During the public hearing before the Millbury Planning Board on Monday, January 22, 2024, regarding the recodification of Millbury's Zoning Bylaw, Town Planner Conor McCormack publicly disclosed that the Massachusetts Bay Transportation Authority (MBTA) Inclusionary Zoning District under consideration encompasses the existing Business 1 Zoning District, which constitutes a large area of our downtown.

The MBTA Inclusionary Zoning, outlined in Section 3A of M.G.L. c. 40A, mandates communities with MBTA stations, services, or adjacent communities establish a zoning district encompassing a designated number of acres of land. Within this district, "as of right" multi-family development at a density of 15 dwelling units per acre shall be permitted. Under Section 3A of M.G.L. c. 40A, “as of right” means “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.” While on its face “as of right” may seem like a straightforward concept, there are many nuances to consider, and the Executive Office of Housing and Livable Communities (EOHLC) will review submitted zoning text to determine whether zoning provisions allow for multi-family housing “as of right.”

In Millbury, being an MBTA adjacent community with the MBCR commuter rail stations in Worcester and North Grafton, this would allow for the construction of up to 750 dwelling units at a density of 15 units per acre in a specified zoning district within a 50-acre area. Failure by the town to enact the mandated zoning district could result in the stipulated consequences as outlined in the law, which contains the following language “An MBTA community that fails to comply with this section shall not be eligible for funds from: (i) the Housing Choice Initiative as described by the governor in a message to the general court dated December 11, 2017; (ii) the Local Capital Projects Fund established in section 2EEEE of Chapter 29; or (iii) the MassWorks Infrastructure Program established in section 63 of Chapter 23A.”

While there's no obligation for the units to be affordable, should a developer elect to include affordable units, they are subject to a maximum development limitation of 10% of the total units. Therefore, it can be concluded that the MBTA Inclusionary Zoning is not focused on the creation of affordable housing. Certainly, these requirements may undergo revisions, especially given that the implementation date is later this year, and to align with Governor Maura Healey's recent State of the Commonwealth address which included a push for passage of the Affordable Homes Act, a $4 billion plan to jumpstart the production of homes and make housing more affordable across Massachusetts.

At this juncture, it's crucial to understand that the Town of Millbury is in the process of proposing zoning regulations to permit “as of right” a density of 15 dwelling units per acre within a designated 50-acre area. There is no obligation to commence construction at this point in time. If the proposed zoning amendment were to be endorsed by town voters during an upcoming town meeting, it simply provides developers the opportunity to construct dwelling units "as of right" at the specified density within the amended zoning district. The approval of the zoning amendment by the voters at the town meeting holds significant importance. The residents must decide whether to comply with the state law or reject it and possibly be ineligible for three or more sources of state funding.

The MBTA Inclusionary Zoning might be inconsequential, either way, considering that the defined area is fully developed. Furthermore, the process of acquiring developed properties, demolishing them, and constructing densely populated housing units demands substantial capital. Up to this point, no major corporate investor has shown interest in pursuing any such endeavors in Millbury. The transition from the current state to achieving 15 dwelling units per acre is improbable to happen overnight.

As an aside, the town of Holden is resisting the state's "mandate" and choosing not to comply. The outcome of this resistance remains uncertain and will have to play out. Certain individuals perceive the state's actions as governmental overreach and a power grab, particularly in light of the push for the passage of the proposed Affordable Homes Act. This proposed act essentially grants the state more control over zoning in all communities within the commonwealth. The idea of a one-size-fits-all approach does not seem to resonate with many, as each community is distinct with its own set of needs. It's evident that not every community aspires to adopt a city mindset for development.

As reported in the news, the Massachusetts Attorney General’s office is issuing warnings of possible legal action or the withholding of funding if communities do not comply with MBTA Inclusionary Zoning. According to Peter Lukes, the town manager of the Town of Holden, he expressed disagreement with the Attorney General's interpretation of the law in a statement to a local news network. Town Counsel who represents another community concurs with Holden’s stance. Different lawyers think that the MBTA Inclusionary Zoning deserves to be contested.

Environmental Justice Population

In Massachusetts, an Environmental Justice Population is a neighborhood where one or more of the following criteria are true: (a) the annual median household income is 65 percent or less of the statewide annual median household income; (b) minorities make up 40 percent or more of the population; (c) 25 percent or more of households identify as speaking English less than "very well"; or (d) minorities make up 25 percent or more of the population and the annual median household income of the municipality in which the neighborhood is located does not exceed 150 percent of the statewide annual median household income. Within the town of Millbury, the Environmental Justice Population is defined by “households with an annual median income of 65 percent or less than the statewide annual median household income.” This population is situated in the downtown area and was a crucial consideration when selecting the location for the MBTA Inclusionary Zoning district.

Affordable Homes Act

As a tangent to the topic at hand… A component of her Affordable Homes Act plan includes adopting a strategy similar to California's, allowing accessory dwelling units (ADUs) "as of right" in all residential zoning districts with a footprint of 900 square feet or less with no owner-occupancy requirements. It's noteworthy that this differs from California's threshold of 800 square feet. Additionally, if situated within a half-mile of a transit center, without any off-street parking requirements, these ADUs would be permitted “as of right.” Drawing inspiration from California's strategy, which has notably contributed to an increased housing supply, ADUs can be built or placed within 4 feet of the rear or sideline setbacks for dwelling units of less than 800 square feet, with a maximum height of 16 feet. In California, if these criteria are satisfied, neither neighbors nor the local government can impede the permitting, construction, or placement of the ADU. Clearly, adherence to the state building and fire codes is mandatory. While this action would contribute to an increase in the overall housing inventory, it poses a challenge regarding the Subsidized Housing Inventory (SHI) theshold of 10% in M.G.L. Chapter 40B. ADUs typically do not qualify toward fulfilling the 10% SHI requirement. As the number of non-SHI-eligible housing units rises, the overall achievement toward meeting the 10% SHI target decreases. Fundamentally, the initiative to increase housing stock via ADUs may not align with the targeted subsidized housing objectives outlined in the SHI requirement. It remains intriguing to observe how the state legislature will address the matter of SHI in response to this. In general, permitting ADUs, a practice forbidden in numerous communities, proves beneficial in addressing some of the affordability concerns. For instance, it can mitigate aged-care expenses by facilitating a living arrangement where parents reside in an ADU. In this setup, they can contribute to child care, while their children reciprocally provide assistance with their parents' care, eliminating the high costs of an assisted living facility and child care expenses. ADUs can be used to supplement mortgage expenses through providing monthly rental income from tenants. Though Millbury may not share similarities with Los Angeles or Silicon Valley, the idea of tackling housing affordability through ADUs is both fascinating and preferable compared to the alternative of introducing mega-apartment complexes with hundreds of apartments suddenly placed in a small neighborhood lacking adequate infrastructure.

Inclusion

Numerous subjects and issues need inclusion in the town's endeavor to recodify zoning bylaws and related regulations. This ensures thoughtful discussions and the formulation of regulations conducive to the safe, responsible, and sustainable growth of our community.