https://perma.cc/Y7TD-HETY] (discussing communities’ concerns about MBTA Act).
[9] See supra note 8 (presenting examples of challenges to MBTA Act).
[10] See Gap Report: Massachusetts, Nat’l Low Income Hous. Coal., https://nlihc.org/gap/state/ma [https://perma.cc/B9TF-WL66] (reporting housing gap data for Massachusetts); see also Chris Lisinski, Massachusetts Housing Crisis Testimony Reveals Complexity of Issue, NBC Bos. (Jan. 18, 2024) https://www.nbcboston.com/news/local/healey-wu-to-testify-on-housing-costs-in-mass/3250648/#:~:text=The%20Warren%20Group%20reported%20Tuesday,about%203.6%20percent%20over%202022. [https://perma.cc/MT9J-VQDB] (reporting Governor Healey’s concerns about housing crisis).
[11] See Mass. Gen. Laws. ch. 40A, § 3A (2021).
[12] See Compliance Guidelines, supra note 2, at 2 (defining “as of right” in MBTA Act).
[13] See, e.g., MBTA Customer Experience, Mass. Dep’t Transp., https://www.massdottracker.com/wp/divisions/mbta/mbta-customer-experience-23/ [https://perma.cc/R7XM-4TQF] (reporting reliability and customer satisfaction statistics of MBTA); Brandon Truitt, MBTA Problems Impact Quality of Life and Economy, Transit Experts Say, CBS News (Mar. 10, 2023), https://www.cbsnews.com/boston/news/mbta-problems-quality-of-life-boston-economy/ [https://perma.cc/5V5C-8JVL] (discussing shortcomings of MBTA and impact on state); Taylor Dolven & Elizabeth Koh, It’s Possible to Out-Run, Even Out-Walk the T New Slow Zone Data Show, Bos. Globe (Feb. 19, 2023), https://www.bostonglobe.com/2023/02/19/metro/its-possible-out-run-even-out-walk-t-new-slow-zone-data-show/ (last visited Mar. 24, 2024) (finding MBTA slow zones severely impacting subway efficiency).
[14] See Compliance Guidelines, supra note 2, at 7 (discussing lack of affordability requirements).
[15] See id. at 7-8 (limiting affordability requirements of required multi-family housing projects). The EOHLC stated it would consider and review projects requiring over 10% affordable units, but in no case would they permit a project to require over 20% affordable units. See id. (capping percentage of affordable units in multi-family zoning projects).
[16] See, e.g., Lance Reynolds, MBTA Zoning Bill Doesn’t Force Cities, Towns to Build More Housing, State Says, Bos. Herald (Feb. 29, 2024), https://www.bostonherald.com/2024/02/29/mbta-transit-bill-doesnt-force-cities-towns-to-build-more-housing-state-says/ [https://perma.cc/WRW7-H26M] (reporting Wrentham official’s belief that MBTA Act will not increase affordable housing); Clyde Younger, OP-ED: Truth or Consequences – The MBTA Communities Law, Watertown News (Oct. 28, 2023), https://www.watertownmanews.com/2023/10/28/op-ed-truth-or-consequences-the-mbta-communities-law/ [https://perma.cc/AT6P-YRJ8] (discussing unneeded density and lack of affordable requirement in MBTA Act).
[17] See Press Release, supra note 4 (announcing lawsuit for Milton’s noncompliance with MBTA Act); Andrew Brinker, Milton Housing Lawsuit Will Head to State’s Highest Court Later This Year, Bos. Globe (Mar. 18, 2024), https://www.bostonglobe.com/2024/03/18/business/milton-housing-lawsuit-sjc/ (last visited Mar. 24, 2024) (announcing SJC to decide MBTA Act case against Milton).
[18] See Cunio & Gross, supra note 3 (describing potential private enforcement mechanism); Cent. Mass. Hous. All., Inc., 2023 WL 9417794, at *4 (holding private citizen lacks standing to state cause of action under MBTA Act).
[19] See Cunio & Gross, supra note 3 (describing potential public enforcement mechanism).
[20] See Mass. Gen. Laws ch. 40A, § 3A(b) (2021) (revoking eligibility for state funding for noncompliant MBTA communities); Cent. Mass. Hous. All., Inc., 2023 WL 9417794, at *1 (challenging enforceability of MBTA Act).