Know Before You Go: MBTA-C Resource Center

Here are links to MGL Part I, Title VII Ch 40A, S3A — commonly called the MBTA Communities Law — and related guidance

Tewksbury Town Meeting is usually a low-key affair, with sometimes fewer than 100 people approving the town budget and many other warrant articles. But every now and then, a topic garners significant interest. Massachusetts General Law 40A, Section 3A, aka the MBTA Communities Law, is such a topic.

The Senate voted unanimously in favor of the Act, then called An Act enabling partnerships for growth, while the House voted 143 in favor to 4 against. Governor Baker signed the Act into law on January 14, 2021. Source

Here are links to relevant documents and previous meeting coverage for residents looking to go right to the source. If you have additional questions, we recommend reaching out to Town Planner Alex Lowder at alowder@tewksbury-ma.gov.

1. What does the law say exactly? The full text is here.

Section 3A. (a)(1) An MBTA community shall have a zoning ordinance or by-law that provides for at least 1 district of reasonable size in which multi-family housing is permitted as of right; provided, however, that such multi-family housing shall be without age restrictions and shall be suitable for families with children. For the purposes of this section, a district of reasonable size shall: (i) have a minimum gross density of 15 units per acre, subject to any further limitations imposed by section 40 of chapter 131 and title 5 of the state environmental code established pursuant to section 13 of chapter 21A; and (ii) be located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station, if applicable.

(b) 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.

(c) The department, in consultation with the Massachusetts Bay Transportation Authority and the Massachusetts Department of Transportation, shall promulgate guidelines to determine if an MBTA community is in compliance with this section.

2. What are the latest promulgated guidelines? The latest full text of the guidelines is here and downloadable below in PDF format.

3. How many communities are required to add overlays? 177 Massachusetts cities and towns. A list is here and downloadable below. For this year, the number is 130; the remaining 47 have until the end of 2025.

4. What are the deadlines? The chart is from here. Tewksbury is an adjacent community. If Articles 41/42 fail on Wednesday, the same or a different zone may be brought back for a vote at October Town Meeting. No adjacent or commuter rail community will be out of compliance until Jan. 1 2025.

5. What communities have adopted overlays?

As of May 4, 45: Abington, Andover, Arlington, Bedford, Braintree, Bridgewater, Brookline, Cambridge, Chelmsford, Chelsea, Concord, Danvers, Dedham, Essex, Everett, Franklin, Grafton, Harvard, Haverhill, Hingham, Lexington, Lincoln, Lowell, Malden, Medford, Newbury, Newton, Northborough, Northbridge, Norwood, Pembroke, Plymouth, Quincy, Revere, Rockport, Salem, Scituate, Somerville, Stoneham, Taunton, Wareham, Wellesley, Westborough, Westford and Winchester.

This number will change as municipalities hold their Town Meetings.

The Globe has a map that is updated continually with each town’s status: https://www.bostonglobe.com/2024/05/07/business/boston-housing-mbta-communities-law-towns/

6. What if a community becomes noncompliant?

Massachusetts Attorney General Andrea Campbell issued an advisory that is here or can be downloaded in full below. It states in part:

All MBTA Communities must comply with the Law. Communities that do not currently have a compliant multi-family zoning district must take steps outlined in the DHCD guidelines to demonstrate interim compliance. Communities that fail to comply with the Law may be subject to civil enforcement action. ⁸ Non-compliant MBTA Communities are also subject to the administrative consequence of being rendered ineligible to receive certain forms of state funding._⁹ Importantly, MBTA Communities cannot avoid their obligations under the Law by foregoing this funding. The Law requires that MBTA Communities “shall have” a compliant zoning district and does not provide any mechanism by which a town or city may opt out of this requirement.¹⁰

The related press release issued by Campbell’s office is here.

Voting down an overlay presented at Town Meeting does not make an adjacent community noncompliant. They have until the end of the year to come up with a zone that’s acceptable to residents.

While Wakefield voted down its overlay earlier this week and Wrentham has sent a letter to the state and some Rockport residents have filed a lawsuit, only Holden and Milton are officially noncompliant at this time.

The lawsuit filed by Campbell seeking to force compliance by Milton is here or downloadable below.

7. What is Milton’s response? Milton maintains a page with its correspondence and significant additional information.

The Milton Select Board on April 2 approved a fixed-fee agreement for $275,000 with Goodwin Procter LLP for the law firm’s representation of the town in the MBTA Communities Act lawsuit brought by the state. The Planning Board agreed to spend up to $50,000 for additional consulting services to help them as they set about working on two new sets of zoning districts.

Milton’s Select Board stated in part: “To respond to the Attorney General’s lawsuit, on March 15 the Select Board voted to engage Goodwin Procter LLP as special counsel to assist Town Counsel in defending the Town. We expect that the Supreme Judicial Court will hear oral arguments on the attorney General’s lawsuit in October and will issue a decision sometime thereafter.“

Milton’s attorneys plan to question whether the law’s guidelines are enforceable and may make constitutional claims. They may also argue that Campbell may not have the power to enforce zoning rules.

8. How does the Supreme Judicial Court operate?

The Massachusetts Supreme Judicial Court consists of a Chief Justice and six Associate Justices who hear criminal and civil cases from September through May. The full court will hear the Milton case in October and render a decision after considering all arguments.

9. What are the arguments in Tewksbury?

The MBTA Communities Act was a topic of discussion during the Select Board campaign. Residents can watch answers from Select Board members Eric Ryder and James Mackey here, skipping into 37:00.

10. What zone are we discussing on Wednesday?

The town maintains a landing page with a variety of materials, including Lowder’s initial presentation to the Select Board in January 2022.

This chart, from here, shows all the properties in the proposed overlay along with the units that could be built now should a developer acquire the property versus what could be built if the overlay passes.

The four districts that were under discussion after community workshops are here. Main A is the one chosen to be submitted to the state for approval.

The Planning Board, which presents zoning articles to Town Meeting, voted unanimously to recommend adoption. You can watch that discussion here, skipping in to 23:00.

The Select Board voted 3-2 to not recommend. That discussion is here beginning at 2:44.