Adorable as Affordable?: The Zoning Challenge of Tiny Houses

by Olympia Bowker

Viewpoint

With Massachusetts’ housing affordability crisis showing no signs of abating, it imperative to consider new, creative solutions. A 2018 Boston Magazine analysis of over 150 Massachusetts cities and towns revealed the lowest median home price in one municipality was $255,450; the highest was $1.9M. Contrast these figures with the roughly $60,000 retail cost of a Tiny House, and it is no wonder that these diminutive abodes appear tempting as affordable options. But can they play a meaningful role in ameliorating the affordable housing crisis in Massachusetts? And can the Community Preservation Act (“CPA”) help spur a Tiny House trend in Massachusetts?

Tiny Houses: What Are They, and Are They Prohibited?

A “Tiny House” is defined by the 2018 International Residential Code (“IRC”) as a dwelling that is 400 square feet or less in floor area excluding lofts used as a living or sleeping space. Generally, Tiny Houses look like miniature versions of traditional houses; they can feature tiny modernist rooflines, colonial shutters, or Victorian gingerbread trimming. They can be built either on trailers or fixed foundations—a key distinction for affordable housing purposes.

While attention is often on the high-end Tiny House market that focuses on minimalist lifestyles and carbon footprints, experiments nationwide highlight the value of “tiny house villages” to address homelessness. With the wait times for affordable housing in Boston lasting years, urgency must beget innovation here as well.

Notwithstanding the growth in Tiny Houses as a social and architectural movement, long-standing provisions of many municipal zoning bylaws and ordinances ignore, if not effectively prohibit, Tiny Houses. In Massachusetts, a wheeled Tiny House is legally treated as a recreational vehicle (“RV”), mobile home, or trailer that must be registered with the state and used as such (i.e., not parked year-round other than in a designated area), and is often barred by or heavily regulated under local zoning laws as undesirable.

If a Tiny House is built on a foundation, it must comply with zoning and building codes applicable to single family residential dwellings, including minimum square footage, lot and building size, and setback requirements. For example, Holliston Zoning Bylaw §V(D) has a 600 square foot minimum for floor area, effectively prohibiting Tiny Houses as defined under the IRC. But with the housing shortage at crisis levels, notwithstanding the still-developing zoning and construction standards, high land prices, and political tensions, these small-segment models of housing shouldn’t be overlooked.

Tiny Houses as Stock for the Subsidized Housing Inventory under G.L. c. 40B

To incentivize communities to adopt zoning changes to allow Tiny Houses, it is important to note that Tiny Houses constructed for low or moderate-income households may be countable toward a municipality’s Subsidized Housing Inventory (“SHI”) for purposes of the “Comprehensive Permit Law,” G.L. c. 40B. To qualify as SHI, the unit must be “affordable” to households earning at or below 80% of the Area’s Median Income (“AMI”)—the rent or mortgage payment and related housing expenses (e.g., utilities) cannot exceed 30% of the household members’ annual incomes.

Since enactment in 1969, G.L. c. 40B, §§ 20-23 (“40B”) has served as the main statutory scheme to address the affordable housing shortage statewide. 40B includes an ‘anti-snob’ provision that empowers the Zoning Board of Appeals to override zoning requirements to approve “comprehensive permits” for denser, larger, and higher developments than would otherwise be allowed under local regulations if the municipality has not met its “safe harbor” threshold for SHI: either at least 10% of a municipality’s total housing stock must be “affordable” or more than 1.5% of municipal land must be dedicated to SHI. See G.L. c. 40B, § 20; 760 C.M.R. § 56.03(1); DHCD Guidelines (rev. Dec. 2014). If a municipality meets neither SHI threshold, 40B dramatically relaxes local control over approval of comprehensive permits for housing developments that contain 20-25% affordable units.

Even after 50 years of 40B incentive, as of 2017, Massachusetts municipalities had an average of 9.7% SHI, and only 67 of Massachusetts’ 351 municipalities were at or above the 10% SHI threshold. Tiny Houses that qualify as SHI would be more attractive to municipalities because they would count towards the 10% safe harbor threshold for 40B purposes.

But in order to qualify for SHI, Tiny Houses have to be allowed in the first place.

Crafting Tiny Zoning

Municipalities can start by explicitly including Tiny Houses in their zoning: write Tiny Houses into tables of uses, and define whether they can be used as accessory dwellings, secondary or tertiary structures, or as stand-alone residences. Definitions should address whether they can have wheels, or whether they must be built upon a foundation.

Carefully crafted Tiny House zoning can provide housing stock that fits within the character of towns by allowing continued municipal control over massing, setbacks, aesthetics, and other elements which municipalities would otherwise relinquish under the traditional 40B system.

Further, creation of an overlay district for Tiny House villages could provide for maximum square footage, smaller setbacks, and smaller lot of sizes in certain areas. In such scenarios, preexisting non-conforming lots may become buildable. With creative zoning such as cluster developments, more homes could be built in smaller areas.

In 2016, Nantucket enacted a zoning bylaw amendment that explicitly allowed Tiny Houses that comply with the International Building Code. While industry standards did not align at the time to permit prefabricated Tiny Houses under that ordinance, future iterations of bylaw changes and changes in the industry specifications can address those types of mismatches going forward.

Leveraging CPA Funds

The CPA can serve as a catalyst for a Tiny House trend by subsidizing construction or land acquisition for Tiny Houses that count towards SHI thresholds. One way the CPA helps communities create affordable housing is by establishing a “community preservation fund,” which is fed by a local tax of up to 3% on real property.

The CPA defines affordable housing as “community housing” that serves households at or below 100% of AMI. CPA funds can support many types of activities in furtherance of affordable housing, including construction and property acquisition. Municipalities can neutralize land costs by acquiring buildable land, which not only can enhance feasible development possibilities, but also allow more control over design and location of development.

Tiny Houses created with or assisted by CPA funds can be included in a municipality’s SHI through compliance with the Department of Housing and Community Development (DHCD)’s Local Initiative Program, which requires the unit to be created as a result of the municipality’s action or approval. The unit will be sold or rented on a fair and open basis subject to an affirmative fair marketing and resident selection plan approved by DHCD; be affordable to households below 80% AMI; and have its permanent affordability secured by Department use restrictions. CPA funds used to purchase land for Tiny Houses also incentivize partnerships with developers, such as through subsidies or by allowing the developer to build on municipal land.

Conclusion

Tiny Houses are not the silver bullet, as the resident pool for such housing is admittedly small, but they offer one more means to create much-needed inexpensive housing for single or double occupancy – a segment not prioritized in the current 40B scheme. By considering the interests of citizens, cities and towns, and affordable housing proponents, they can perhaps expand housing options and increase supply – at least a tiny bit.

 

Olympia A. Bowker is an associate at McGregor & Legere, P.C. in Boston. She helps clients with a broad range of environmental, land use, zoning, and regulatory matters.



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