Zoning and Affordable Housing - Part I.
By: Arshag A. Mazmanian
In 1975, Chapter 40A, Massachusetts’ Zoning Act, was extensively revised. Section 9, Special Permits, provided several new provisions, including this second paragraph (as currently worded):
“Zoning ordinances or by laws may also provide for special permits authorizing increases in the permissible density of population or intensity of a particular use in a proposed development; provided that the petitioner or applicant shall, as a condition for the grant of said permit, provide certain open space, housing for persons of low or moderate income, traffic or pedestrian improvements, installation of solar energy systems, protection for solar access, or other amenities. Such zoning ordinances or by laws shall state the specific improvements or amenities or locations of proposed uses for which the special permits shall be granted, and the maximum increases in density of population or intensity of use which may be authorized by such special permits.” [In 1985, an amendment added to the first sentence: “installation of solar energy systems, protection for solar access”.]
This second paragraph of Section 9 introduced, inter alia, “affordable housing” into zoning.
Brookline did not immediately address affordable housing in its zoning bylaw as permitted by the second paragraph of Section 9 because it was unnecessary with rent control in effect in Brookline in 1975, and for several subsequent years.
Following the repeal of rent control, Brookline’s zoning bylaw was amended to require, for multi-residence developments above a particular number of units, provision for a relatively small percentage of the total units as affordable housing units on the project site.
This caused concern for developers of multi-residence projects that would require including the affordable units on the project site, for various reasons, including marketing of high priced market rate units on the same site with a few affordable units. As a result, the zoning bylaw was amended to provide alternatives to requiring the affordable units on site: providing the required affordable units on some other site; or, permitting a payment to an affordable housing fund in lieu of such affordable units.
The language of the second paragraph of Section 9 does not specifically state that the affordable units are required to be on site; nor does it specifically state that the affordable units may be provided on another site; nor does it specifically state that payments may be made in lieu of such affordable units. In addition to affordable housing, the second paragraph of Section 9 lists other “amenities” such as “open space”, “traffic or pedestrian improvements”, “solar energy” and “solar access”. It would seem that these “amenities” that would allow increased density/intensity of development on a site subject to a special permit should have some direct or as least indirect connection to such site. For example, should the second paragraph of Section 9 allow for providing “open space”, “traffic or pedestrian improvements”, “solar energy” or “solar access” on another site (or sites) quite some distance from the site subject to the special permit? Common sense and statutory construction rules would seem to suggest a requirement of a direct or indirect connection to the site to be developed under the special permit. This would also seem to apply to the “amenity” of affordable housing.
When Section 9 was adopted by the Legislature in 1975, it included this 15th paragraph:
“Zoning ordinances or by laws shall also provide that uses, whether or not on the same parcel as activities permitted as a matter of right, accessory to activities permitted as a matter of right, which activities are necessary in connection with scientific research or scientific development or related production, may be permitted upon the issuance of a special permit provided the granting authority finds that the proposed accessory use does not substantially derogate from the public good.” [In 1990, by amendment the second sentence substituted “production” for “quality engineering.”]
This 15th paragraph specifically permits placing certain uses on parcels other than the one for which the special permit is to issue. In the second paragraph of Section 9, the Legislature did not specify some other parcel. This strongly suggests that the “amenities” referred to in the second paragraph of Section 9, including affordable housing, are to have some physical connection, directly or indirectly, to the special permit site. In my view, the zoning bylaw provisions allowing affordable units on another site or in lieu of payments to an affordable housing fund go well beyond the scope of the second paragraph of Section 9. Purely economic linkage payments by a developer are generally frowned upon, except apparently in Boston (which is not subject to Chapter 40A). Note that the second paragraph of Section 9 after specifying certain “amenities” references “or other amenities.” If the “amenities” did not relate to the site for which a special permit is being sought “other amenities” might be construed to include developer funding to improve Town Hall! (Some developers might call such “Extortion.”)
Constructive comments of attorneys and other readers would be welcomed.
[In a follow-up to this installment, I plan to focus upon the second sentence of the second paragraph of Section 9 to address whether Brookline’s zoning bylaw is in compliance. Also, in a still further installment, I plan to address whether Chapter 40A is an appropriate or meaningful vehicle for providing affordable housing in Brookline in contrast with Chapter 40B.]
