August 2022

Legislature approves climate bill; fossil fuel ban notes housing concerns

The Massachusetts Legislature enacted a compromise bill (H. 5060) to advance offshore wind generation and to address the effects of climate change. Of particular concern to the HBRAMA was a provision sought by the Senate, but opposed by the House, that would require the Department of Energy Resources (DOER) to establish a municipal demonstration project allowing a limited number of cities and towns to restrict or prohibit all new building construction or major renovation projects that utilize fossil fuels (coal, oil, propane and natural gas).

Section 83 of H. 5060 includes a fossil fuel ban, but establishes important criteria sought by the HBRAMA to mitigate its effect on housing. For a community to qualify to participate in the demonstration project, it must first have met the 10 per cent housing affordability threshold set under Chapter 40B of the General Laws or has been granted safe harbor status through an approved Housing Production Plan by the Department of Housing and Community Development; or has approved a zoning ordinance or by-law that provides for at least 1 district of reasonable size in which multifamily housing is permitted as of right; provided, that such multi-family housing shall be without age restrictions and shall be suitable for families with children. In either case, a community would have 18 months from the bill becoming law to reach the benchmark.

This fossil fuel ban was proposed by senators in response to Attorney General Healey’s past rulings that any local bylaw or zoning bylaw that seeks to ban the installation of fossil fuel infrastructure in new building projects is prohibited by existing state law governing building permits and the regulation of gas utilities. The HBRAMA and other real estate development groups, as well as chambers of commerce, business organizations, unions and the utilities have all opposed such bans. 

Only 10 towns will be allowed to take part in the demonstration project at any one time, and the state Department of Energy Resources (DOER) will have to collect and report out a range of data about the program’s impact, including on housing production and housing affordability.

The ten communities that are considered likely to seek participation in the demonstration project are:

• Cambridge
• Newton
• Brookline
• Lexington
• Arlington
• Concord
• Lincoln
• Acton
• Aquinnah
• West Tisbury

The DOER, in conjunction with the Executive Office of Energy and Environmental Affairs and the Executive Office of Housing and Economic Development may promulgate regulations governing the demonstration project.

As this issue of On The Level went to press, Governor Baker is reviewing H. 5060 after legislators mostly rejected amendments he proposed to the bill. The governor has ten days to sign or veto the bill.

A copy of Section 83 can be found [here].

Economic development bills advance Starter Home Zoning

The odds of the enactment of a new Chapter 40Y of the General Laws – the Starter Home Zoning District Act – improved greatly with the passage in both the House and Senate of differing economic developments that both include this provision. Earlier this year, Gov. Baker filed House Bill 4720, An Act investing in future opportunities for resiliency, workforce, and revitalized downtowns. Among the provisions of that omnibus legislation were amendments to Chapter 40R and the creation of a Chapter 40Y to increase the likelihood of success of the Starter Home Program championed by the HBRAMA.

Chapter 40R, the Smart Growth Zoning and Housing Production Act, was amended in 2016 to extend the law’s financial incentives to cities and towns if they adopt an overlay zoning district that permits the development of smaller homes (not exceeding 1850 sq. ft. of heated living area) on smaller lots (at a density of no less than 4 units to an acre). The problem with the current law, however, is that those homes must be located in a so-called “smart growth” location. That is largely the reason that no “starter home districts” have been created and no ‘starter homes” have been built.

The enactment of Chapter 40Y would resolve many of the problems of the current law. No longer would a starter home zoning overlay district have to be located in a “smart growth 

location” approved by the state. Rather, an eligible starter home zoning overlay district would be any location that a community determines is appropriate.

Further, the current requirement that 20% of the units in a starter home development be affordable to individuals and families whose incomes do not exceed 80% of Area Median Income, would be reduced to 10% of the units at 110% of AMI, thereby making the economics of such a project more workable. 

Importantly, by creating an entirely new statute, the existing regulations governing starter homes can be rewritten to make them less burdensome for municipalities and less costly for developers.

While House and Senate negotiators were unable to reach an agreement on a compromise economic development bill at the close of formal sessions on July 31, there still remains the possibility that one could be enacted before the end of the year and Chapter 40Y become law. The HBRAMA will continue to advocate for this important housing program.

