by Jonathan Klavens, Courtney Feeley Karp, and Elizabeth Mason
 As it becomes more challenging to develop large-scale solar projects in Massachusetts, it is worth taking a closer look at “dual use” or “agrivoltaic” projects – solar projects designed with specially elevated and spaced solar panels to allow for continued agricultural use of the land beneath. Some view solar development on “greenfield” sites (open space, forested land, farmland) as less desirable than installing solar on rooftops, parking lots, brownfields, and other previously developed sites. Agrivoltaic projects present an important opportunity to install additional clean energy generation in Massachusetts without the trade-offs often associated with greenfield development. Any solar project where farmland is converted to exclusive solar use gives the landowner the opportunity to supplement farm income by renting out a portion of the land to a solar developer. An agrivoltaic project can provide supplemental income without loss of farmland; it can even lead to the creation of new farmland or more active use of existing farmland, such as upgrading a hayfield to a vegetable farm. An agrivoltaic project can also play a dual role in the fight against climate change: increasing the share of energy generated from carbon-free sources while also promoting regenerative agriculture, the cultivation of plants and healthy soil that can help reduce the atmosphere’s existing carbon load. This article looks at three different regulatory frameworks that impact the development of agrivoltaic projects in Massachusetts: zoning; the Commonwealth’s solar incentive program; and taxation of agricultural land.
Local Permitting of Solar Projects
Like other commercial solar projects in Massachusetts, agrivoltaic projects face an array of permitting requirements. We will focus on the zoning landscape with special attention to several trends and dilemmas.
While state law limits the application of local zoning to solar facilities and both the Land Court and Superior Court have had occasion to interpret that law in recent years, there remains a good deal of confusion about the permissible scope of local zoning authority over solar projects. Zoning regulation of solar projects is limited by M.G.L. c. 40A, § 3 (“Section 3”), which provides that “[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare.” Section 3 evidences the legislature’s intent to protect solar facilities from certain local zoning restrictions but when and to what extent?
Many zoning bylaws do not mention solar energy use (or any broader use that would include solar energy use). Given that zoning bylaws almost universally prohibit uses that are not expressly permitted, this means that in the first instance solar would be prohibited under a bylaw that is silent as to solar use. In turn, however, one Land Court decision held that Section 3 would ordinarily preempt that prohibition, effectively rendering solar use a use allowed by right.
Notwithstanding Section 3, more and more municipalities are adopting solar bylaws that regulate solar projects in one or more ways. Some provide that solar projects are allowed by right in certain zoning districts, with or without a requirement for site plan approval (a mechanism for imposing reasonable conditions on as-of-right uses). Others provide that solar projects are allowed by special permit in certain districts. Still other solar bylaws purport to prohibit solar use in certain districts. Where solar facilities are allowed, a solar bylaw often lays out special dimensional and other requirements, such as requirements for vegetative screening or for posting of financial assurance to cover the costs of removing the facility at the end of its useful life. Larger scale ground mounted solar projects are often the only subject of solar bylaws or are subject to more extensive requirements than other types of solar facilities.
With the proliferation of solar bylaws, questions have arisen about the extent to which they are enforceable in light of Section 3. In its role as reviewer of the legality of new bylaws, the Office of the Attorney General has admonished municipalities to consult with counsel to ensure they do not run afoul of Section 3, but has not rejected any solar bylaw as facially inconsistent with Section 3. In addition, courts have offered some guidance, providing several prospective “rules of thumb” to local zoning boards and solar developers. For example, although a special permit granting authority (“SPGA”) can ordinarily exercise broad discretion to deny a special permit, it likely cannot do so outside the bounds of Section 3. Moreover, certain bylaw requirements (or permit conditions) may be inconsistent with Section 3 on an as-applied basis because they effectively prohibit a project or are not “necessary to protect public health, safety or welfare.” For example, given the benign nature of a typical ground mount solar facility it might be difficult to justify a 200-foot setback requirement as necessary to protect public health, safety or welfare.
It is also unclear under Section 3 under what circumstances a municipality may allow solar energy use in certain districts while prohibiting it in others. There are two keys ways of viewing this issue through the lens of Section 3. One view is that if a municipality allows solar energy use in at least some locations, it cannot be deemed to have “prohibit[ed]” solar use within the meaning of Section 3. The alternative view is that Section 3 bars a municipality from prohibiting solar energy projects even in just a single district “except where necessary to protect public health, safety or welfare.” Id. While an initial Land Court decision seemed to provide some support for the first view, two subsequent clarifying Land Court decisions have endorsed the second.
In Briggs v. Zoning Board of Appeals of Marion, the Marion Zoning Board of Appeals argued that, as long as commercial solar energy use was allowed in some zoning districts, it could still be prohibited in a residential district consistent with Section 3. The court appeared to accept this reasoning, finding that it is “rational” and “reasonable” to prohibit commercial solar energy systems in residential districts, even though Section 3 expressly bars any prohibition of solar energy systems – not just irrational or unreasonable prohibition of solar energy systems – “except where necessary to protect the public health, safety or welfare.” Id. The court noted that the board made no findings on the impact of the proposed project on public health, safety or welfare, id. at *2, nor did the court in its de novo review make any such findings, see id. at *4-5.
In Duseau v. Szawloski Realty, Inc., issued nearly a year later, the court reached a similar conclusion, but only because it determined that the defendant solar developer had the burden of proving that the prohibition of solar energy use in the town’s rural residential district was not necessary to protect public health, safety and welfare and the developer never even argued the issue.
