October 2022

10-Community Fossil Fuel Ban Becomes Law

Despite the opposition of the HBRAMA and a coalition of real estate, housing and business organizations, as well as labor unions and utility companies, a proposal to allow up to ten cities and towns to restrict or prohibit the use of fossil fuels in most construction or major renovation projects became law upon Gov. Baker’s signature on a climate and offshore wind bill. While the governor expressed concerns that such a ban on fossil fuels could impede housing production, he signed the bill anyway because the remaining provisions were necessary for the Commonwealth to achieve the reduction in greenhouse gas emissions as required by the Global Warming Solutions Act of 2008.

It is not clear which ten communities will be selected to participate in what is described in the law as a “demonstration project” to be administered by the Department of Energy Resources (DOER), but the cities of Boston, Worcester, Northampton and Somerville have already expressed interest in participating. The fossil fuel ban would not apply to research laboratories for scientific of medical research or to hospitals or other healthcare facilities.

A city or town must have local approval by either a vote of city council or town meeting and submit a “home rule” petition to the Legislature to participate in the program. The following communities had previously submitted home rule petitions: Acton, Arlington, Aquinnah, Brookline, Cambridge, Concord, Lexington, Lincoln, and Newton.

To be eligible to participate in the demonstration project, a community must also have met the following housing criteria:

• Achieved the 10% threshold on the subsidized housing inventory under Chapter 40B or have a Housing Production Plan approved by the Department of Housing and Community Development; or 
• Has approved a zoning ordinance or by-law that provides for at least 1 district of reasonable size in which multi-family housing is permitted as of right.

Communities have 18 months from the effective date of the new law (July 31, 2022) to achieve compliance with the above-referenced requirements in order to participate in the project. The DOER is required to monitor the impacts of the ban on building costs, operating costs, the number of housing permits, housing affordability, and other criteria. It must also issue a report by September 30, 2025, with recommendations for the continuation or termination of the demonstration project.

Starter Home Zoning Awaits Action by the Legislature

The fate of legislation to create a new Chapter 40Y of the General Laws – the Starter Home Zoning District Act – hangs in the balance as the State Senate and House of Representatives continues to negotiate the differences between competing economic development bills passed by each branch. Without a compromise being agreed to before the end of the year, action on the Starter Home proposal will have to await the convening of a new Legislature in 2023.

Earlier this year, Gov. Baker filed an omnibus economic development bill that contained, among other provisions, amendments to Chapter 40R and the creation of a Chapter 40Y to increase the likelihood of success of the Starter Home Program championed by the HBRAMA. Chapter 40R, the Smart Growth Zoning and Housing Production Act, was amended in 2016 to extend the law’s financial incentives to cities and towns if they adopt an overlay zoning district that permits the development of smaller homes (not exceeding 1850 sq. ft. of heated living area) on smaller lots (at a density of no less than 4 units to an acre).

The problem with the current law is that those homes must be located in a so-called “smart growth” location. That is largely the reason that no “starter home districts” have been created and no ‘starter homes” have been built. The enactment of Chapter 40Y would resolve many of the problems of the current law. No longer would a starter home zoning overlay district have to be located in a “smart growth location” approved by the state. Rather, an eligible starter home zoning overlay district would be any location that a community determines is appropriate.

Further, the current requirement that 20% of the units in a starter home development be affordable to individuals and families whose incomes do not exceed 80% of Area Median Income, would be reduced to 10% of the units at 110% of AMI, thereby making the economics of such a project more workable. And by creating an entirely new statute, the existing regulations governing stater homes can be rewritten to make them less burdensome for municipalities and less costly for developers.

Chapter 40Y is a priority of the HBRAMA and it will continue to lobby for its enactment into law until the very last day of the current legislative session.  

State Issues Final Guidance for MBTA Zoning Mandate

The Department of Housing and Community Development has promulgated final guidelines to determine if an MBTA community is in compliance with multi-family zoning mandate in the Zoning Act (G.L. c. 40A, § 3A). The purpose of Section 3A is to encourage the production of multi-family housing by requiring MBTA communities to adopt zoning districts where multi-family housing is allowed as of right and that meet other requirements set forth in the statute. It was a key feature of the Housing Choice Law strongly supported by the HBRAMA.

Section 3A of the Zoning Act provides: An MBTA community shall have a zoning ordinance or by-law that provides for at least 1 district of reasonable size in which multi-family housing is permitted as of right; provided, however, that such multi-family housing shall be without age restrictions and shall be suitable for families with children. For the purposes of this section, a district of reasonable size shall: (i) have a minimum gross density of 15 units per acre, subject to any further limitations imposed by section 40 of chapter 131 and title 5 of the state environmental code established pursuant to section 13 of chapter 21A; and (ii) be located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station, if applicable.

The final guidance document followed two prior drafts that were subject to public comment. The HBRAMA was pleased that the department had accepted several of its recommendations.

The final guidelines incorporate several changes, including:

• Revised Community Categories: MBTA Communities are now categorized as rapid transit, commuter rail, adjacent, or adjacent small town. The “bus service” category has been eliminated.
• Significant Adjustments for Small and Rural Towns with No Transit Stations: The final guidelines eliminate the minimum land area requirement and reduce the multi-family unit capacity requirement for communities with a population of less than 7,000 or less than 500 residents per square mile.
• Changes to the Reasonable Size Criteria: The guidelines establish “circuit breakers” that prevent multi-family unit capacity from exceeding 25% of a community’s existing housing stock, or the minimum land from exceeding 1.5% of its total developable land area.
• Tailored District Location Requirements: The portion of a multi-family zoning district that must be located within a half mile of a transit station now varies based on the amount of developable station area within each MBTA community. Communities with more developable station area land will be required to have more of their multi-family districts within a half mile of transit stations. A community with less than 100 developable acres within a half mile of a station will be free to choose any appropriate location.

