The Growing Multifamily Zoning Debate: Local Resistance to State Mandates

By: Alexandra Henriquez

Edited By: Regan Cornelius and Eleanor Bergstein

In early October 2024, the Massachusetts Supreme Court heard its first oral arguments from the town of Milton’s attorneys defending it against a lawsuit from the state attorney general over its failure to comply with the MBTA (Massachusetts Bay Transportation Authority) Communities Act. [1] The act mandates that the 177 municipalities served by the MBTA employ “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.” [2] These bylaws require multifamily units to meet specific minimum density, public transportation proximity, and age inclusion provisions. Noncompliance would cause municipalities to lose eligibility for essential state funding programs, such as MassWorks, the Housing Choice Initiative, and the Local Capital Projects Fund, all of which support infrastructure and community development. [3] However, it is essential to note that not all municipalities are assigned the same compliance deadline. “Rapid transit communities,” those with “at least 100 acres of developable station area associated with one or more subway stations, or MBTA Silver Line bus rapid transit stations,” were required to adhere to the act by last December. This consisted of only 12 of the 177 MBTA municipalities. Meanwhile, 130 other communities, known as “commuter rail” and “adjacent” communities, have until the end of 2024 to pass these initiatives. The remaining “smaller adjacent towns” were granted until the end of 2025. [4] As of October 2024, 33 towns have had their zoning plans approved. 139 communities are in interim compliance, meaning the Executive Office of Housing and Livable Communities (EOHLC) has approved their Action Plan, which is in progress; their deadline has not yet passed. [5] Although 172 municipalities are at least in partial compliance, communities like Milton, classified as a rapid transit community, and Holden, an adjacent community, have refused to conform. Most recently, in early November, Millbury residents overwhelmingly voted against a zoning amendment that would comply with the act. [6] 

Considered a reflection of the “American Dream,” single-family housing became popular in the 20th century and was supported by post-World War II policies that facilitated homeownership. Economic growth, suburban expansion enabled by highway development, and zoning laws prioritizing single-family residences reinforced this trend. These zones maintained property values and provided desirable low-density living but also contributed to socio-economic and racial exclusion. Essentially, single-family housing allowed the social-economic control of urban growth. States have the authority to regulate zoning, including single-family zoning, through powers granted by the Tenth Amendment, which allows them to enact laws to promote public welfare. This power is often delegated to local governments via enabling statutes, letting them create zoning ordinances that guide land use, such as residential and commercial zones. The Supreme Court, in the landmark case Village of Euclid v. Ambler Realty Co. (272 U.S. 365 (1926)), upheld the constitutionality of zoning as a valid exercise of these powers. [7] Today, many argue that single-family household zoning is to blame for high housing costs, urban sprawl, and segregation, prompting reform efforts in states like California and Oregon that have used this authority to reduce single-family zoning and promote multi-family housing. In 2022, California passed SB 9, which permits the subdivision of single-family lots to allow duplexes or triplexes. [8] In 2019, Oregon also made strides in eliminating exclusionary zoning laws by passing HB 2001, mandating that cities with over 10,000 residents allow for duplexes and triplexes in residential zones. [9] Similarly, Massachusetts has introduced initiatives such as the $4 billion Affordable Homes Act, which includes provisions to incentivize mixed-income multifamily developments. [10]

The lawsuit brought by the Massachusetts Attorney General against the Town of Milton highlights tensions between state and local governments. While states seek to address housing shortages, promote sustainable development, and reduce reliance on car travel, local governments fear losing control over their communities’ specific wants and needs. They express concerns about the strain multi-family housing could place on existing infrastructure, including schools, roads, and public services. Additionally, many municipalities worry about the potential for lower property values and changes to neighborhood aesthetics or community identity, leading to residents’ resistance and political fallout for local officials. [11] 

While both state and local governments acknowledge the urgency of the housing crisis, some local authorities advocate for alternative solutions rather than turning to multi-family housing. Just as this issue crosses the boundaries of local and state policy discussions, it is also a shared concern among both Democrats and Republicans. As we await the decision on Milton, the Massachusetts Supreme Court will be deliberating the extent of the state’s enforcement authority on local governments and the differences between policy “guidelines” and “regulations.” [12] A significant factor at play is the state’s ability to use financial incentives or penalties to encourage compliance from local governments. By taking legal action, the state seeks to reinforce its authority beyond financial encouragement. The outcome of this case could establish a precedent for how far states can go in enforcing compliance from local municipalities.

Notes:

1. Alysha Palumbo and Colin A. Young, “State’s Lawsuit against Milton over MBTA Housing Law Goes Before High Court,” NBC10 Boston, October 7, 2024. https://www.nbcboston.com/news/local/oral-arguments-monday-in-state-lawsuit-against- milton-over-mbta-housing-law/.

