For many decades, local zoning has been the principal limit on new housing production, especially multifamily housing. While many factors and limitations such as access to water, wastewater, physical constraints, and the housing market all contribute to production rates, zoning has had an outsized role. For the last fifty years it has been illegal to build any housing type other than single family homes on the vast majority of residentially zoned land in Massachusetts. Currently, the majority of zoning decisions are made locally.
The legal authority for the state to regulate land use was established in 1918 with the adoption of Article 60 of the state constitution. Article 60 grants the legislature the authority to limit the construction and use of buildings in specified areas; that is, to zone land for certain uses. Article 60 makes no mention of municipalities. In 1920, the legislature adopted the state’s Zoning Enabling Act, Chapter 40A of the Massachusetts General Laws. This act codified the legal authority under which municipalities could regulate land use.
Prior to the adoption of 40A, municipal authority to regulate certain uses had not been enshrined in legislation or case law. Town meetings had no authority to specify what land uses were permissible anywhere, so landowners had largely unfettered development rights. Through the Zoning Act and its successors, the legislature specifies what municipalities may regulate through zoning, and withholds or conditioned other rights. For example, the MBTA Communities Act modified the Zoning Enabling Act to establish a requirement that municipalities have at least one zone of reasonable size where multifamily zoning is allowed ‘as of right.’ The Affordable Homes Act further modified 40A by including ADUs as a “protected use” that municipalities must allow as of right, with reasonable restrictions.
Zoning and land use regulations are adopted at the local level through varying processes depending on the structure of each municipal government. In general, zoning is adopted by the chief legislative body, either Town Meeting, Town Council, or City Council.
Much of Massachusetts is covered by zoning districts that are quite simple: single family homes with a minimum lot area of one-half to two acres. Until recently, very few municipalities have by-right zoning for multifamily housing, requiring developers to seek variances or a special permit for each project. The process of obtaining a special permit adds time, expense, and uncertainty to the entitlement process, effectively discouraging developers from even attempting to produce housing in certain communities.
The process through which many cities and towns solicit public feedback on development proposals can be unrepresentative of the communities in which those deliberations take place. Research in Massachusetts has found that participants in municipal developments are older, more likely to be White, and more often homeowners than the general public.
Currently, the state has supported programs that would encourage and assist communities in enabling housing friendly zoning.
- MBTA Communities Law:
- Housing Choice Initiative
- 40R, Smart Growth Zoning Overlay