MBTA Communities

What is zoning and why does it matter?

Zoning is a key tool used at the local level to shape a municipality through requirements and incentives for how land is used. 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. It also specifies development processes, including who needs to sign off on different kinds of development. Well-crafted zoning should tell property owners and community members what kind of development a community wants to see and where.

What is the Multifamily Zoning Requirement for MBTA Communities, or Section 3A of M.G.L. Chapter 40A?

The requirement for multifamily zoning for MBTA Communities was part of a bill adopted by the Massachusetts Legislature and signed by the Governor on January 14, 2021. It is often referred to as “Section 3A” because it is codified as Section 3A of Chapter 40A, the chapter of Massachusetts General Laws that governs zoning for all cities and towns in Massachusetts except Boston. Section 3A requires that all municipalities in the MBTA service district have at least one area where multifamily housing is allowed as of right. Compliance is determined by the Section 3A Guidelines, promulgated by the Executive Office of Housing and Livable Communities (EOHLC) on August 10, 2022, and most recently revised on August 17, 2023.

What does Section 3A require?

A Section 3A district must allow multifamily housing as of right at a minimum gross density of 15 units per acre. The district must be located within the area created by a half-mile radius from a commuter rail, subway, or ferry station if applicable. The district must allow for housing suitable for families with children and the zoning cannot include age restrictions. The land in the district must be feasible for development—for example, a district that is entirely conservation land would not comply because it is restricted from being developed.

What is by-right or as-of-right development?

“By right” or “as of right” means development that may proceed under a zoning ordinance or by-law without the need for a special permit, variance, zoning amendment, waiver, or other discretionary zoning approval. Complex approval processes can delay new housing for months or years, jeopardizing whether it is developed at all and increasing the cost of the new housing that eventually is built. Lengthy and uncertain permitting processes where opposition typically dominates the public hearing process discourage applications to build multi-family housing.

Are MBTA Communities required to build a certain amount of housing?

No, Section 3A does not require the construction of any units. Rather it mandates that zoning allows property owners/developers the option to construct multifamily housing without discretionary permits issued by a municipal Planning Board, Zoning Board of Appeals, or other granting authority. Additionally, the zoning district can be located in areas that are already developed; it does not need to be located on vacant lots.

What does 15 units per acre mean/look like?

Many different things! Multifamily housing at this density can come in many shapes and sizes. It does not necessarily mean large buildings on large lots that are out of scale with a municipality’s historic development patterns. Multifamily housing can include many types of housing, such as townhouses or garden apartments, that are already a familiar part of historic town centers throughout New England.  

For some illustrations and photos of what 15 units/gross acre looks like, try the Exploring Housing at Different Densities tool from the Southeastern Regional Planning & Economic Development District or watch the associated webinar from the Massachusetts Housing Partnership (MHP). To explore the density of different Massachusetts communities, check out MHP’s Residensity tool or their Transit-Oriented Development Explorer.  

Why should we zone for more housing?

The region is desperately short of housing to meet demand. This has driven housing costs in Greater Boston to be among the highest in the country and resulted in many residents paying more than they can afford for housing. To support a growing workforce and changing population, MAPC estimates that Eastern Massachusetts may need 100,000–130,000 multifamily housing units over the next 10 years. 

Section 3A will result in the creation of more diverse types of housing. Across Eastern Massachusetts, residents who do not want or need or cannot afford a large single-family house on a large lot—such as seniors interested in downsizing or young adults looking for more affordable starter homes—often cannot find housing that is affordable to them. The housing allowed in Section 3A districts will provide a greater range of housing options at a greater range of price points in high-opportunity locations close to transit, amenities, and jobs, resulting in a greater range of people who can access housing that meets their needs in the community of their choosing. Additionally, greater housing diversity is a step towards undoing a century of discriminatory zoning policy.

What does Section 3A have to do with equity?

Zoning for multifamily housing in places where single-family housing predominates can help correct the continuing impacts of discriminatory zoning policies enacted throughout the 20th century. Zoning has been used intentionally to exclude people of color and continues to be used today to preserve exclusive communities that are not open to lower-income households, renters, families with children, and other groups. When the only housing allowed to be built in a particular community is single-family houses on large lots, families who cannot afford these homes are effectively prevented from moving to that community. While no single policy or program has the power to undo decades of racially motivated zoning, Section 3A, particularly with affordability requirements, represents an opportunity for communities to affirmatively redress the racist and exclusionary impacts of past and current policies and create meaningful opportunities for racial and economic integration. 

