Striking a Balance: Massachusetts' MBTA Communities Law and the Channeling of Local Control
Suffolk University Law School Research Paper 24-12
Virginia Environmental Law Journal (symposium on Land, Climate & Justice), forthcoming
20 Pages Posted: 1 Jul 2024
Date Written: June 26, 2024
Abstract
State attempts to reform and loosen local zoning regulations in furtherance of new housing production often encounter resistance from advocates of local control. Defenders of local parochialism argue such reforms are insensitive to local conditions and usurp inherent local powers. Others question the relationships between supply, demand, and pricing. This Essay explores a recent reform in Massachusetts that, despite its limited scope, significant deference to local decision making, and expected modest contribution to housing supply, has faced some pushback.
Massachusetts’ 2021 MBTA Communities Act (MBTA-C) requires local governments to zone for a district of reasonable size, within one-half mile of transit, in which multi-family zoning at a minimum gross density of 15 units per acre can be built as of right. Guidelines issued by a state agency pursuant to the statute specify how many units of multi-family housing each municipality’s zoning must permit. Critics have assailed the law as an assault on local control of land use. These critiques are misplaced for multiple reasons. First, the law maintains significant local control over zoning. While municipalities must rezone to create a district (or set of districts) of a reasonable size and that allow a certain number of units of housing to be built, they have significant latitude in determining the location and precise details of these districts. Second, zoning is not legally or historically a sovereign power of local governments, as some critics suggest. Instead, zoning is instituted subject to the state’s police power, which it delegates to local governments. It must be exercised in furtherance of the common good of the state.
In sum, the MBTA-C law represents a modest reform that, in contrast with bolder interventions in other states, channels, rather than displaces or preempts, local decision-making. It channels the local exercise of the zoning power in furtherance of vital statewide interests the police power serves. While this approach is clearly within the scope of the state’s authority, it is ultimately too modest to significantly address the demand for new housing supply. Massachusetts can, and should, go further to remove local zoning barriers.
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