SENATE DOCKET, NO. 1944        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 780

The Commonwealth of Massachusetts

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PRESENTED BY:

Harriette L. Chandler

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act establishing a roadmap for housing solutions.

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PETITION OF:

SENATE DOCKET, NO. 1944        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 780

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act establishing a roadmap for housing solutions.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Section 3 of chapter 23B of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by inserting after clause (v) the following subsection:-

(w) establish, conduct and maintain an annual program of education, self-evaluation and training for members of local planning boards and zoning boards of appeals, at no cost to municipalities; provided, however that the department shall consult with the Massachusetts Association of Planning Directors, Massachusetts Association of Regional Planning Agencies and American Planning Association, Massachusetts Chapter, regarding development of the program; provided further, that the department may contract with the Massachusetts Citizen Planner Training Collaborative to provide such education, self-evaluation and training.  To the extent practicable, the education, self-evaluation and training programs shall be offered online and in various locations throughout the commonwealth.  

SECTION 2   Section 4A of chapter 40 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by adding the following paragraph:-

By a majority vote of their legislative bodies, and with the approval of the mayor, board of selectmen or other chief executive officer, any contiguous cities and towns may enter into an agreement to allocate public infrastructure costs, municipal service costs and local tax revenue associated with the development of an identified parcel or parcels or development within the contiguous communities generally, provided that said agreement is approved by the department of revenue.    

SECTION 3  Section 1A of chapter 40A of the General Laws, as so appearing, is hereby amended by inserting after the introductory paragraph the following 9 definitions:-

“Accessory dwelling unit”, a self-contained housing unit, inclusive of sleeping, cooking and sanitary facilities on the same lot as a principal dwelling, subject to otherwise applicable dimensional and parking requirements, that: (i) maintains a separate entrance, either directly from the outside or through an entry hall or corridor shared with the principal dwelling sufficient to meet the requirements of the state building code for safe egress; (ii) is not larger in floor area than 1/2 the floor area of the principal dwelling or 900 square feet, whichever is smaller; and (iii) is subject to such additional restrictions as may be imposed by a municipality, including but not limited to additional size restrictions, owner-occupancy requirements, and restrictions or prohibitions on short-term rental of accessory dwelling units.. 

“By-right” or “as of right”, development that may proceed under a zoning ordinance or by-law without the need for a special permit, variance, zoning amendment, waiver or other discretionary zoning approval.

“Lot”, an area of land with definite boundaries that is used or available for use as the site of a building or buildings. 

“Mixed-use development”, development containing a mix of residential uses and non-residential uses, including, without limitation: commercial, institutional, industrial or other uses; all conceived, planned and integrated to create vibrant, workable, livable and attractive neighborhoods.

“Multi-family housing”, a building with 3 or more residential dwelling units or 2 or more buildings on the same lot with more than 1 residential dwelling unit in each building. 

“Natural resource protection zoning”, zoning ordinances or by-laws enacted principally to protect natural resources by promoting compact patterns of development and concentrating development within a portion of a parcel of land so that a significant majority of the land remains permanently undeveloped and available for agriculture, forestry, recreation, watershed management, carbon sequestration, wildlife habitat or other natural resource values. 

“Open space residential development”, a residential development in which the buildings and accessory uses are clustered together into one or more groups separated from adjacent property and other groups within the development by intervening open land. An open space residential development shall be permitted only on a plot of land of such minimum size as a zoning ordinance or by-law may specify which is divided into building lots with dimensional control, density and use restrictions for such building lots varying from those otherwise permitted by the ordinance or by-law and open land. Such open land may be situated to promote and protect maximum solar access within the development. Such open land shall either be conveyed to the city or town and accepted by it for park or open space use, or be made subject to a recorded use restriction enforceable by the city or town or a non-profit organization the principal purpose of which is the conservation of open space, providing that such land shall be kept in an open or natural state and not be built for residential use or developed for accessory uses such as parking or roadway. 

SECTION 4   Said section 1A of said chapter 40A, as so appearing, is hereby further amended by inserting after the definition of “Special permit granting authority” the following 2 definitions:-

“TDR zoning”, zoning that authorizes transfer of development rights by permitting landowners in specific preservation areas identified as sending areas to sell their development rights to landowners in specific development districts identified as receiving areas.

“Transfer of development rights”, the regulatory procedure whereby the owner of a parcel may convey development rights, extinguishing those rights on the first parcel, and where the owner of another parcel may obtain and exercise those rights in addition to the development rights already existing on that second parcel. 