Check out this short video from the Massachusetts Housing Partnership to learn more.

What does Section 3A have to do with climate?    

Transportation is the biggest contributor to greenhouse gas emissions in Massachusetts, and residential buildings are close behind. Transportation emissions—mostly passenger vehicles and light trucks—amount to ~30% of the state’s greenhouse gas emissions. By emphasizing growth in areas with high levels of transit access or in smart growth locations close to pedestrian amenities and activity centers, Section 3A will encourage housing development where people can rely less on private vehicles and have more options for using more sustainable ways to get around. New construction must meet higher energy saving requirements and therefore are more energy efficient than old buildings.   Furthermore, multi-family buildings require less energy to heat and cool each housing unit than single-family buildings do, and they further contribute to key climate goals by minimizing impervious surfaces and water usage per capita.  Building compact multi-family units in smart growth locations means communities can meet multiple objectives of providing housing and preserving open spaces such as forests and agricultural lands.

What happens if we’re not in compliance with Section 3A?

Not complying with Section 3A is against the law. On March 15, 2023, the Attorney General issued an Advisory regarding the enforcement of Section 3A. It clarifies that municipalities subject to Section 3A cannot opt to avoid 3A compliance by foregoing their eligibility for state funding sources. It also cautioned that noncompliant municipalities risk liability under federal and state fair housing laws.  

Municipalities that do not comply with Section 3A will not be eligible for funding from the Housing Choice Initiative; the Local Capital Projects Fund, the MassWorks infrastructure program, and the newly announced HousingWorks infrastructure program. These infrastructure programs and other discretionary grant programs are important for municipalities to maintain access to and are programs their residents support through their state taxes.  

The Commonwealth will consider Section 3A compliance when making grant awards recommendations for the following programs: EOHLC’s Community Planning Grants; the Executive Office of Economic Development’s Massachusetts Downtown Initiative, Urban Agenda, and Rural and Small-Town Development Fund; MassDevelopment’s Brownfields Redevelopment Fund, Site Readiness Program, Underutilized Properties Program, Collaborative Workspace Program, Real Estate Services Technical Assistance, and Commonwealth Places Program; and the Executive Office of Energy and Environmental Affairs’ Land Use Planning Grants, Local Acquisitions for Natural Diversity Grants, and Municipal Vulnerability Preparedness Planning and Project Grants.  

Finally, communities that don’t adopt a 3A district are missing the opportunity to encourage diverse housing options for their residents and encourage sustainable development. The region is desperately short of housing to meet demand; over time, Section 3A will help the region build the housing it needs to ensure social justice, promote a healthy economy, grow sustainably, and provide options that meet the diverse needs of residents. Check out this short video from the Massachusetts Housing Partnership to learn more.

What are the key changes from the draft guidelines that were issued in December 2021?

EOHLC issued draft compliance guidelines in December of 2021 and received extensive public input before releasing the current guidelines on August 10, 2022, with revisions in October 2022 and August 2023. Some key changes from the draft version include: 

• The Bus Service community category was eliminated to focus locations on fixed transit assets, and the Adjacent Small Town community category was added, to recognize challenges faced by small communities in terms of staff capacities and unfamiliarity with multi-family zoning.  
• The minimum land area requirement and the unit capacity requirement were eliminated for Adjacent Small Towns (municipalities smaller than 7,000 people or with less than 500 residents per square mile).  
• A municipality’s unit capacity requirement cannot exceed 25% of its existing housing stock, and its minimum land area requirement can’t exceed 1.5% of its total developable land area.  
• The portion of the 3A district that must be located within a half mile of a transit station now varies based on the developable station area in each municipality.  

For a more detailed overview, see CHAPA’s summary of changes to the guidelines.  

