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{on the hill} The Potential Burdens of Zoning Changes

by The MAR Legal Department | Feb 28, 2018
In the last issue, we provided you with a briefing on Governor Baker’s Housing Choice Initiative, which includes a bill to change a key zoning law in Massachusetts. The goal of the change is to help make it easier for cities and towns to build more housing.
There are other proposals before the legislature to change zoning laws that would make it much more difficult and expensive to build housing. Senate 81 and House 2420 have both been nicknamed zoning reform bills this session and, unfortunately, not all attempts at reform are positive. While filled with small technical changes that would be bad for housing production, the bills both contain policy proposals that would inhibit growth and make any housing actually produced more expensive. The following are some of the major policy concerns contained in the legislation that Realtors® oppose.

Inclusionary Zoning:

By expressly authorizing municipalities to impose mandatory inclusionary requirements, H.2420 would unfairly burden developers with the substantial costs of fulfilling society’s obligation to ensure the availability of affordable housing.       

It would significantly impact the cost of development in these municipalities. It would necessarily increase the cost of market rate housing to the detriment of first-time homebuyers and others looking to move into or remain in the community, who do not qualify for subsidized housing.     

The burden to provide affordable housing options should either be shared more broadly, or provided on a voluntary basis in response to meaningful incentives consistent with a plan for the creation of such housing. Development under G.L. c. 40B is a market-based approach that spreads the burden across all municipalities in the Commonwealth and has been successful in providing affordable housing.

Impact Fees:

Development impact fees involve complex legal, planning, and economic principles that are not adequately addressed by Section 9E. It is generally recognized that development impact fees increase the cost of new development, especially for residential projects, which may reduce the number of projects that are economically feasible. To the extent that the increased development costs are passed on to consumers in the form of higher prices, impact fees also make housing less affordable. 

In states that have authorized impact fees by statute, impact fees are the exclusive means for local governments to address capital facilities and services needs to serve growth in communities.                     

By contrast, the proposed Section 9E would not prevent a municipality from imposing both development impact fees and other burdensome and costly mitigation requirements as a condition of development approval. 

Removal of Approval Not Required (ANR):

This opt-in approach would result in a patchwork of subdivision controls across the Commonwealth in which some communities have an ANR process and others have a minor subdivision process. Eliminating the use of ANRs would be significant from the perspective of Greater Boston Real Estate Board (GBREB) and MAR to the extent that land divisions that formerly would have qualified for ANR endorsement, would now be subject to review in a minor subdivision process, or full subdivision review if it involves the creation of more than six residential lots. This type of review will likely involve additional time, less certainty, and more burdensome conditions than the current ANR process. 

Any change to Massachusetts zoning laws must NOT make housing more expensive and more difficult to build