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Legislature passes Affordable Homes Act
Bill contains major victory for single-family home builders!
As one of its last acts before adjourning formal sessions for the year, the Massachusetts Legislature gave final approval to the Healey-Driscoll’s housing bond bill, also known as the Affordable Homes Act. Among the 145 sections of the nearly 200-page bill, is a proposal from the Home Builders and Remodelers Association of Massachusetts that will create smaller by-right single-family house lots across the commonwealth to facilitate the construction of so-called “starter homes.” This important amendment to the Zoning Act was the brainchild of Attorney Robert Brennan of the law firm Smolak & Vaughan LLP, Chair of the Government Relations Committee of the HBRAMA, and was drafted by association lobbyist Ben Fierro of the law firm Lynch & Fierro LLP. It’s inclusion in Section 10 of House Bill No. 4977 is a major victory for the members of the HBRAMA.
Some of the key policy provisions of benefit to the members of the HBRAMA are the following:
Adjacent Lots
Section 10 of H. 4977 amends the Zoning Act (G.L. c. 40A, § 6) to establish that adjacent lots under common ownership shall not be treated as a single lot, for local zoning purposes, if at the time of recording or endorsement the lots: (i) conformed to then existing requirements of area, frontage, width, yard or depth; (ii) are located in a zoning district that allows for single-family residential use; (iii) contain not less than 10,000 square feet in area; (iv) has a minimum of 75 feet of frontage; provided, however, that a home built on such a lot may not exceed 1850 square feet in heated living space, shall not contain fewer than 3 bedrooms, and shall not be used as a seasonable home or short-term rental.
Accessory Dwelling Units
Sections 7 of H. 4977 amends the Zoning Act (G.L. c. 40A, §1A) by striking out the definition “Accessory dwelling unit” and inserting in place the following definition:-
“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 gross floor area than 1/2 the gross 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 and restrictions or prohibitions on short-term rental, as defined in section 1 of chapter 64G; provided, however, that no municipality shall unreasonably restrict the creation or rental of an accessory dwelling unit that is not a short-term rental.
Section 8 of H. 4977 amends the Zoning Act (G.L. c. 40A, § 3) adding the following paragraph:-
No zoning ordinance or by-law shall prohibit, unreasonably restrict or require a special permit or other discretionary zoning approval for the use of land or structures for a single accessory dwelling unit, or the rental thereof, in a single-family residential zoning district; provided, that the use of land or structures for such accessory dwelling unit under this paragraph may be subject to reasonable regulations, including, but not limited to, 310 CMR 15.000 et seq., if applicable, site plan review, regulations concerning dimensional setbacks and the bulk and height of structures and may be subject to restrictions and prohibitions on short-term rental, as defined in section 1 of chapter 64G. The use of land or structures for an accessory dwelling unit under this paragraph shall not require owner occupancy of either the accessory dwelling unit or the principal dwelling; provided, that not more than 1 additional parking space shall be required for an accessory dwelling unit; and provided further, that no additional parking space shall be required for an accessory dwelling located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station. For more than 1 accessory dwelling unit, or rental thereof, in a single-family residential zoning district there shall be a special permit for the use of land or structures for an accessory dwelling unit. The executive office of housing and livable communities may issue guidelines or promulgate regulations to administer this paragraph.
Abutter Appeals
Sections 11 of H. 4977 amends the Zoning Act (G.L. c. 40A, § 17) by inserting after the fourth sentence the following sentence:-
If the complaint is filed by someone other than the original applicant, appellant or petitioner, then each plaintiff, whether or not previously constituting parties in interest for notice purposes, shall also sufficiently allege and must plausibly demonstrate that measurable injury, which is special and different to such plaintiff, to a private legal interest that will likely flow from the decision through credible evidence.
Section 12 of H. 4977 amends the Zoning Act (G.L. c. 40A, § 17) amended by striking out the third paragraph and inserting in place thereof the following paragraph:-
The court, in its discretion, may require a plaintiff in an action under this section appealing a decision to approve a special permit, variance or site plan to post a surety or cash bond in an amount of not more than $250,000 to secure the payment of and to indemnify and reimburse damages and costs and expenses incurred in such an action 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 court shall consider the relative merits of the appeal and the relative financial means of the plaintiff and the defendant. Nothing in this section shall require bad faith or malice of a plaintiff for the court to issue a bond under this section.
Section 13 of H. 4977 amends the Zoning Act (G.L. c. 40A, § 17) by striking out the sixth paragraph and inserting in place thereof the following paragraph:-
Costs, including reasonable attorneys’ fees, in an amount to be fixed by the court may be allowed against the party appealing from the decision of the board or special permit granting authority if the court finds that the appellant or appellants acted in bad faith or with malice in making the appeal to court.