On October 21, 2022, EOHLC released limited revisions to the guidelines that address inclusionary zoning in 3A districts. The revisions expand the definition of Affordable Housing to include “workforce” housing for moderate-income families, and allow municipalities to require that more than 10% of new units (but not more than 20%, unless part of a pre-existing 40R district) require affordability and/or that units be affordable to families earning less than 80% of the Area Median Income (AMI).” A summary of the revisions can be found here.  

On August 17, 2023, EOHLC released an additional revision to the guidelines allowing mandatory mixed-use development in zoning. The revision also specifies how Section 3A compliance may affect certain discretionary grant award decisions. A summary of the revisions can be found here. 

Who decides on 3A zoning in my locality?

Like all zoning, Section 3A zoning must be locally adopted by Town Meeting or City Council. Section 3A zoning requires the same adoption process as any change to a municipality’s zoning bylaw or ordinance. Section 3A zoning can potentially be adopted with a simple majority vote as described in Section 5 of MGL c. 40A. A supermajority vote is needed if the zoning amendment includes inclusionary zoning requirements.

Can our zoning require a special permit for multifamily housing within the 3A district?

No, a special permit would mean that multifamily housing is not allowed as of right, which is one of the key requirements of Section 3A. However, a municipality may require site plan review or use design guidelines to help developers understand its vision and goals for its 3A district.

Can we use a site plan review for our 3A district?

Yes, a site plan review can be required for multifamily housing in a 3A district. Site plan review is a process established by local ordinance or by-law by which a local board reviews, and potentially imposes conditions on, the appearance and layout of a specific project before the issuance of a building permit. Site plan approval criteria typically cover matters such as vehicular access and circulation on a site or screening of adjacent properties. However, the process must not unreasonably delay a project or impose conditions that make it infeasible or impractical to proceed with a project that complies with applicable dimensional regulations. 

As part of its MBTA Communities webinar series, the Massachusetts Housing Partnership hosted a webinar about how to use site plan review in your Section 3A district on November 9, 2022.

How do historic districts interact with 3A compliance?   

While overlaps between 3A districts and historic districts are allowed, the intended purposes behind Section 3A and the law governing local historic districts (MGL Chapter 40C) differ significantly. Historic districts are intended to preserve existing buildings of historical value and are sometimes used to stop new development in an area. As such, 3A districts should avoid including historic districts unless there is an established plan in place to encourage adaptive reuse and new construction within the historic district. EOHLC won’t automatically deny compliance if there are large overlaps, but they will account for the historic district’s effect on the 3A district’s unit capacity and land areas in making and monitoring determinations of compliance.

How do sustainability requirements, such as LEED certification, impact district compliance?

Sustainability requirements that apply throughout the municipality and are consistent with state regulations, such as local adoption of the Stretch Code or the new Specialized Opt-in Code, are permitted. Municipalities that wish to participate in the Municipal Fossil Fuel Free Building Demonstration Program must be in compliance with Section 3A. 

A municipality cannot use zoning to set sustainability requirements specifically for development in its 3A district that are stricter than requirements for other uses in the municipality.

Who decides whether a municipality is an MBTA community? What are MBTA Community categories and how are they determined?

An MBTA community is defined in Massachusetts’s General Laws (section 1 of MGL c. 161A). In total, there are 177 MBTA communities subject to Section 3A.  

Each municipality subject to Section 3A is divided into one of four categories depending on their access to transit stations: Rapid Transit Community, Commuter Rail Community, Adjacent Community, and Adjacent Small Town. You can look up your community category here or see specific definitions for each community category here.

How is a 3A district of “reasonable size” determined?     

In defining a “reasonable size,” the guidelines use two metrics: first, the physical size of the district; second, the amount of multi-family housing the zoning can accommodate.

With regard to the physical size of the district, the guidelines set a minimum land area requirement or a minimum number of acres for the 3A district. The minimum land area requirement varies by community type. For rapid transit, commuter rail, and adjacent communities, a 3A district must be either 50 acres or 1.5% of the municipality’s developable land area, whichever is less. For adjacent small towns, there is no minimum land area requirement.  

The guidelines address how much multi-family housing a 3A district must accommodate through a unit capacity requirement. Depending on district regulations such as building height or setbacks, a municipality’s 3A district may need to be larger than the minimum land area threshold to meet its unit capacity requirement.

What is “unit capacity”?

