Frequently Asked Questions
What is zoning and why is it important?
Zoning is a key tool used at the local level to shape a municipality through requirements for land use. It provides the legal framework for what can and cannot be developed on a parcel of land, including the types of uses that are allowed, size and siting of structures, amount of required parking, open space considerations, and more. Well-crafted zoning should tell the private sector about what kind of development the Town wants to see and where.
Why not just “opt-out?”
Opting out is not an option. The Attorney General, issued an advisory to municipalities clearly stating that noncompliance with the MBTA Communities Law will be considered a discriminatory action.
“All MBTA Communities must comply with the Law. Communities that do not currently have a compliant multifamily zoning district must take steps outlined in the DHCD guidelines to demonstrate interim compliance. Communities that fail to comply with the Law may be subject to civil enforcement action. Importantly, MBTA Communities cannot… avoid their obligations under the Law by foregoing this funding. The Law requires that MBTA Communities “shall have” a compliant zoning district and does not provide any mechanism by which a town or city may opt out of this requirement.
“MBTA Communities that fail to comply with the Law’s requirements also risk liability under federal and state fair housing laws. The Massachusetts Antidiscrimination Law and federal Fair Housing Act prohibit towns and cities from using their zoning power for a discriminatory purpose or with discriminatory effect. An MBTA Community may violate these laws if, for example, its zoning restrictions have the effect of unfairly limiting housing opportunities for families with children, individuals who receive housing subsidies, people of color, people with disabilities, or other protected groups.”
In addition to being discriminatory, it must be noted that many of the Town’s Plans note the need to encourage additional housing through the redevelopment of key areas of Town. Compliance with the MBTA Communities Law is one strategy the Town has available to provide additional housing choice and diversity.
How much discretion does each MBTA community have with respect to where a multifamily district is located?
A multi-family zoning district must be located within 0.5 miles of a transit station, with at least half of the district’s land area within the 0.5-mile radius, when that is possible. Where it is not possible to locate a district within 0.5 miles of a transit station, cities and towns otherwise have considerable flexibility to decide where to locate these districts. These districts may be located where there are existing single-family, multi-family, commercial or other existing uses and structures, or in areas ready for redevelopment. DHCD strongly encourages cities and towns to consider multi-family districts where there is existing or planned pedestrian and bicycle access to a transit station, or that otherwise are in areas of concentrated development. Regardless of location, each community must demonstrate that the zoning allows for multi-family housing that meets or exceeds the required unit capacity and at a density that meets the statutory minimum.
What is Unit Capacity?
Unit capacity is a legal envelope of allowed buildings; an estimated count of technically allowed dwelling units. It is important to note that zoning capacity is not a calculation of how much new housing will be built. Zoning capacity is a calculation of how many units could be built if every parcel started as a blank slate and was built to a theoretical maximum capacity. The actual number of new units built by a property owner will be less than the theoretical maximum due to the practical limitations of design, livability, and marketability.
Image source: https://www.desegregatect.org/definitions
How Many new housing units will be built in Andover as a result of this Law?
There is no mandate to build any new housing. Andover is only required to adopt a multi-family zoning district that would allow the development of multi-family units by right.
What will this cost Andover?
- If projects are created under this zoning, they will be constructed and financed by developers and property owners.
- The Law does not require a municipality to install new water or wastewater infrastructure or add to capacity of existing infrastructure to accommodate future multi-family housing within the district.
What about Traffic and Parking?
One of the primary goals of encouraging development near transit and along or near commercial areas is to reduce reliance on cars, and to make cycling and walking more convenient. By building more housing with convenient access to public transportation and commercial and civic opportunities, we give people more choice in how they get to work, school, shopping, and leisure opportunities, reducing the need to drive for every trip.
Could the MBTA multi-family overlay district increase traffic?
Site Plan Review of a specific multi-family project proposal will look at vehicular access and circulation on the site and allow for the incorporation of conditions to help mitigate impacts.
What are Zoning Overlay Districts?
