March 2023

AG Campbell Issues Advisory on MBTA Zoning Mandate

Responding to the pushback by some cities and towns to the MBTA Community multi-family zoning mandate in the Zoning Act, Attorney General Andrea Campbell recently issued an Enforcement Advisory to assist municipal officials and residents in understanding the requirements of the law.

G.L. c. 40A, §3A was enacted by the Legislature as part of the Housing Choice Law and was intended to address the commonwealth’s acute need for housing by facilitating the development of transit-oriented, multi-family housing. It requires the 177 MBTA communities to create at least one zoning district of reasonable size in which multi-family housing is permitted “as of right.” The district must also be located within a half mile of a transit station and allow for development at a minimum density of fifteen units per acre. 

Campbell wrote that “[b]y any measure, Massachusetts is in a housing crisis that is inflicting unacceptable economic, social, and environmental harms across our state–particularly on working families and people of color.” Her Advisory makes it unambiguous that all MBTA Communities must comply with the law and that those communities that fail to comply may be subject to civil enforcement action. 

Non-compliant MBTA Communities are rendered ineligible to receive certain forms of state funding. Importantly, the Advisory clarifies the misperception that a community can avoid its obligations under the law by forgoing this funding. “The Law requires that MBTA Communities ‘shall have’ a compliant zoning district and does not provide any mechanism by which a town of city may opt out of this requirement,” wrote Campbell.

In addition, the Attorney General warns that MBTA Communities that fail to comply with the law also risk liability under federal and state fair housing laws.

A copy of the Enforcement Advisory can be found here.

Gov. Healey Files Bill for Housing Secretariat

Fulfilling a campaign promise she made last year, Governor Maura Healey filed legislation to split the Executive Office of Housing and Economic Development into two separate cabinet offices: the Executive Office of Economic Development and the Executive Office of Housing and Livable Communities. In doing so, it is her intention to have a cabinet-level office dedicated entirely to increasing the supply of accessible and affordable housing in Massachusetts.

The Executive Office of Housing and Livable Communities will be the principal office within the executive branch responsible for creating and carrying out housing policy for the Healey-Driscoll Administration. It will assume all of the powers and responsibilities of the existing Department of Housing and Community Development. The new executive office will be responsible for expending funds, marshaling resources, and advancing innovative solutions to provide safe, accessible, affordable, and environmentally sustainable housing for all residents and for supporting the growth of vibrant, livable communities throughout the Commonwealth. 

The mission of the Executive Office of Housing and Livable Communities will include administering programs focused on housing production, housing rehabilitation, housing preservation, housing affordability, fairness and equity in housing opportunity, emergency and transitional housing, and housing stability and security.

The governor’s bill, H. 43, has been referred to the Joint Committee on State Administration and Regulatory Oversight which is chaired by Senator Nick Collins (D-Boston) and Rep. Antonio Cabral (D-New Bedford). That committee must hold a public hearing on the bill within 30 days of filing. The HBRAMA strongly supports Governor Healey’s proposal and looks forward to testifying on behalf of its prompt passage by the Legislature.

Municipalities Begin Adoption of Specialized Stretch Energy Code

Having become effective on December 28, 2022, several communities have moved quickly to adopt the Municipal Opt-in Specialized Stretch Energy Code promulgated by the Department of Energy Resources (DOER) pursuant to the climate bill enacted by the Legislature in 2021. The cities of Cambridge, Somerville and Watertown were the first to adopt the code by vote of their city councils. Brookline followed suit at a Special Town Meeting held in January. In all of these communities, the Municipal Opt-in Specialized Stretch Energy Code will become mandatory beginning on July 1, 2023.

Newton’s city council recently voted to adopt the Municipal Opt-in Specialized Stretch Energy Code effective January 1, 2024. Wellesley will consider a warrant article at its Annual Town Meeting on March 27 to do so also, with an effective date of January 1, 2024. And Mayor Michelle Wu recently announced that she will seek city council approval for Boston to join these communities in adopting the code.