In addition to the requirement that 3A districts must be a certain number of acres, compliant districts must accommodate a certain number of multifamily housing units. For each municipality, the guidelines set a minimum multifamily unit capacity, which is an estimate of how many units could theoretically be built in the district given other aspects of the municipality’s 3A zoning, such as allowable building height or number of required parking spaces. The required unit capacity for each municipality is a percentage of its total housing units, which varies depending on the municipality’s community category.  Unit capacity is not a requirement to build a certain number of units or an estimate of how much new housing can be built.

What does the 50% district contiguity requirement mean?

A municipality can achieve 3A compliance by designating two or more smaller 3A subdistricts that, when taken collectively, meet the district minimum size requirement. If a municipality chooses this approach, at least half of the total area of ALL the combined 3A subdistricts must be contiguous.  Generally, this means it must consist of parcels that are directly about each other. This applies no matter the district’s final size, even if it’s greater than 50 acres. Additionally, no single subdistrict can be smaller than 5 acres (unless the reasonable size and unit capacity requirements can be met in less than 5 acres).

Where does the district need to be located in relation to an MBTA station? What if there is more than one station?

For Rapid Transit Communities and Commuter Rail Communities, which have developable land near transit stations within their boundaries, Section 3A stipulates that the 3A district must be located within a half mile of the transit station. However, depending on the location of the transit station—for example, if the station is located on the edge of town or if it is surrounded by wetlands—it may be impractical or impossible to locate the entire 3A district within a half-mile of the station. To address this, the guidelines specify a certain percentage of the 3A district (in terms of both district size and unit capacity) that must be located within a half mile of the transit station depending on how much land around the station can realistically be developed. For details, see the “Location of Districts” section of the guidelines.

Where should we put 3A zoning if there is no MBTA station?

If there is not an MBTA station within your community’s boundaries, the Section 3A district can be located anywhere in town. Planners and municipal officials should keep in mind that the location of the district should make sense for people to live there, not just comply with the law. You might ask yourself; would I want to live in this area?

What should we consider in locating the 3A district?

There are many ways to align the location of a 3A district with local priorities and planning best practices. Municipalities are encouraged to consider locating their 3A district in a pedestrian-friendly area with access to amenities and existing infrastructure, such as an existing downtown or village center. To learn more about things to consider when determining the best location for a 3A district, see the district siting tool from the Southeastern Regional Planning & Economic Development District or watch the associated webinar from the Massachusetts Housing Partnership. 

What happens if there is an existing development within the 3A district that was previously granted approvals based on conditions that conflict with the 3A guidelines?

The conditions imposed by a special permit, variance, or comprehensive permit typically apply to a particular development, not the land on which the development is built. Thus, that land could still be included in a 3A district, and based on the 3A district zoning metrics, the land will count towards that district’s land area and unit capacity calculation.

What is multifamily housing for the purposes of Section 3A?       

According to Section 3A, multifamily housing is defined as “a building with 3 or more residential dwelling units or 2 or more buildings on the same lot with more than 1 residential dwelling unit in each building.

Can zoning require mixed-use development in a 3A district?        

Ground-floor retail or any other non-residential uses can be allowed in a 3A district, but they cannot be required. However, the revised guidelines do allow MBTA communities in some cases to “offset” up to 25% of their minimum multifamily unit capacity requirement by counting unit capacity from a mixed-use development zoning district. This is meant to encourage MBTA communities to locate more housing in walkable and transit-oriented neighborhoods without jeopardizing existing non-residential resources and amenities like shops and restaurants. In many towns, the place that makes the most sense for multifamily housing is in a town center or along a commercial corridor. 

For municipalities that are interested in supporting economic development goals through their Section 3A district, there are several strategies to consider. For example, the district boundaries could omit parcels directly along a main street where ground-floor commercial use is desired, or the zoning could include incentives to encourage mixed-use development, such as allowing additional density or height.

How do the guidelines consider unit capacity in mixed-use development districts?

According to the revised guidelines, MBTA communities in certain cases can “offset” the minimum multifamily unit capacity requirement by up to 25% by counting unit capacity from a mixed-use development district that meets key requirements of the Guidelines. This means that mixed-use development is required as of right. One key difference is that mixed-use development districts don’t have to be a minimum of five acres.