Overlay districts are zoning districts that have been superimposed over existing districts, in accordance with the Zoning Act, to create new requirements and opportunities. They are often used to protect sensitive environmental features, such as aquifers and wetlands, to promote the adaptive reuse of historic properties, and to allow greater flexibility or additional uses, particularly with residential or commercial use.
What does “as of right” mean?
Section 3A requires that “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.” “As of right” means development may proceed in that district under a zoning ordinance or by-law without the need for a discretionary process such as a special permit, variance, zoning amendment or other discretionary zoning approval. While on its face as of right may seem like a straightforward concept, there are many nuances to consider, and the Executive Office of Housing and Livable Communities (EOHLC) will review submitted zoning text to determine whether zoning provisions allow for multi-family housing as of right.
Does as of right zoning allow site plan review?
The Zoning Act (MGL c40A) does not establish nor recognize site plan review as an independent method of regulating land use. However, Massachusetts courts have recognized site plan review as a permissible regulatory tool, including for uses that are permitted as of right. These court decisions establish that when site plan review is required for a use permitted as of right, site plan review involves the regulation of a use and not its outright prohibition. The scope of review is therefore limited to imposing reasonable terms and conditions on the proposed use, consistent with applicable case law.
The 3A Guidelines similarly recognize that site plan review may be required for multifamily housing projects that are allowed as of right, within the parameters established by the applicable case law. Site plan approval may regulate matters such as vehicular access and circulation on a site, architectural design of a building, and screening of adjacent properties. Site plan review should not unreasonably delay a project nor impose conditions that make it infeasible or impractical to proceed with a project that is allowed as of right and complies with applicable dimensional regulations
How will this Law Change Andover's character and built environment?
One of the general principles of the Law is to “encourage the development of multi-family housing projects of a scale, density and aesthetic that are compatible with existing surrounding uses and minimize impacts to sensitive land.”
Andover have existing multi-family housing that complies with the 15 units per acre density requirement. Multi-family is defined as " A building with three or more residential dwelling units or two or more buildings on the same lot with more than one residential dwelling unit in each building". Multi-family housing can have a variety building types, including townhomes, triple-deckers, single-family cluster developments and townhouses. This is often referred to as the "missing middle" or "workforce" housing.
How will this effect open space, recreation, wetlands, educational or other protected lands?
One of the general principles of the Law is to “minimize impacts to sensitive land”. Many categories of land where it is not possible or practical to construct multi-family housing are specifically “excluded” from consideration under the MBTA Communities Requirement. These include:
- All publicly owned land, except for lots or portions of lots determined to be developable public land,
- All rivers, streams, lakes, ponds and other surface waterbodies,
- All wetland resources areas, together with a buffer zone around wetlands and waterbodies equivalent to the minimum setback required by Title 5 of the state environmental code,
- Protected open space and recreational land that is legally protected in perpetuity (for example land owned by a local land trust or subject to a conservation restriction),
- Land likely to remain undeveloped due to functional or traditional use (for example, cemeteries),
- All public rights-of-way and private rights-of-way,
- Privately owned land on which development is prohibited to protect private or public water supplies, including but not limited to Zone I wellhead protection areas and Zone A surface water supply protection areas,
- Privately owned land used for educational or institutional uses, such as a hospital, prison, electric, water, wastewater or other utility, museum, or private school.
Will the MBTA Communities Requirement result in the creation of affordable housing?
The inclusion of affordable housing provisions in the zoning district is not required. However, Andover may incorporate minimum affordability requirements if they are financially feasible and do not unduly impede the construction of multi-family housing in the overlay district.
Will the new zoning lower home values?
Many factors affect the value of residential property, and it is too early to determine if these requirements will actually create new housing, much less have a minor or significant influence on valuations. However, there is research finding that similar properties located in walkable neighborhoods or close to amenities, particularly transit hubs, have higher values than similar properties located at a distance.
Does this reduce my property rights?
A property owner will continue to have of the rights they currently have since the base zoning will remain. If the MBTA Community zoning is adopted, individual property owners will have the option to decide if they want to redevelop their property under the new zoning. No one is required to change their property or develop new housing