More recently, in PLH LLC v. Town of Ware, the court ruled that a municipality could not require, and then could not deny or condition, a special permit for a solar project in a particular district “except where necessary to protect the health, safety or welfare.” Notably, it appears that no court has yet concluded that a prohibition of solar energy use, or a denial of a permit for solar energy use, has been necessary to protect public health, safety or welfare under Section 3. Given that many larger solar projects are now operating (including many in residential districts) across Massachusetts, and that many municipalities that have hosted such projects are supportive of additional solar development, it seems likely that the parties to future litigation on this point will have a good deal of experience from which to draw.
In short, developers of larger solar projects must navigate local land use regulation and differing interpretations of Section 3 as to which aspects of local regulation are actually enforceable. Meeting the Commonwealth’s clean energy goals will likely require more balanced regulation and more certainty about how municipalities can lawfully regulate clean energy projects.
SMART Program Incentives for Agrivoltaic Projects
The Solar Massachusetts Renewable Target Program (the “SMART Program”) implemented by the Massachusetts Department of Energy Resources (“DOER”) provides a base financial incentive for production of each unit of solar energy from eligible projects in Massachusetts. The SMART Program regulations also offer extra incentives known as “adders” to promote certain types of projects, such as solar carports, solar on landfills, and community solar facilities. Agrivoltaic facilities, referred to as Agricultural Solar Tariff Generation Units (“ASGTUs”) in the regulations, are the target of one such adder. In addition to providing adders for preferred project types, the SMART Program also has what are called “greenfield subtractors” which reduce the incentive payments for solar facilities located on greenfield sites. ASTGUs are not subject to the subtractor given that the land on which they are located will continue to be farmed. ASTGUs are also exempt from strict new rules adopted in July 2020 that generally bar solar facilities from participating in the SMART Program if they are located on land designated as priority habitat, core habitat, or critical natural landscape as identified by the Massachusetts Division of Fisheries and Wildlife BioMap2 framework with the Commonwealth’s Natural Heritage and Endangered Species Program.
At the same time, the process and standards for qualification of a SMART ASTGU are quite rigorous under state regulations and guidelines. For example, the reduction of direct sunlight relating to an ASTGU cannot exceed 50% – measured on every square foot of the project site. While a SMART facility can generally be up to 5 MW AC in size, under the current ASTGU Guideline an ASTGU would typically be capped at just 2 MW AC. Id. at 3. The current regulations also contain a number of other requirements including continuous growth, growing plans, and productivity reports. 225 C.M.R. 20.06(1) (d)(3), (5); ASTGU Guideline at 3. While it is important to ensure that there are not significant detrimental effects on agriculture from an ASTGU, there could be many appropriate reasons for reduced productivity, such as a drought year or appropriate crop rotation. The approval process thus far has raised questions about the appropriate baseline for measuring impacts, determining which impacts to attribute to the solar facility or to other causes, what type or magnitude of impact would result in disqualification of an ASTGU or removal of its adder.
There may well be many more types of symbiotic solar and agricultural uses that do not fit within the current requirements for ASTGUs. For example, mushroom cultivation, beekeeping and animal husbandry are all farming activities that might benefit from shade reduction greater than 50%. The state’s Department of Energy Resources (“DOER”) has a process for seeking waivers for unique and worthwhile alternatives but obtaining an exception is not easy, quick or predictable.
Based on experience gleaned from processing ASTGU applications for almost two years, DOER has recently issued a “straw proposal” to modify the guideline governing qualification of ASTGU projects. Among other things, the straw proposal raises the possibility of allowing for ASTGUs of up to 5 MW AC in certain instances and streamlining the approval process by permitting qualification by a third party organization, which should increase speed and predictability for approval of project designs. This change would provide greater certainty for the financing of these projects and allow the full range of potential climate change benefits to come to fruition.
Property Tax Incentives for Land in Agricultural/Horticultural Use
Land in active agricultural or horticultural use is entitled under M.G.L. c. 61A (“Chapter 61A”) to reduced property tax rates. Chapter 61A land that is converted from agricultural to commercial use must be removed from Chapter 61A. So what happens when Chapter 61A land serves as the site of an agrivoltaic facility?
Before land is to be removed from Chapter 61A, the landowner must deliver to the municipality a notice of intent to convert. Such notices are accompanied by plans showing the total acreage that will cease to be farmed (the “Converted Land”) and the balance of the land that will continue to be farmed (the “Remaining Land”). The Converted Land is removed from Chapter 61A and the landowner pays roll-back taxes (and, if applicable, conveyance taxes) in connection with this removal. The Remaining Land should remain eligible for reduced taxation under Chapter 61A.
There is currently some confusion about the applicability of Chapter 61A to land under agrivoltaic facilities in light of the existence of Section 2A of Chapter 61A. Section 2A was inserted by the legislature in 2016 to address situations where ground mounted solar facilities are installed on farmland, precluding use of the land under the solar panels for agricultural or horticultural use but generating power used for the operation of the farm. Section 2A allows owners of agricultural or horticultural land who install a “renewable energy generating source” on their land which meets the requirements of Section 2A to maintain all of their land as agricultural or horticultural land under Chapter 61A, even the land that is exclusively occupied by the solar array and can no longer be farmed. Section 2A is not relevant to agrivoltaic facilities because they involve installation of solar panels above land which will continue to be farmed.