EOHLC must pre-approve the location of a mixed-use district. Mixed-use districts are intended to be used in cases where existing village-style or downtown development is essential to preserve pedestrian access to amenities.  

MBTA communities must submit a form to EOHLC to request a determination that the mixed-use development district meets the requirements described in the revised compliance guidelines. The form must be submitted at least 90 days before a legislative body votes on the Section 3A zoning to be guaranteed a decision before the vote, however for Rapid Transit communities EOHLC staff will work closely with municipal staff for these location reviews.  

It’s important to note that the unit capacity offset doesn’t change the community’s minimum unit capacity requirement. For example, an MBTA community with a minimum unit capacity of 1,000 units could offset a maximum of 250 units from a mixed-use district. If granted, the community’s Section 3A-compliant zoning district would then need to have a minimum unit capacity of 750 to reach a total of 1,000 units. The offset only affects minimum unit capacity; the land area of a mixed-use district doesn’t count towards the minimum land and station area requirements set for each MBTA community. 

MBTA communities must have policies limiting non-residential uses to the ground floor of buildings and they can’t require the floor area for the non-residential use to be more than a third of the building’s total floor area. The mixed-use district must allow for a broad mix of non-residential uses as of right in keeping with the nature of the area and cannot include minimum parking requirements for the non-residential uses, though developers are free to include these parking spaces voluntarily.

How does municipally owned land factor into Section 3A?

It depends. Publicly owned land can count towards a 3A district’s area and unit capacity requirements if it is used by a local housing authority; has been identified as a site for housing development in a Housing Production Plan approved by EOHLC; or has been designated by the public owner for disposition and redevelopment. Other publicly owned land may qualify on a case-by-case basis determined by EOHLC if it is to be made available for as of right development of multi-family housing.

Publicly-owned land that does not meet one of the above criteria does not count towards the district’s unit capacity, or how much housing could theoretically be built in the district under the 3A zoning, so in general it does not make sense for a municipality to include publicly-owned land in its district unless the municipality can demonstrate specific plans to make the land available for as of right development of multi-family housing.

Will 3A zoning produce housing that’s accessible to persons with disabilities?

Accessibility in all new multifamily housing, including housing that will be built 3A districts, is governed by federal and state law. In general, in new multifamily housing with more than 15 units, 5% of units must be fully accessible. Additionally, units on the ground floor or with elevator access must be “adaptable,” meaning that they can be easily adapted to meet the needs of a resident with a physical or sensory disability.

Will 3A zoning produce housing that’s affordable? 

If your municipality has an existing inclusionary zoning ordinance or bylaw or if its new Section 3A district includes an affordability requirement, a certain percentage of units must be deed-restricted to be affordable to lower-income families.  

In addition to deed-restricted affordability, Section 3A is important because it will encourage different types of housing, creating relatively more affordable housing options than single-family homes for young people, seniors, and families.

Will our current inclusionary zoning policy apply to the 3A district?        

Municipality-wide inclusionary zoning requirements for 10% or fewer units affordable to 80% of Area Median Income (AMI) or higher will automatically apply to 3A districts or can be included as a provision in the 3A zoning.

Municipalities with inclusionary zoning requirements for greater than 10% of new units and/or affordability less than 80% of AMI must demonstrate that these requirements are economically feasible in accordance with guidance from EOHLC.

If we don’t already have inclusionary zoning, can we include it for our 3A district?

Yes! Municipalities can require that 10% or fewer units constructed in the 3A district be affordable to 80% of Area Median Income (AMI) or higher without providing any additional documentation.

If a municipality wishes to require greater levels of affordability in its 3A district, it will need to demonstrate that these requirements are economically feasible in accordance with guidance from EOHLC. While the 3A zoning itself might only require a simple majority (50%) approval by Town Meeting or City Council because of Massachusetts’ 2021 Housing Choice legislation, inclusionary zoning changes must still receive a 2/3 majority approval when they are adopted. Depending on the level of local support for the 3A district, municipalities may wish to consider the 3A zoning and its inclusionary component as two separate articles so that the 3A zoning faces the lower threshold for approval. 