The Municipal Opt-in Specialized Stretch Energy Code may be adopted by any of the 351 cities and towns in Massachusetts by either a vote of a city council or at Town Meeting. While the regulations do not require a concurrency period under which a building can be constructed under either the existing Base Code or Stretch Energy Code, the DOER is encouraging municipalities to provide for a minimum 6-month delayed effective date following local approval so that projects can be designed or revised to comply with the new code.

HBRAMA Submits Comments on Draft Regulations for Fossil Fuel Ban

The Department of Energy Resources (DOER) recently closed the comment period on draft regulations for the 10-Community Fossil Fuel Demonstration Project that will allow certain communities to ban all new future fossil fuel infrastructure. The ban would apply to all newly constructed buildings and major renovations to existing buildings. 

The Home Builders and Remodelers Association of Massachusetts submitted two letters of comments to the Department of Energy Resources on draft regulations. The HBRAMA’s comments were included in a letter sent to various affordable housing organizations, as well as in a letter from the Massachusetts Coalition for Sustainable Energy (MCSE) of which it is a member.

In its comments, the HBRAMA urged the DOER to take steps to provide affordable housing and mixed-income housing providers with flexibility and support to build fossil-fuel-free buildings without creating financial hardships for residents or contributing to the loss of affordable housing. Among the suggestions made to the DOER, were the following:

• Provide funding and technical assistance for affordable housing projects already in progress;
• Define “major renovations” to ensure that fossil free standards will only apply to projects whose scope of work includes replacing mechanical and electrical systems;
• Create complementary financial and technical assistance programs to support affordable housing providers in adopting high-efficiency, all-electric construction in new and existing affordable housing
• Create a lower utility rate design for low- and moderate-income residents and affordable housing providers that will see an increase in their utility bills because of the switch from gas to electricity;
• Ensure that individual projects located in these communities do not get saddled with exorbitant infrastructure upgrade costs or delayed permitting issues.

In the letter from MCSE, the HBRAMA urged the DOER to be explicit in requiring that communities seeking to participate in the project clearly demonstrate to the department the plans, methods and forms they will use to satisfy compliance reporting requirements relative to emission impacts, building and operating costs, and housing affordability. 

The 10 communities that are considered likely to seek participation in the demonstration project are:

• Cambridge
• Newton
• Brookline
• Lexington
• Arlington
• Concord
• Lincoln
• Acton
• Aquinnah
• West Tisbury

The DOER is expected to finalize the regulations for the Demonstration Project shortly. 

Copies of the letters can be found here and here.

Bonnie Heiple Appointed New DEP Commissioner

Energy and Environmental Affairs Secretary Rebecca L. Tepper recently announced the appointment of Bonnie Heiple as Commissioner of the Massachusetts Department of Environmental Protection. MassDEP works to protect and enhance the Commonwealth's natural resources to foster the health, safety, and welfare of all people. Heiple started her new position on March 20.

Bonnie Heiple comes to MassDEP from the law firm Wilmer Cutler Pickering Hale and Dorr, where she practiced environmental and energy law nationally. Her environmental work includes litigation, regulatory compliance, and advising clients in rapidly evolving areas, including environmental, social, and governance issues. Her energy practice focused on permitting renewable energy generation, transmission, and storage projects across the U.S. A graduate of Boston University School of Law and magna cum laude from Bucknell University. 

Membership has its privileges

AN EXLUSIVE POLITICAL & ECONOMIC  BRIEFING JUST FOR YOU! 

SAVE THE DATE - THURSDAY, MARCH 30TH AT 2:00 PM 

As a member of the Home Builders Association, you understand the importance and value of our Association advocating on behalf of home builders at the local, state and federal levels, and while supporting the election of pro-building pro-business members of Congress.

In appreciation for your membership, we have arranged an exclusive live briefing by Jim Tobin, NAHB EVP-Government Affairs & Chief Lobbyist and Danushka Nanayakkara-Skilling, NAHB AVP- Forecasting & Analysis. This is a member only event.

Log on to hear the latest updates on the political landscape in Congress and the economy and how both might affect your business. To register, email admin@hbrama.com and the Zoom link will be sent to you prior to the meeting.