Land under and around an agrivoltaic facility is instead governed by Sections 1 and 2 of Chapter 61A. Section 1 states that land shall be considered to be in agricultural use when “primarily and directly used in raising animals, including, but not limited to, dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies, mules, goats, bees and fur-bearing animals, for the purpose of selling such animals or a product derived from such animals in the regular course of business.” Section 2 states that land shall be considered to be in horticultural use when “primarily and directly used in raising fruits, vegetables, berries, nuts and other foods for human consumption for the purpose of selling these products in the regular course of business.” The Remaining Land at the site of an agrivoltaic facility, which will continue to be farmed, meets these definitions.
Note that farming the land underneath and surrounding the solar arrays of an agrivoltaic facility is something that, as noted above, facility owners are required to do under the SMART Program in order for the facilities to qualify for – and stay qualified as –ASTGUs under that program. If in the future the owner ceases farming the land underneath and surrounding the solar arrays and uses it for a non-qualifying purpose, the land would then lose eligibility for classification under Chapter 61A.
Chapter 61A and the publications of the Massachusetts Department of Revenue’s Division of Local Services (“DLS”) are clear that it is the use of the land that determines whether or not land is eligible for classification under Chapter 61A. Section 20 of a set of FAQs published by DLS states that, in the case of solar facilities that (like the agrivoltaic projects discussed here) don’t meet the requirements of Section 2A, only land “necessary for the operation of” the solar facility or “impacted by its operation” is ineligible for continued classification under Chapter 61A. The Converted Land at the site of an agrivoltaic facility meets this definition and is the portion of the land no longer eligible for taxation under Chapter 61A. The Remaining Land is not “necessary for the operation of” the solar facilities. It will continue to be farmed and should remain eligible for classification under Chapter 61A.
Whether land under and around an agrivoltaic facility can remain in Chapter 61A can have a significant impact on the economic viability of an agrivoltaic project. If land under an agrivoltaic project is not allowed to remain in Chapter 61A, that may not just mean that the project would have to be able to support higher property taxes (potentially reducing benefits to the farmer) but could also raise questions about the project’s ability to operate as an ASTGU under the SMART Program. An agrivoltaic project can qualify as an ASTGU if it is on land currently enrolled in Chapter 61A or land that has been in Chapter 61A in the previous five years. 225 C.M.R. 20.02 (definitions of ASTGU and Land in Agricultural Use). If a project also needs a waiver under the ASTGU Guideline, however, it must demonstrate that “the primary use of the land is for agricultural or horticultural production, as defined under [Chapter 61A].” ASTGU Guideline at 4. If the land is removed from Chapter 61A because of hosting the ASTGU, the rationale for such removal would presumably be that the primary use is no longer agricultural or horticultural. This would create tension rather than synergies between laws, and would highlight the importance of interagency coordination to further the Commonwealth’s policy goals, particularly with respect to climate change. Removing any uncertainty about this issue will be important to the growth of agrivoltaic facilities and the environmental and economic benefits that flow from them.
Development of larger scale solar projects is a challenging venture, and development of agrivoltaic projects involves special challenges and special opportunities. Overcoming those challenges and realizing those opportunities requires harmonization of and certainty in land use regulation, financial incentive qualification, and property taxation. Striking the right balance would be a victory for sensible land use planning, support of local agriculture, and the transition to a clean energy future.
 The authors would like to thank Sarah Matthews, senior counsel at Klavens Law Group, P.C., and Jaidyn Jackson, law student intern at Klavens Law Group, P.C., for their valuable contributions to this article.
 See Waller v. Alqaraghuli, No. 17 MISC 000233, 2017 WL 3380387, at *4 (Mass. Land Ct. Aug. 4, 2017) (Scheier, J.). Although Section 3 does allow regulation of solar facilities as “necessary to protect the public health, safety or welfare,” in the case of a local zoning bylaw whose prohibition of solar use is preempted, a local zoning board cannot then choose to regulate solar use “by a case-by-case determination by the Board.” Id. at *5 n.7.
 See, e.g., Letter from the Office of the Attorney General Municipal Law Unit to Town of Plympton, at 2 (Apr. 3, 2020) , https://massago.onbaseonline.com/MASSAGO/1801PublicAccess/mlu.htm) (input Case Number “9750”; then click “Search”; then follow hyperlink) (advising Town that, [i]n applying [solar bylaw amendments] the Town should consult closely with Town Counsel to ensure that the Town does not run afoul of [Section 3]”).
 See PLH LLC v. Town of Ware, No. 18 MISC 000648, 2019 WL 7201712, at *3 (Mass. Land. Ct. Dec. 24, 2019) (Piper, C.J.) (holding that zoning bylaw may require a special permit for solar energy use in a particular district but special permit review “must be limited and narrowly applied in a way that is not unreasonable, is not designed or employed to prohibit the use or the operation of the protected use, and exists where necessary to protect the health, safety or welfare”); cf. Waller at n.7 (suggesting that municipal authority under Section 3 to regulate solar use as necessary to protect public health, safety and welfare can only be exercised in crafting a generally applicable bylaw, not to justify case-by-case determination with respect to particular projects).