SECTION 5  Section 5 of said chapter 40A, as so appearing, is hereby amended by striking out the fifth paragraph and inserting in place thereof the following paragraph:-

Except as provided herein, no zoning ordinance or by-law or amendment thereto shall be adopted or changed except by a two-thirds vote of all the members of the town council, or of the city council where there is a commission form of government or a single branch, or of each branch where there are two branches, or by a two-thirds vote of a town meeting; provided, however, the following shall be adopted by a vote of a simple majority of all members of the town council or of the city council where there is a commission form of government or a single branch or of each branch where there are two branches or by a vote of a simple majority of town meeting:

(1)An amendment to a zoning ordinance or by-law to allow any of the following as of right: (a) multifamily housing or mixed-use development in a location that would qualify as an eligible location for a smart growth zoning district under section 2 of chapter 40R of the general laws; (b) accessory dwelling units; or (c) open-space residential development.

(2)An amendment to a zoning ordinance or by-law to allow by special permit: (a) multi-family housing or mixed-use development in a location that would qualify as an eligible location for a smart growth zoning district under section 2 of chapter 40R of the general laws; (b) an increase in the permissible density of population or intensity of a particular use in a proposed development pursuant to section 9 of chapter 40A of the general laws; or (c) a diminution in the amount of parking required for residential or mixed-use development pursuant to section 9 of chapter 40A of the general laws;

(3)Zoning ordinances or by-laws or amendments thereto that (a) provide for TDR zoning or natural resource protection zoning in instances where the adoption of such zoning promotes concentration of development in areas that the municipality deems most appropriate for such development, but will not result in a diminution in the maximum number of housing units that could be developed within the municipality; or (b) modify regulations concerning the bulk and height of structures, yard sizes, lot area, setbacks, open space, parking and building coverage requirements to allow for additional housing units beyond what would otherwise be permitted under the existing zoning ordinance or by-law.

(4)The adoption of a smart growth zoning district or starter home zoning district in accordance with section 3 of chapter 40R of the general laws.

Provided, further, that any amendment that requires a simple majority vote shall not be combined with amendments that require a two-thirds majority vote. provided, further, that if in a city or town with a council of fewer than twenty-five members there is filed with the clerk prior to final action by the council a written protest against a zoning change under this section, stating the reasons duly signed by owners of fifty per cent or more of the area of the land proposed to be included in such change or of the area of the land immediately adjacent extending three hundred feet therefrom, no change of any such ordinance shall be adopted except by a two-thirds vote of all members.  

SECTION  6  Section 9 of said chapter 40A, as so appearing, is hereby amended by inserting after the word “interests,” in line 34, the following words:- ; provided, however, that nothing herein shall prohibit a zoning ordinance or by-law from allowing transfer of development rights to be permitted as of right, without the need for a special permit or  other discretionary zoning approval. 

SECTION 7  Said section 9 of said chapter 40A, as so appearing, is hereby further amended by striking out, in line 35, the word “cluster” and inserting in place thereof the following words:– open space residential. 

SECTION 8  Said section 9 of said chapter 40A, as so appearing, is hereby further amended by striking out, in line 39, the word “cluster” and inserting in place thereof the following words:– open space residential. 

SECTION 9   Said section 9 of said chapter 40A, as so appearing, is hereby further amended by inserting, after the word “control,” in line 43, the following words:- ; provided, however, that nothing herein shall prohibit a zoning ordinance or by-law from allowing open space residential developments to be permitted as of right, without the need for a special permit or other discretionary zoning approval.  

SECTION 10. Said section 9 of said chapter 40A, as so appearing, is hereby further amended by striking out the 7th paragraph and inserting in place thereof the following paragraph:

Zoning ordinances or by-laws may also provide that special permits may be granted for reduced parking space to residential unit ratio requirements after a finding by the special permit granting authority that the public good would be served and that the area in which the development is located would not be adversely affected by such diminution in parking.  

SECTION 11  Section 9, of chapter 40A, as appearing in the 2016 official edition, is hereby further amended after the last sentence on line 127 by inserting the following:-

However, a special permit issued by a special permit granting authority shall require a simple majority vote for any of the following:

(a) multifamily housing that is located  within .5 miles of a commuter rail station, subway station, ferry terminal, bus station, or other rapid transit, provided, not less than 10 per cent of the housing is affordable to and occupied by households whose annual income is less than 80 per cent of the area wide median income as determined by the United States Department of Housing and Urban Development and affordability is assured for a period of not less than 30 years through the use of an affordable housing restriction as defined in section 31 of chapter 184.

(b) mixed-use development in centers of commercial activity within a municipality, including town and city centers, other commercial districts in cities and towns, and rural village districts, provided, not less than 10 per cent of the housing is affordable to and occupied by households whose annual income is less than 80 per cent of the area wide median income as determined by the United States Department of Housing and Urban Development and affordability is assured for a period of not less than 30 years through the use of an affordable housing restriction as defined in section 31 of chapter 184.

(c) A reduced parking space to residential unit ratio requirement, provided that a reduction in the parking requirement will result in the production of additional housing units. 