HBRAMA Leadership Meets with Boston Globe Editorial Board

On July 20th, HBRAMA President Emerson Clauss and HBRAMA Government Affairs Committee Chair Rob Brennan met via Zoom with the Editorial Board of the Boston Globe to discuss a range of topics of importance to Massachusetts home builders including concerns that the Legislature’s proposed “pilot program” allowing 10 cities and towns to impose a fossil fuel ban (discussed above) will increase the costs of construction, allow towns opposed to the creation of affordable housing to effectively “green line” in defense against such development, and defeat the objectives of maintaining a uniform state-wide building code. Clauss and Brennan also underscored for the Globe editors that all proposed changes to the building code – whether in the form of the fossil fuel ban or other provisions of the pending Net Zero stretch code – impose additional costs on residential construction that must be passed along to buyers or renters. Unless these additional costs will be offset by tax credits or other tools that have not yet been put on the table by the Legislature, these measures adopted in the interests of climate policy will only worsen the housing affordability crisis in Massachusetts. The need for additional resources invested into workforce development was also discussed with editors, who appeared to have an understanding of the increasing shortage of skilled tradespeople from their own experiences securing contractors. The Globe Editorial Board expressed their appreciation in hearing directly from HBRAMA and recent stories in the Globe seem to reflect an increased discussion of housing concerns – even in the context of reporting on climate proposals. HBRAMA leadership will continue working with our media team to place issues of importance to Massachusetts home builders “front and center” for the public, lawmakers, and local officials across the Commonwealth.  

Effort to weaken the MBTA multifamily zoning mandate begins

While debating the Senate’s version of the omnibus economic development bill discussed above, Senator Bruce Tarr (R-Gloucester) offered an amendment that would establish an appeal process for MBTA communities to be relieved of their obligation to adopt a zoning ordinance or by-law that provides for at least 1 district of reasonable size within ½ mile of a commuter rail station, subway station, ferry terminal or bus station in which multifamily housing is permitted as of right.

While Sen. Tarr’s amendment was rejected, it is a forewarning of the fight that looms ahead in the next year. While the final guidance to cities and towns on the MTBA multifamily mandate (G.L. c. 40A, §3A) has not yet been issued by the Department of Housing and Community Development (DHCD), a number of cities and towns are already claiming the law is too burdensome.

Tarr’s amendment would allow a community to petition DHCD for relief from having to zone for multifamily housing based upon one or more of the following:

1. The inability to meet the drinking water supply requirements necessary to support the housing units authorized by such provisions;

2. The inability to meet the wastewater treatment requirements necessary to support such units;

3. The inability of municipal transportation infrastructure to safely accommodate increased population attributable to housing development pursuant to such provisions;

4. Any adverse environmental impacts attributable to the developments of housing units pursuant to such provisions.

Such an appeal process would substantially undermine the law’s goal of increasing the production of rental housing. The HBRAMA anticipates that legislators from many of these MBTA communities will file home rule petitions to exempt their towns from the multifamily mandate. Bills to weaken or repeal the law entirely can also be expected. Opposing these measures will be a priority of the association in the 2023-2024 Legislature. 

A copy of the Tarr Amendment can be found [here].

Rent control, wage theft among bills that fail to advance at the State House

Numerous bills opposed by the HBRAMA failed to advance at the State House prior to the end of formal sessions on July 31. While the Legislature will continue to meet twice a week in informal session for the remainder of the calendar year, controversial bills can be blocked by just one lawmaker. Among the dozens of bills successfully opposed by the association, were bills:

• To allow cities and towns to adopt rent control;
• To grant tenant associations a right of first refusal to purchase apartment buildings;
• To allow cities and towns to impose a fee (tax) on the transfer of real property to fund affordable housing;
• To hold businesses vicariously liable for wage theft by their subcontractors;
• To allow cities and towns to require the installation of fire sprinklers in all newly constructed one and two-family dwellings;
• To make it easier for condominium owners to bring a construction defect claim;
• To weaken Chapter 40B by enabling local conservation commissions to adopt broadly defined “municipal natural resource protection bylaws” to effectively deny a project as “consistent with local needs.” 

The HBRAMA will continue to monitor the Legislature and will actively oppose any attempt to pass these bills, among others, during the remainder of the year.