 See, e.g., Ayotte v. Town of Cheshire Planning Board, CA No. 17-275, slip. op. at 9-13 (Mass. Sup. Ct. May 4, 2018) (Ford, J.) (refusing to uphold planning board’s denial of special permit for solar project based on concerns about solar glare and inadequate screening and remanding to the board “for the consideration and imposition of any reasonable conditions”) (emphasis in original).
 Briggs v. Zoning Board of Appeals of Marion, No. 13 MISC 477257, 2014 WL 471951 at *4 (Mass. Land Ct. Feb. 6, 2014) (Sands, J.).
 Duseau v. Szawloski Realty, Inc., Nos. 12 MISC 470612, 12 MISC 477351, 2015 WL 59500 at *8 (Mass. Land Ct. Jan. 2, 2015) (Cutler, C.J.); PLH LLC, 2019 WL 7201712 at *3.
 Briggs, 2014 WL 471951 at *4.
 Duseau, 2015 WL 59500 at *8 & n.11.
 PLH LLC, 2019 WL 7201712 at *3.
 See 225 CMR 20.07(4)(g); Mass. Dep’t of Energy Resources, Guideline Regarding Land Use, Siting, and Project Segmentation at §§ 3, 4(b) (revised Oct. 8, 2020) (the “Land Use Guideline”).
 See Land Use Guideline, §§ 5(4)-(5).
 See 225 CMR 20.02 (definition of Agricultural Solar Tariff Generation Unit) and 20.06(1)(d) (eligibility requirements); Guideline Regarding the Definition of Agricultural Solar Tariff Generation Units (the “ASTGU Guideline”).
 In addition, Sections 14(A) and (B) of the FAQs state that any roll-back and conveyance tax are to be assessed “only on that portion of the land on which the use has changed to the non-qualifying use.”
Jonathan Klavens is the principal of Klavens Law Group, P.C. He practices across the fields of corporate, land use and environmental law, with a special focus on the development, financing and purchase and sale of clean energy projects, as well as the formation, financing and ongoing support of cleantech companies.
Courtney Feeley Karp is senior counsel at Klavens Law Group, P.C. where she advises clients on development and compliance matters for clean energy projects, including those located on agricultural land. Previously she served as counsel at the Massachusetts Department of Energy Resources and the Massachusetts Senate Ways & Means Committee.
Betsy Mason is senior counsel at Klavens Law Group, P.C., where she focuses her practice on resolving real estate, land use and permitting, and environmental compliance issues arising during the development, construction and acquisition of renewable energy projects. Her past positions have included, among others, in-house counsel for real estate and business development at a leading national solar developer and Senior Assistant Regional Counsel at EPA Region 1 in Boston.
by Eric Shupin
Discriminatory government policies in zoning and land use over the last 50 years have intentionally created racially segregated communities with concentrated areas of poverty. More than a half-century since passage of the Fair Housing Act of 1968, “even as metropolitan areas diversify, white Americans still live in mostly white neighborhoods.” In the Boston area, residential racial segregation exceeds the national average significantly, with Black and Hispanic households overwhelmingly residing in communities with the greatest educational challenges, limited resources, and the poorest educational, economic, and health outcomes. Alarming emerging data from the COVID-19 pandemic suggests that in urban cores, “[b]lack and brown people are dying at rates more than twice their share of the population”—likely because high density urban areas are comprised disproportionately of racial minorities with higher prevalence of preexisting poor health-related conditions. The racial gap in COVID-19 deaths exposes the urgent need for bold government intervention to undo the legacy of decades of exclusionary zoning that continues to perpetuate residential segregation in the Commonwealth.
AFFORDABLE HOUSING SHORTAGE AND SEGREGATION
An adequate, affordable housing supply throughout Massachusetts is critically necessary to disrupt existing patterns of residential segregation. As of 2018, 32% of Black and 16% of Latinix/Hispanic residents of Massachusetts lived in Boston. This is compared to the state’s overall population breakdown of 7% Black and 12% Latinx/Hispanic.
Not nearly enough housing has been produced outside of Boston over the past 30 years. Between the 1960s and the 1990s, annual housing production in Greater Boston actually dropped by 52 percent, and, multifamily housing production dropped by more than 80 percent. Consequently, rents and home prices in the region have been perennially among the highest in the nation, placing an increasing and unsustainable burden on renters, especially lower-income residents who are disproportionately people of color. In 2017, with only about three new housing units permitted for every thousand residents, Greater Boston continued to rank among the top-five in average housing costs and ranked 18th in housing production among the nation’s 25 largest metropolitan areas.
An adequate housing supply can help stabilize prices and enhance affordability, but production alone will not address the Commonwealth’s persistent patterns of racial residential segregation. Legislation and land use policies that explicitly address the need for affordable housing to be equitably distributed throughout Massachusetts are needed. Since its enactment in 1967, Chapter 40B has been the main statutory means to incentivize affordable housing production statewide. It empowers local Zoning Boards of Appeals in jurisdictions that have not met the 10% Subsidized Housing Inventory (SHI) “safe harbor” threshold to approve “comprehensive permits” for denser, larger, and higher development projects than would otherwise be permitted under local rules if they contain 20–25% affordable units. In the past 50 years, Chapter 40B has helped create over 60,000 homes, but, after all those years, currently only 67 of Massachusetts’ 351 municipalities are at or above the 10% SHI threshold.
Although Chapter 40B has helped, the Commonwealth still faces serious challenges to combatting patterns of residential segregation. Massachusetts needs additional zoning tools and reforms to overcome our legacy of restrictive zoning.
