THE AFFORDABLE HOMES ACT MAKES SWEEPING CHANGES FOR MASSACHUSETTS HOUSING
The Massachusetts housing crisis has been at the top of the Healy administration’s priority list since Governor Healy took office in January 2023. Over the last several decades, the housing inventory has fallen far short of the need created by the Commonwealth’s impressive economic expansion, and the cost of purchasing or renting a home in Massachusetts is beyond the reach of many.
On August 6, 2024, Governor Healy signed into law the Affordable Homes Act (“AHA”). The AHA is historic and wide-sweeping legislation designed to promote and encourage housing production with a particular focus on affordable housing. The AHA includes funding amounting to a staggering $5.1 billion to support the development and preservation of affordable housing. The AHA also creates a new agency, the Office of Fair Housing, and mandates the creation of a statewide housing plan with special commissions to address housing for low-income, senior, and disabled persons. While much attention has been given to the AHA’s ambitious funding and other initiatives to promote and preserve affordable housing, certain other provisions make changes to promote new housing generally.
Accessory Dwelling Units
One such change that will be welcomed by many homeowners is the removal of local restrictions that prohibit adding accessory dwelling units (“ADU”) to existing homes. This change is in response to the trend for adopting local zoning bylaws that prohibit or severely restrict ADUs in single-family zoning districts. The AHA allows a homeowner with a property in a single-family district to create, as of right, an ADU up to 900 square feet in size. The ADU can be attached to an existing home or a separate building. This change is significant because at least 56% – over 1.7 million – Massachusetts homes are located in single-family districts. Certain other local restrictions that discourage the creation of ADUs, such as owner-occupancy requirements, are no longer enforceable. The expectation is that this change will promote the creation of many thousands of small inexpensive apartments and other dwellings that are suitable for younger adults, caregivers, and the elderly. Moreover, $60 million is ear-marked for assistance to individuals and families with disabilities, and for seniors, to create ADUs so they may stay in their homes. Municipalities may still restrict short-term rental uses.
New Homes on Adjoining Lots Under Common Ownership
In addition, the new law prevents municipalities from prohibiting the construction of a new home on a lot that is under common ownership with an adjoining lot. Prior to the enactment of the AHA, local zoning bylaws could prevent a homeowner from building a second home on an adjoining vacant lot, even though a new home would be allowed if the vacant lot were under separate ownership. Now, a new home may be built on an adjoining lot under common ownership, subject to certain conditions, including that the lot must be at least 10,000 square feet and have at least 75 feet of frontage. Additionally, the new home must be single-family with at least three bedrooms and no larger than 1,850 square feet, and the new home cannot be used only seasonally or for short-term rentals.
Abutter Appeals of Zoning Permits Made More Difficult
Another change imposed by the AHA makes it much more difficult for abutters to challenge local zoning permits granted to developers. Under the prior law, an abutter to a building project could tie-up and delay construction by filing a court appeal of a special permit, variance, or site plan approval. While the right of an abutter to appeal a zoning permit in court still exists, the AHA raises the bar and makes an appeal more difficult. Now, to establish standing to bring the appeal, the abutter’s complaint must allege a plausible and measurable injury that is special and unique to the abutter that the abutter claims will be proven through credible evidence. Under the prior law, the abutter could rest on the presumption of standing as an abutter, and proving the plausible and measurable injury was required only if that presumption was rebutted by the defendant. Now under the AHA, the particular allegations for standing must be stated in the abutter’s complaint. This will no doubt lead to early determinations as to whether the appeal should be dismissed for lack of standing.
The AHA also imposes what is likely to be an even greater deterrent for abutters to appeal zoning permits. Judges now have much greater authority to require a plaintiff to post a substantial bond as a requirement for moving forward with an appeal. Under the old law, a judge could order a bond of up to $50,000 only to secure payment of the developer’s costs for defending the appeal and only upon a showing that the abutter brought the appeal in bad faith or with malice. Now, under the AHA, the judge can order the abutter to post a bond of up to $250,000, and the requirement to show bad faith or malice no longer exists. Furthermore, now the bond is imposed to secure payment and reimburse the developer for its costs and its damages if the judge concludes that the delay costs or other harm to the developer caused by the appeal outweigh the abutter’s burden in posting the bond. In addition, the judge can now order the plaintiff to pay the developer’s attorney’s fees if the judge finds the appeal was brought in bad faith or with malice. This change will most certainly serve to discourage many abutters and other affected parties from filing court appeals of zoning permit decisions.
These changes to zoning permit appeals will have a broad reach because they govern all such appeals, not just those involving residential uses.
For more information regarding the Affordable Homes Act, contact Thomas Aylesworth.