SECTION 12  Said chapter 40A is hereby further amended by inserting after section 9C the following section:-

Section 9D.  No ordinance or by-law shall prohibit an owner of land or structures who has applied or intends to apply for a building permit, any permit or approval required under this chapter, an approval under sections 81K to 81GG, inclusive, of chapter 41 or a comprehensive permit under sections 20 to 23, inclusive, of chapter 40B from requesting of the public official or local board charged with acting on the application to undertake a land use dispute avoidance process.

              If the applicant and the public official or local board agree to a land use dispute avoidance process, the mediator or facilitator for the dispute avoidance process may convene meetings or conduct interviews that shall be confidential and privileged from discovery in accordance with section 23C of chapter 233.  The mediator or facilitator shall have the protections provided under said section 23C of said chapter 233.  To the extent that public bodies are participants, their deliberations may be held in executive session to the extent permitted by clause 9 of subsection (a) of section 21of chapter 30A.             

              The applicant and the public official or local board shall, by an agreement in writing filed with the city or town clerk, stipulate and agree to extend any otherwise applicable time requirements of state or local law. Whether a resolution results, the applicant may proceed with the application without prejudice for having participated in a conflict evaluation or resolution effort and the application process shall proceed in due course as otherwise provided by law, ordinance or by-law. 

SECTION 13   Section 3 of chapter 40R of the General Laws, as so appearing, is hereby amended by inserting after the figure “40A,” in line 10, the following words:- ; provided, however, that a smart growth zoning district or starter home zoning district ordinance or by-law shall be adopted by a simple majority vote of all the members of the town council, or of the city council where there is a commission form of government or a single branch, or of each branch where there are  two branches, or by a simple majority vote of a town meeting. 

SECTION 14  Section 1 of chapter 40S of the General Laws, as so appearing, is hereby amended by striking out the word “properties” in line 51 and inserting in place thereof the following word:- buildings. 

SECTION 15  . Said section 1 of said chapter 40S, as so appearing, is hereby further amended by inserting after the figure “40R,” in line 61, the following words:- including without limitation smart growth zoning districts and starter home zoning districts as defined in section 1 of said chapter 40R. 

SECTION 16  Paragraph 1 of section 81BB of said chapter 41, as so appearing, is hereby amended by striking out the second and third sentences and inserting in place thereof the following 4 sentences:- Such civil action shall be in the nature of certiorari pursuant to section 4 of chapter 249.  A complaint by a plaintiff challenging a subdivision approval under this section shall allege the specific reasons why the subdivision fails to satisfy the requirements of the board’s rules and regulations or other applicable law and allege specific facts establishing how the plaintiff is aggrieved by the decision.  A complaint by an applicant challenging a subdivision denial or conditioned approval under this section shall similarly allege the specific reasons why the subdivision properly satisfies the requirements of the board’s rules and regulations or other applicable law.  The fourth to seventh paragraphs, inclusive, of section 17 of chapter 40A shall govern the allowance of costs and the requirement of a surety or cash bond for actions under this section.  

SECTION  17. The secretary of housing and economic development shall report annually to the clerks of the house of representatives and the senate, who shall forward the report to the house of representatives and the senate, the chairs of the joint committee on housing, and the chairs of the senate and house committees on ways and means, on the activities and status of the Housing Choice Initiative, as described by the governor in a message to the general court dated December 11, 2017, including progress made towards the production of 135,000 new units by 2025. The report also shall include a list of all cities and towns that qualify as “housing choice” communities and a list and description of grant funds disbursed to such cities and towns and a description of how the funds were used to support the production of new housing. 

SECTION 18. The Undersecretary of Housing and Community Development shall submit a report to the Joint Committee on Municipalities and Regional Government within one year of enactment which shall provide recommendations on a certification program for members of local planning boards and zoning boards of appeals, including what legislative and/or executive branch actions would be necessary to create an effective certification program. 

SECTION 19. There shall be a task force to examine and make recommendations on promoting housing production, preservation and land use planning in the commonwealth. The task force shall consist of: the senate and house chairs of the joint committee on housing, who shall serve as co-chairs; 2 members of the house of representatives, 1 of whom shall be appointed by the minority leader; 2 members of the senate, and 1 of whom shall be appointed by the minority leader.  The undersecretary of housing and community development or designee shall serve as an “ex officio” member and the task force may ask for assistance as needed from the department and the commonwealth’s quasi-public housing agencies.  The chairs may, at their discretion, name additional members representing stakeholder organizations and/or consult informally with such stakeholders. 

The task force’s scope shall include, but not be limited to: housing production and preservation for a full range of incomes and of all housing types; strategies for addressing the displacement of lower income households; modernizing the commonwealth’s zoning, planning and permitting statutes; and promoting such development consistent with commonwealth’s smart growth principles and environmental goals.

The task force shall file a report containing its findings and recommendations, including draft legislation necessary to carry out its recommendations, with the clerks of the house of representatives and senate, the senate and house chairs of the joint committee on housing and the chairs of the house and senate committees on ways and means not later than 180 days after enactment.