RESTRICTIVE ZONING AND FAIR HOUSING
The Massachusetts’ Zoning Act, G.L. c. 40A (“Chapter 40A”), delegates to all municipalities (except Boston) the power to enact their own zoning codes to regulate the use of land, buildings, and structures for the purpose of protecting the “health, morals, safety and general welfare of the community.” While the Legislature retains the ultimate authority to set zoning policy for the Commonwealth, in practice, local zoning laws represent the piecemeal expression of their development preferences and local control over such externalities as population growth, traffic congestion, noise, aesthetics, and property values. Without reform, most Massachusetts’ communities will continue to restrict the development of all but the most expensive—and exclusive—type of housing: single-family homes on large lots.
According to Massachusetts’ 2019 Analysis of Impediments to Fair Housing, density-restrictive zoning raises serious civil rights concerns because low-density developments tend to exclude Black and Hispanic residents disproportionately, whereas multifamily rental options promote the inclusion of traditionally excluded minority households.
ZONING REFORM TOOLS
Statutory zoning reform, coupled with judicial development of a more restrictive doctrine on abutter standing, can complement existing incentives, such as Chapter 40B and the Housing Choice Designation.
Enacting Housing Choice
We can start by amending Chapter 40A to make it easier for communities to pass local zoning changes that encourage more housing and “smart growth” development. Currently, any zoning change requires a two-thirds vote by all members of Town Meeting or city council. G.L. c. 40A, § 5. Without amendment, this often insurmountable threshold will ensure the status quo of our exclusionary land use practices.
H.4263, initially filed by Governor Baker, would enable municipalities to pass by a simple majority vote a narrow set of zoning changes related to multifamily housing, including mixed-use developments and accessory dwellings (or in-law apartments), and to approve special permits for certain affordable housing developments that are consistent with smart growth principles. Other zoning changes that might further restrict new and/or affordable housing, such as increasing dimensional requirements, would continue to require a super-majority vote. If sufficiently coupled with subsidies to build affordable housing, this measure would make a substantial impact by empowering the simple majority of the community to vote for such zoning amendments in favor of housing.
Curtailing Frivolous Abutter Challenges
Massachusetts’ jurisprudence on standing has accorded disproportionate power for abutters to challenge a project for the improper purpose of obstruction and delay. Abutter challenges—even without merit—can hold up affordable housing construction sufficiently to make the project financially unviable.
In Murchison v. Sherborn, a decision issued in less than 24 hours, the Supreme Judicial Court ruled that abutters must prove they would suffer some kind of demonstrable harm to have standing to bring a legal challenge to a project. While the claim that a proposed single-family home on a 3-acre neighboring lot would cause density-related harm may be an extreme case, the case exemplifies the frivolous type of challenges many affordable housing developers face. To promote the creation of more diverse housing types across Massachusetts, we must encourage a new jurisprudence or take legislative action on standing to deter frivolous abutter challenges of locally-supported affordable housing developments.
Each municipality can also adopt its own inclusionary zoning policy to require a certain portion of a housing development to be set aside as affordable. For example, Boston’s policy currently requires 13% to be set aside as affordable; Cambridge requires 20% to be income-restricted. The challenge for such policies is that sufficient density is required to make a mixed-income development economically feasible: if the required set aside for affordable units is too high, inclusionary zoning can have the unintended consequence of discouraging new development that can foster diversity in communities that are traditionally opposed to increased density. It is also dependent on a community approving projects large enough to trigger the policy in the first place. Even with these limitations, such policies are an important tool to combat exclusionary zoning.
Zoning is a powerful legal and public policy choice: it determines what gets built and where and who gets to live in a community, as well as who is excluded. Zoning reform is long overdue in Massachusetts to remediate our history of residential segregation. H. 4263 is a first step for Massachusetts to start building desperately needed diverse housing opportunities.
Eric Shupin is the Director of Public Policy at Citizens’ Housing and Planning Association. Shupin is the public policy co-chair of the Boston Bar Association’s Real Estate Section. Shupin holds a J.D. from The George Washington University Law School. The opinions expressed in this article are his own.
by Caiti A. Zeytoonian
In McLean Hospital Corporation v. Town of Lincoln, 483 Mass. 215 (2019), the Supreme Judicial Court (SJC) held that emotional and social skills-based education falls within the scope of a Massachusetts statute that exempts educational land uses from local zoning laws. The case reaffirms that the protection afforded to educational uses under that statute—G.L. c. 40A, § 3, commonly known as the “Dover Amendment”—extends beyond traditional forms of education and includes uses that provide therapeutic or rehabilitative support in addition to a primary educational purpose.
The Dover Amendment provides, in relevant part:
No zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or structures for . . . educational purposes on land owned or leased . . . by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements. (emphasis added).
The law, enacted in 1950 in response to local zoning bylaws that prohibited religious schools within residential neighborhoods, was intended to provide special zoning status for religious and educational uses. Since the Dover Amendment’s inception, the SJC has interpreted the scope of “educational purposes” broadly. See, e.g., Fitchburg Hous. Auth. v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869 (1980) (facility where formerly institutionalized adults resided while “being trained in skills for independent living, such as self-care, cooking, job seeking, budgeting, and making use of community resources” qualified as educational use); Gardner-Athol Area Mental Health Ass’n v. Zoning Board of Appeals of Gardner, 401 Mass. 12 (1987) (residential facility where adults with mental disabilities would be taught “daily living, as well as vocational skills, with the goal of preparing them for more independent living” served a primary educational purpose). These interpretations of the Dover Amendment were consistent with the SJC’s longstanding tradition of taking a broad view of the notion of ‘education’:
Education is a broad and comprehensive term. It has been defined as “the process of developing and training the powers and capabilities of human beings.” To educate, according to one of Webster’s definitions, is “to prepare and fit for any calling or business, or for activity and usefulness in life.” Education may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all.
