DHCD issues regulations for Ch. 40R
On March 25, the Department of Housing and Community Development released regulations to govern Chapter 40R, the so-called Smart Growth Zoning Incentive Program, which provides incentives to cities and towns to create overlay zoning districts in “smart growth” areas.
The new regulations (760 CMR 59.00) make the following improvements to the new law:
• The definition of eligible locations is expanded to allow more flexibility in the selection of areas to be used for a smart growth zoning district.
• Activities that would constitute commencement of construction by a city or town are clarified to include infrastructure improvements, such as sidewalks and fire hydrants, instead of requiring completion of units within three years of the receipt of payments to avoid having to return payments to the state.
• If a district is repealed locally, a city or town may retain the zoning incentive payment based on the number of bonus units built, permitted or applied for before the filing of its repeal submission.
• Density requirements may be reduced if a city or town demonstrates that the density levels under Chapter 40R would create a hardship due to poor soils or a lack of water or inconsistency with the existing community.
• Affordable housing units developed under Chapter 40R count toward the Chapter 40B Subsidized Housing Inventory.
• Affordable housing units developed under a Chapter 40B comprehensive permit within a Chapter 40R district receive density bonus payments.
The new regulations were developed through a collaborative process headed by the DHCD and including participation by the MMA.
While the MMA advocated for the framework of Chapter 40R, the association has identified deficiencies in the new law. For example, the original proposal would have provided, as an incentive to cities and towns, a “hold-harmless” provision for additional educational costs resulting from new development inside of “smart growth” zoning districts. But the version of Chapter 40R that was enacted eliminated this incentive and instead created a committee to study the issue. And while Chapter 40R provides cities and towns with an up-front payment upon the approval of a smart growth zoning district and a density bonus payment once a building permit is issued, these payments would not be indexed to inflation, as the original proposal recommended.
The MMA argues that cities and towns are being asked to change their local zoning and land use regulations for limited rewards. In fact, the cost of the assembling the material for an application alone may exceed the payments offered.
So far, only one community has formally submitted an application to the DHCD for a smart growth zoning district.
The MMA is continuing to work with the DHCD and all stakeholders to address deficiencies in Chapter 40R.
The DHCD plans to hold regional informational workshops on Chapter 40R for local officials over the summer and into the fall. Information will be provided when it becomes available.