A copy of the Final Guidance document can be found [here].

DOER Finalizes New Energy Codes

Almost exactly 18 months after Gov. Baker signed Chapter 8 of the Acts of 2021, An Act Creating A Next-Generation Roadmap For Massachusetts Climate Policy, the Massachusetts Department of Energy Resources (DOER) released final code language for its Stretch Energy Code and Specialized Municipal Opt-in Code. The DOER’s Final Regulations 225 CMR 22.00 and 225 CMR 23.00 are anticipated to be filed with the Secretary of State in December.

The Stretch Energy Code (Stretch Code) regulations have since 2009 been published in 780 CMR 115.AA under the jurisdiction of the Board of Building Regulations and Standards (BBRS). Chapter 8 of the Acts of 2021 moved the authority for the Stretch Code promulgation from the BBRS to the DOER and at the same time required the development of a new Municipal Opt-in Specialized Energy Code (Specialized Code).

The updated Stretch Code as newly incorporated into DOER regulations (225 CMR) is divided into 2 chapters, following the format of the IECC.

1. 225 CMR 22 - Residential Low-rise Construction Stretch Energy Code
2. 225 CMR 23 - Commercial (and all other) Construction Stretch Energy Code

The Specialized Code includes additional requirements that form an Appendix to each of the chapters of the Stretch Code.

1. 225 CMR 22 Appendix RC – Residential Low-rise Construction Specialized Code
2.  225 CMR 23 Appendix CC – Commercial (and all other) Construction Specialized Code

The Stretch code has been available since late 2009 and has been widely adopted by cities and towns in Massachusetts. As a result, the update to the Stretch Code will not require an additional vote in those existing Stretch Code municipalities. The Specialized Code is a new option and is adopted as a municipal opt-in code similar to the Stretch Code process.

The current Base Energy Code is being updated along with the rest of the BBRS-regulated building codes to a 10th Edition MA Code that will be based on the International Code Council (ICC) 2021 edition. Combined with the Stretch Code update and new Specialized Code contained in DOER’s proposed regulations, this results in a tiered set of 3 energy code options for municipalities as follows:

• Updated Base Energy Code = IECC 2021 with MA amendments
• Updated Stretch Code = IECC 2021 with MA amendments + Stretch Code amendments
• Specialized Code = IECC 2021 with MA amendments + Stretch Code amendments + Specialized Code appendices

The Specialized Code must be available for adoption by cities and towns by December 24, 2022. When a municipality votes to adopt the Specialized Code, DOER recommends that the requirements take effect for new building permit applications beginning on the next January 1st or July 1st, whichever is a minimum of 6 months after the municipal vote. This phase-in period, also utilized by new Stretch Code municipalities, allows an orderly transition for developers, designers, and builders as well as additional training time for municipal code officials.

A PDF of the new Energy Codes can be downloaded [here].

HBRAMA Files Amicus Brief on Chapter 40B

The HBRAMA recently joined with other housing and real estate groups in filing an amicus curiae (“friend of the court”) brief with the Supreme Judicial Court on the question of whether a provision in the Housing Choice Law intended to discourage meritless appeals of housing projects applies to comprehensive permits issued under Chapter 40B.

Section 25 of the Housing Choice Law (Chapter 358 of the Acts of 2020) amended the Zoning Act (G.L. c. 40A, § 17) to add a new provision to allow a court, in its discretion, to require a plaintiff appealing a decision of a local planning board, zoning board of appeals or city council approving a special permit, variance or site plan, to post a surety or case bond in an amount not exceeding $50,000 to secure payment of costs if the court finds that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or cash bond on the plaintiffs.

The HBRAMA has long argued that land use appeals without merit are frequently used as a tactic to obstruct housing development. These appeals have delayed worthwhile housing development projects for a decade or longer. In some cases, developers have withdrawn permit applications because they cannot afford the cost and delay of litigation. And because they are often controversial, comprehensive permits to develop affordable rental housing under Chapter 40B are most frequently the victim of such appeals.

In the case of Terrence Marengi Jr. & others, v. 6 Forest Road, LLC & others, SJC-13316, the Salisbury Zoning Board of Appeals approved a comprehensive permit approved for the construction of a 56-unit condominium development. Six direct abutters to the property, together with two other property owners whose drinking water wells lie in close proximity to the site, filed a complaint appealing the decision of the board to approve the project.

The developer of the project, 6 Forest Road, LLC, sought the maximum bond ($50,000) allowed under the recent amendment to the Zoning Act. In support of the motion for bond, 6 Forest Road, LLC claimed the plaintiffs’ bond should indemnify him from rising “construction costs and carrying costs,” including “[c]osts for lumber”, “cost of framing materials”, as well as rising interest rates and attorney and consultant fees. The court granted 6 Forest Road, LLC’s motion for a bond, although it reduced the bond from $50,000 to $35,000.

The plaintiffs filed an appeal in the Appeals Court seeking to reverse the decision of the trial court to grant the bond. That appeal was then taken by the SJC on its own initiative. The issues in this case are whether the provision of the Housing Choice Law adding a bond to secure payment of costs in appeals of “special permit, variance or site plan” decisions apply to appeals of comprehensive permits and whether, even if applicable, there has to be a finding of “bad faith or malice” required to award costs.