Mt. Hermon Boys’ Sch. v. Town of Gill, 145 Mass. 139, 146 (1887) (emphasis added). The McLean Hospital decision can be viewed as the latest in a long line of cases continuing this tradition.
The SJC’s Decision in McLean Hospital
The plaintiff, McLean Hospital (“McLean”), purchased land in the town of Lincoln for the purposes of developing a residential skills-based program for adolescent males with “emotional dysregulation,” known as the “3East Program” (the “Program”). Despite receiving initial approval for the Program’s development by Lincoln’s building commissioner, McLean faced opposition from Lincoln residents, who challenged the program before the local zoning board of appeals (the “ZBA”). Upon review, the ZBA decided that the Program was “medical or therapeutic,” as opposed to “educational,” in nature, and, thus, did not qualify for exemption from the town’s zoning laws under the Dover Amendment. McLean filed an action in Land Court to challenge the ZBA’s decision. Finding in favor of the ZBA, the Land Court judge held that the proposed use of land was not “for educational purposes,” due primarily to the fact that the Program focused on “therapeutic” inward-facing life skills rather than “educational” outward-facing life skills.
On appeal, the SJC considered whether the Program, which was “designed to instill fundamental life, social, and emotional skills,” qualified as “educational” for purposes of Dover Amendment protection. McLean, 483 Mass. at 217. Ultimately, the Court concluded that the proposed program and its skill-based curriculum, “although not a conventional educational curriculum offered to high school or college students,” fell “well within the ‘broad and comprehensive’ meaning of “educational purposes” under the Dover Amendment.” Id. at 216 (citation omitted).
The SJC reached this conclusion by applying a two-pronged test: (1) whether “the bona fide goal” of the use can reasonably be described as “educationally significant;” and (2) whether “the educationally significant goal [is] the primary or dominant purpose for which the land or structures will be used.” McLean, 483 Mass. at 220 (citing Regis College v. Weston, 462 Mass. 280, 286 (2012)) (internal quotation marks omitted).
Applying the first prong, the SJC considered the various aspects of the Program’s curriculum, which was to employ a “highly structured, nationally recognized, dialectical behavior therapy approach to attempt to develop social and emotional skills in students with severe deficits in these skills” and to feature a curriculum “taught in an experiential manner by specialists in clinical education.” McLean, 483 Mass. at 217, 219. The Program was to consist of instruction and practice in social and emotional skills focused in: (1) mindfulness and ability to pay attention; (2) emotional regulation; (3) development and maintenance of interpersonal relationships; (4) distress tolerance; and (5) validation, which the SJC described as “well-established areas where prior research has shown that training can be very effective.” Id. at 218. Ultimately, the SJC found that the Program would qualify as educationally significant, thereby upholding the longstanding notion that a program that instills “a basic understanding of how to cope with everyday problems and to maintain oneself in society is incontestably an educational process” within the meaning of the Dover Amendment. Id. at 221 (emphasis in original) (citation omitted).
Applying the second prong, the SJC rejected the Land Court’s characterization of the Program as predominately therapeutic, explaining that a skills development program does not lose its primary educational purpose simply because “the particular competencies taught also may be therapeutic, rehabilitative, or remedial of an underlying condition.” Id. Notably, the SJC rejected the defendants’ contention that the Program was not educational due to the presence of a psychiatrist on staff and the fact that “participants may be a threat to themselves or others, in light of some of their histories of thoughts of suicide or self-injurious behaviors.” Id. at 223. As the SJC explained, the concepts of education and rehabilitation are not mutually exclusive, and “an attempt to sever that which is educational from that which is therapeutic is ordinarily a rather futile exercise.” Id. at 225. Moreover, the SJC rejected the lower’s courts distinction between outward-facing and inward-facing life skills:
Both inward-facing and outward-facing types of skills, even assuming they can be meaningfully parsed in this manner, are part of “the idea that education is the process of preparing persons ‘for activity and usefulness in life’” and thus protected as a significant educational purpose under the Dover Amendment . . . . We also decline to adopt the judge’s parsing of distinctions between a “therapeutic” program to teach inward-facing life skills and an “educational” program to teach outward-facing life skills.
Id. at 224-25 (citations omitted).
Implications of the McLean Decision Moving Forward
Advocates for persons with disabilities have celebrated McLean as a significant victory in the fight towards securing equal access to education for all. The decision confirms that a determination of whether a proposed use has an educationally significant purpose should focus on the program itself, rather than the type of student participating in the program. In so doing, McLean makes it clear that education with a therapeutic purpose and education with a traditional academic purpose are both valid and meaningful forms of education that are equally entitled to benefit from the Dover Amendment.