Another option for municipalities that wish to use their 3A district as an opportunity to create more Affordable Housing is a 40R district. Chapter 40R is a state program that shares many overlapping goals with Section 3A, specifically the creation of dense residential districts in transit- or amenity-rich locations. 40R districts require that 20% of new units be Affordable Housing and do not need to demonstrate economic feasibility to determine 3A compliance. 40R districts can be adopted with a simple majority vote. 40R districts that were approved by EOHLC and adopted prior to August 10, 2022, may be permitted to retain a pre-existing affordability requirement of up to 25%.

What does Section 3A of MGL Chapter 40A have to do with Chapter 40B and the Subsidized Housing Inventory?   

Section 3A and Chapter 40B are two separate laws. Chapter 40B allows developers to bypass local regulations if a municipality has not reached a minimum housing affordability threshold of 10%. This is still the case regardless of whether a municipality has adopted a 3A district. However, a municipality can use its 3A district to help reach the 10% threshold by including affordability requirements in its Section 3A zoning. In order for affordable units provided through Inclusionary Zoning to count on the SHI, municipalities must apply to EOHLC Local Initiative Program (LIP) for approval and are encouraged to contact the LIP staff as soon as a development project subject to Inclusionary Zoning files for permits.

When does 3A zoning need to be adopted by?       

Compliance deadlines are based on your community category:

•         Rapid transit community: 12/31/2023
•         Commuter rail community: 12/31/2024
•         Adjacent community: 12/31/2024
•         Adjacent small town: 12/31/2025

What needs to happen to be in compliance between now and the deadline?

All but one MBTA community has achieved interim compliance by having an action plan approved by EOHLC.  The next step is to undertake a planning process to create a 3A district. For some municipalities, they may have as-of-right multi-family zoning in place or zoning that may only require minor tweaks. For others, it may require a larger-scale planning and visioning process to draft new zoning. Municipalities can use EOHLC’s sample 3A zoning as a framework.   

OCPC and other technical assistance providers are available to provide municipalities with support on 3A planning and zoning. 

An MBTA community requesting a determination from EOHLC regarding a mixed-use development must submit a request form, and it must submit the form at least 90 days before the vote of the legislative body to guarantee a decision before the vote. EOHLC will prioritize and work closely with Rapid Transit municipalities that are seeking approval for a mixed-use district.   

After the zoning is drafted, it must be adopted, possibly with a 50% majority vote, by Town Meeting or City Council. Municipalities should consult with their legal counsel and Town Moderator if applicable for advice on qualifying for simple majority vote by town Meeting or City/Town Council. Once a municipality’s 3A zoning is adopted, it must submit a District Compliance Application Form (pdf) to EOHLC. Instructions can be found on the application website.

How do we know if our proposed zoning is compliant?

EOHLC has released a compliance model that will help municipal planning staff or consultants determine whether an existing or proposed district complies with Section 3A requirements. The compliance model is a required part of the application/approval process.  The compliance model requires some work in ArcGIS and Excel. Depending on local capacity, municipalities may wish to engage a planning consultant to help determine compliance and draft zoning (see below for technical assistance resources).  

EOHLC also provides a pre-adoption review application that is very similar to the district compliance application. Municipalities are encouraged to use the pre-adoption review process before adopting zoning. EOHLC will complete its pre-adoption review within a maximum of 90 days (about three months). 

What is the process to prove compliance?

After a municipality’s 3A zoning is adopted, it must submit a District Compliance Application Form (pdf) to EOHLC. Instructions can be found on the application website. Towns must also submit their adopted bylaw to the Attorney General for approval.

What technical assistance is available for 3A compliance?

The Massachusetts Housing Partnership is offering funding for municipalities to obtain direct technical assistance; applications are accepted on a rolling basis.  

There are also several state grant programs that fund Section 3A planning, including the Community OneStop for Growth  and planning assistance grants from the Executive Office of Energy and Environmental Affairs.   

Assistance with the community engagement process is available through the Citizens’ Housing & Planning Association, and assistance with community organizing in support of local 3A efforts is available through Abundant Housing Massachusetts.  

Municipalities can work on visioning, compliance modeling, zoning, community engagement, and adoption support with OCPC through any of these programs and/or through the District Local Technical Assistance program.