2. Mass. Gen. Laws 40A, § 3A (a)(1), (2021).

3. Mass. Gen. Laws 40A, § 3A (b), (2021).

4.  Annie Jonas, “Map: Deadline Looms for 130 MBTA Communities. What’s next for YourTown,” Boston.com, November 12, 2024, https://www.boston.com/news/local-news/2024/10/17/map-mbta-communities-whats-next-for-your-town/.

5. Sydney Ko, “Map: Who Is - and Isn’t - Complying with the MBTA Communities Act?,” WBUR, October 30, 2024, https://www.wbur.org/news/2024/05/09/mbta-communities-act-zoning-map.

6. Adam Bass, “Millbury Latest Town to Reject MBTA Communities Act Zoning Plan.” MassLive, November 11, 2024, https://www.masslive.com/worcester/2024/11/millbury-latest-town-to-reject-mbta-communities-act-zoning-plan.html.

7. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, (1926)

8. Andrew Bowen, “Three Years into California Duplex Law, San Diego Homeowners Start to Cash In,” KPBS Public Media, October 28, 2024, https://www.kpbs.org/news/quality-of-life/2024/10/28/sb-9-california-duplex-law-san-diego-homeowners.

9. Owen Minott and Julia Selby, “Eliminating Single-Family Zoning and Parking Minimums in Oregon,” Bipartisan Policy Center, September 26, 2023, https://bipartisanpolicy.org/blog/eliminating-single-family-zoning-and-parking-minimums-in-oregon/.

10. Karissa Hand, “Governor Maura Healey Signs Most Ambitious Legislation to Address Housing Costs in State History,” Commonwealth of Massachusetts, October 6, 2024, https://www.mass.gov/news/governor-maura-healey-signs-most-ambitious-legislation-to-address-housing-costs-in-state-history.

11. Katherine Barrett and Richard Greene, “Will States Force Localities to Build Affordable Housing?,” Route Fifty, May 17, 2023, https://www.route-fifty.com/management/2023/05/will-states-force-localities-build-afford able-housing/386465/.

12. Alysha Palumbo and Colin A. Young, “State’s Lawsuit against Milton over MBTA Housing Law Goes Before High Court,” NBC10 Boston, October 7, 2024. https://www.nbcboston.com/news/local/oral-arguments-monday-in-state-lawsuit-against- milton-over-mbta-housing-law/.
    

Bibliography:

Palumbom, Alysha and Colin A. Young. “State’s Lawsuit against Milton over MBTA Housing Law Goes Before High Court.” NBC10 Boston, October 7, 2024. https://www.nbcboston.com/news/local/oral-arguments-monday-in-state-lawsuit-against- milton-over-mbta-housing-law/. 

Mass. Gen. Laws 40A, § 3A (a)(1), (2021). 

Mass. Gen. Laws 40A, § 3A (b), (2021).

Jonas, Annie. “Map: Deadline Looms for 130 MBTA Communities. What’s next for YourTown.,” Boston.com, November 12, 2024, https://www.boston.com/news/local-news/2024/10/17/map-mbta-communities-whats-next-for-your-town/.

Ko, Sydney. “Map: Who Is - and Isn’t - Complying with the MBTA Communities Act?,” WBUR, October 30, 2024, https://www.wbur.org/news/2024/05/09/mbta-communities-act-zoning-map.

Bass, Adam. “Millbury Latest Town to Reject MBTA Communities Act Zoning Plan.” MassLive, November 11, 2024, https://www.masslive.com/worcester/2024/11/millbury-latest-town-to-reject-mbta-communities-act-zoning-plan.html.

Village of Euclid v. Ambler Realty Co., 272 U.S. 365, (1926)

Bowen, Andrew. “Three Years into California Duplex Law, San Diego Homeowners Start to Cash In,” KPBS Public Media, October 28, 2024, https://www.kpbs.org/news/quality-of-life/2024/10/28/sb-9-california-duplex-law-san-diego-homeowners.

Minott, Owen and Julia Selby. “Eliminating Single-Family Zoning and Parking Minimums in Oregon,” Bipartisan Policy Center, September 26, 2023, https://bipartisanpolicy.org/blog/eliminating-single-family-zoning-and-parking-minimums-in-oregon/. 

Hand, Karissa. “Governor Maura Healey Signs Most Ambitious Legislation to Address Housing Costs in State History,” Commonwealth of Massachusetts, October 6, 2024, https://www.mass.gov/news/governor-maura-healey-signs-most-ambitious-legislation-to-address-housing-costs-in-state-history.

Barrett, Katherine and Richard Greene, “Will States Force Localities to Build Affordable Housing?,” Route Fifty, May 17, 2023, https://www.route-fifty.com/management/2023/05/will-states-force-localities-build-affordable-housing/386465/.