While McLean has widely been regarded as a decision concerning specialized education for persons with disabilities, the case has important implications for traditional education as well. As public school curriculums continue to evolve towards the inclusion of emotional and behavioral learning, McLean should be viewed as a significant and powerful reminder of what our jurisprudence has long understood to be true: All students must be learners – not just of arithmetic and spelling – but of the capacity to behave and interact with self-awareness, self-regulation, and empathy for others. The SJC has long held that education is a “broad and comprehensive” term. Thus, the importance of McLean does not lie in the creation of new legal precedent, but in the deliverance of an impetus to align society’s understanding of what it means to educate a human being with that of our courts.
Caiti A. Zeytoonian is an Antitrust & Competition associate at Morgan, Lewis & Bockius LLP. She represents and advises clients in connection with federal and state government antitrust investigations, civil and criminal antitrust litigation, and antitrust compliance issues.
by City Councilor Lydia M. Edwards
Boston’s economy is thriving. Why then are so many residents of the City and Commonwealth struggling to find and afford housing, remain in the communities they love, become homeowners and build wealth? A shortage of housing that serves the needs of all economic classes and family structures is certainly part of the problem. But simply building across the region will not solve our state’s persistent housing affordability crisis. To house our diverse, growing population, we will need a multi-pronged approach that balances growth and prosperity with protection of all residents during both recession and economic booms and addresses the widening wealth gap that plagues our City and the Commonwealth. As Boston City Council Chair of the Housing and Community Development and Government Operations Committees, my view is that Boston can lead through housing policies that raise revenue for affordable housing, shape new inclusive neighborhoods through planning and zoning that affirmatively furthers fair housing, and stabilize communities through protections against involuntary displacement and equitable opportunities for home ownership.
Revenue for Affordable Housing
With the decades-long decline in federal funding, localities must look to other sources to finance the preservation and production of housing that is affordable to low- and moderate-income residents. Boston recently passed a home rule petition to collect a transfer fee of up to 2% on high-value real estate transactions that exceed $2 million dollars, subject to exemptions (“Transfer Fee Home Rule”). Enacted, the Transfer Fee Home Rule could generate as much as $169 million per year for affordable housing in Boston, vastly outstripping current resources at the City’s disposal. Municipalities as different as Somerville, Concord and Nantucket have also proposed transfer fees to fund their affordable housing, and 38 states and localities already have excise taxes on property sales.
Boston also has a pending home rule bill to authorize the City to update its existing Development Impact Program (“Linkage”) and Inclusionary Development Policy (“IDP”) which are each intended to mitigate the increased demands for affordable housing and job training attributable to large-scale developments. HB 4115. Enacted, HB 4115 would permit the City to make its own decisions to adjust the linkage fees to enable Boston to align more efficiently with changing market conditions and local needs without waiting for approval of the full General Court as currently required by statute; extend the IDP requirements (e.g., to create 13% of development as income-restricted units or contribute equivalent funds) which currently apply only to market-rate housing developments with 10 or more units and are in need of zoning relief, to all large projects regardless of whether zoning relief is needed; and codify the IDP into Boston’s Zoning Code.
Inclusive Zoning and Planning
Several “large projects” subject to Boston’s Article 80 Development Review and Approval process–including the former Suffolk Downs race tracks in East Boston, the Bunker Hill public housing in Charlestown, and the Mary Ellen McCormack public housing in South Boston–provide the City with unprecedented opportunities to shape entire new neighborhoods that provide an inclusive range of housing options to accommodate the City’s diverse population, while disrupting historic concentrations of poverty and patterns of racial and cultural segregation and providing access to employment and training opportunities for affected residents.
For public housing redevelopments, this may mean ensuring that income-restricted units are integrated with the market-rate units, whereas in purely private developments like Suffolk Downs, it may mean planning to ensure sufficient “affordable units” of the right bedroom size to house families and a community benefit agreement to mitigate meaningfully against adverse development impacts and hardships. I have proposed a zoning change for Boston to systematically ensure that all developers undertake deliberate and “meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics.” This change would amend the text of Boston’s Zoning Code to expressly incorporate our preexisting federal Affirmatively Furthering Fair Housing obligations. Seattle and Portland, for example, already review their plans with a lens for racial equity and displacement risk along with opportunities for economic growth, to inform their choices.
The City also recently strengthened its comprehensive planning under the Climate Ready Boston Initiative by passing an Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston to ensure the equitable protection of all residents from the effects of climate change.
Boston has been taking aggressive steps to address the chronic housing crisis since October 2014 when the mayor’s Housing Advisory Task Force issued Housing a Changing City: Boston 2030, which was updated in 2018. The original Plan called for the production of 69,000 new housing units by 2030 with specific targets for different affordability levels in an effort to create a more equitable and inclusive City. Beyond production, the City also dedicates funds to support the acquisition and deed-restriction of properties as affordable housing, regulates and restricts short-term rentals, protects against condominium conversions, and supports a right to counsel in eviction proceedings––all measures intended to protect residents, especially long-time, low-income, elderly, and disabled tenants, against involuntary displacement. The City also created the Office of Housing Stability (“OHS”) in 2016, the first of its kind in the nation, to work across City departments and with external partners to promote policies, practices, and programs that are effective in achieving housing stability for tenants at risk of eviction, which is also critical to stabilizing communities like Boston where the majority of the population is renters.
Other high-cost cities also have passed right to counsel legislation, and some states such as Oregon, California and New York are moving towards rent stabilization policies which would allow rent increases but prohibit increases as high as those experienced by many Boston residents. These states, as well as Boston, have also looked to “just cause eviction” policies in efforts to protect tenants current with rent and who otherwise have not broken their lease agreements.