Veterans Housing
Section 14 of H. 4977 amends the Zoning Act (G.L. c. 40A) by adding a new §18 as follows:
(a) Notwithstanding any general or special law to the contrary, a city or town that permits or adopts inclusionary zoning, incentive zoning, a density bonus ordinance or by-law pursuant to this chapter or a housing production plan submitted to the executive office of housing and livable communities may enter into an agreement with a housing developer or residential development owner to provide a preference for affordable housing to low- or moderate-income veterans, as defined in clause Forty-third of section 7 of chapter 4. The preference shall be for up to 10 per cent of the affordable units in a particular development.
(b) The preference under this section shall be established in the applicant selection process for available affordable units. Applicants who are veterans and who apply within 90 days of the initial marketing period of the development shall receive preference for the rental of up to 10 per cent of the affordable units. After the first 90 days of the initial marketing period, if any of the units subject to the preference remain available, applicants from the general public shall be considered for occupancy. Following the initial marketing period, qualified applicants who are veterans shall be placed on a waiting list for the preference-occupied units for veterans and on any general waiting list. The veterans on the preference-occupied waiting list shall be given preference for affordable units, as the units become available, whenever the percentage of preference-occupied units falls below 10 per cent.
(c) Any agreement to provide affordable housing preferences for veterans pursuant to this section shall not affect a municipality’s ability to receive credit for the unit for affordable housing pursuant to chapter 40B or any other law. The agreement may be monitored by a third party assigned by the municipality.
(d) This section shall not require an increase in the existing amount of affordable units set by the city or town.
(e) The city or town may require proof of veteran status and income eligibility as the city or town deems necessary.
40B Appeals to the Housing Appeals Committee
Section 15 of H. 4977 amends the Comprehensive Permit Act (G.L. c. 40B, §22) by inserting after the word “ applicant”, in line 20, the following:- ; provided, however, that the committee shall provide notice to the secretary of any such extension or other failure to perform action by the deadlines set forth in this section and the reason for such delay; provided further, that the secretary shall annually, not later than November 1, submit to the governor and the joint committee on housing a summary of such delays including, but not limited to: (i) any deadlines missed pursuant to this section for each applicable appeal; (ii) the reason for any such delay; (iii) the total number of days, from the date of the committee’s receipt of the applicant’s statement of the prior proceedings, in which the committee ultimately issued a written decision or, if such appeal is in progress at the time the report is submitted, the projected number of days beyond the deadlines listed herein as may be necessary for the committee to issue a decision; and (iv) the board that issued the denial or conditions and requirements being appealed by the applicant.
This historic legislation will provide $5.1 billion in capital funding authorization and a wide range of housing policies to support the creation and preservation of tens of thousands of homes.
Bonding and Tax Credit Provisions
The Affordable Homes Act includes significant increases in funding authorizations to meet the range of the commonwealth's housing challenges. It includes $2.2 billion in bond authorization for state public housing, a doubling of the Affordable Housing Trust Fund ($800 million) and the Housing Innovations Fund ($200 million), and a nearly tripling of the Housing Stabilization Fund ($425 million) which included $10 million for the Small Properties Acquisition Fund.
H. 4977 also includes investments in programs that had not before been included in a bond bill, including $100 million for the CommonWealth Builder Program, $50 million for the Momentum Fund to accelerate the completion of mixed-income multifamily housing, $275 million for Green Housing, and $175 million for Housing Choice Infrastructure.
The bill creates and expands tax credit programs that will help spur production, including a new $10 million annual Homeownership Production Tax Credit. It also increases the Community Investment Tax Credit to $15 million and doubles the Historic Rehabilitation Tax Credit to $110 million annually through the year 2030 to help preserve historic buildings and put them to new use, including creating affordable housing.
What was left out
As important as what was included in the final compromise bill, was what was left out. Despite intensive lobbying by some organizations and elected officials, H. 4977 does not include a local option real estate transfer tax, a local option rent control, a local option fire sprinkler mandate for newly constructed one and two-family homes, a local option Tenant Right of First Refusal, an increase in the deeds excise tax, a lowering of the threshold for the adoption of inclusionary zoning ordinances and bylaws, or other proposals to weaken Chapter 40B or the MBTA Communities Multi-family Zoning Law.
The HBRAMA is grateful to Governor Maura Healey, Lt. Gov. Kim Driscoll, EOHLC Secretary Ed Augustus, House Speaker Ronald Mariano, House Ways and Means Chair Aaron Michlewitz, House Housing Committee Chair James Arciero, Senate President Karen Spilka, Senate President Pro Tempore William Brownsberger, Senate Ways and Means Chair Michael Rodrigues, and Senate Housing Committee Chair Lydia Edwards for their willingness to solicit and support the suggestions of the association to develop a bill that will go a long way in addressing the commonwealth’s housing crisis.
Governor Healey is expected to sign the bill into law next week.
A copy of H. 4977 can be found [here].
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