Additionally, to encourage home ownership, Boston has expanded the availability of low-interest loans to moderate-income families through the ONE+ Boston program and approved zoning to allow for accessory dwelling units. Other policies which support resident-controlled housing, such as cooperatives, cohousing and community land trusts; the co-ownership of such housing by residents; and a resident’s right of first refusal to purchase, would each promote community stability, as well as individual opportunity to gain equity and build wealth.
Boston’s housing affordability crisis is not abating, and our response has not scaled up to protect all residents. With bolder action, we can create lasting stability in neighborhoods and reverse historic patterns of discrimination and dispossession in our real estate market, as well as in zoning and planning decisions. To achieve community stability we need a multifaceted approach to the housing shortage that is responsive to the diverse needs of all residents and to historic inequities and barriers to enabling them to remain in place and housed in their communities of choice.
Lydia Edwards has spent her entire career as an advocate, activist, and as a voice on behalf of society’s most vulnerable. She served as the deputy director within the Mayor’s Office of Housing Stability, as a public interest attorney with Greater Boston Legal Services focusing on labor issues, and she currently represents District One on the Boston City Council. For the 2020-2021 council session, she serves as Chair of the Committees on Housing and Community Development and Government Operations.
Where a Lawyer Makes All the Difference – And Only One Side Has One: Adjartey and the Urgent Need for Court Reform and a Right to Counsel in Eviction CasesPosted: November 14, 2019
by Esme Caramello, Joel Feldman, and Geraldine Gruvis-Pizarro
Each week, more than 750 tenants across Massachusetts face eviction in the courts of the Commonwealth. While the vast majority of landlords bringing eviction cases have counsel—almost 80% in the state’s Housing Courts last year—fewer than 9% of people faced with losing their homes have a lawyer to represent them. See Housing Court Department, Fiscal Year 2019 Statistics (2019). This disparity in access to counsel would create an unjust power imbalance in any legal setting. In the context of eviction cases, with their tight timelines and complicated procedural rules, the advantage that represented landlords enjoy over their unrepresented tenants is even more troubling.
In the summer of 2019, the Supreme Judicial Court took up this systemic inequality in Adjartey v. Central Division of the Housing Court Department, 481 Mass. 830 (2019). In a striking opinion on behalf of a unanimous Court, Chief Justice Gants reached far beyond the individual claims of the parties to describe an onerous summary process system and the barriers that pro se litigants face in trying to navigate it. In its breadth and detail, the opinion illustrates how “the complexity and speed of summary process cases can present formidable challenges to individuals facing eviction, particularly where those individuals are not represented by an attorney.” Id. at 831.
The decision makes a compelling case. Summary process is procedurally complex to begin with, id. at 834, and this complexity is “exacerbated by the web of applicable statutes and rules.” Id. at 837. The Uniform Summary Process Rules are just one part of the procedural maze. Id. at 836-37. The Rules of Civil Procedure also apply, but only sometimes, as do an array of statutes and standing orders. As the Court observed, “[d]eciding when to apply which of these rules—and how to resolve inconsistencies among them—is [a] formidable challenge for an unrepresented litigant seeking to comply with fast-moving deadlines, especially when that litigant is also facing the stress of a potential eviction.” Id. at 837.
Further complicating the task of the pro se litigant, the Court noted, is the speed at which a summary process case proceeds. Id. Once a case is filed, it is scheduled to go to trial on the first court date, just ten days later. Upon receipt of the Summons and Complaint, a tenant must figure out that an “answer” is required, and file and “serve” it, within a week after the case is filed. If she does not properly assert a “jury demand” in that answer, she waives her Constitutional right to trial by a jury of her peers. The tenant also must understand what “discovery requests” are and make sure her landlord receives them within that same short week. Overall, the time from service of process to judgment and execution can be as little as 19 days. Two business days later, a constable can remove the tenant from her home. As the Adjartey Court observed, “[t]he swiftness of this process … leaves little room for error.” Id. at 837.
As noted above, beyond the inherent complexity and speed of summary process, the vast majority of tenants are attempting to figure out the process on their own. In the words of the Court, “summary process cases are complex, fast-moving, and generally litigated by landlords who are represented by attorneys and tenants who are not.” Id. at 834. Because “in most cases, … the landlord has an attorney who understands how to navigate the eviction process and the tenant does not,” the system is not just out of reach for tenants, but also out of balance. Id. at 838. This imbalance presented an injustice the Adjartey Court could not ignore.
In an “Appendix” following the Adjartey decision, the Court attempted to gather, in one place, all the procedural laws governing summary process cases. Doing so took 35 slip opinion pages. While the Adjartey Appendix might be a useful primer on summary process for a lawyer or experienced advocate, it looks different from the perspective of a low-income mother with limited English proficiency and severe anxiety facing eviction. For her, and for most unrepresented tenants, the Appendix primarily highlights what the rest of the Adjartey decision implies: the eviction system is too hard to understand and navigate without the assistance of a lawyer. And where landlords generally have this assistance and tenants do not, the Appendix is an indictment of a system that aspires but fails to offer equal justice to all.
In a study of summary process judgments listed on masscourts.org from 2007-2015 in three out of the then-five divisions of the Housing Court (Boston, Central and Western), the Access to Attorneys Committee of the Access to Justice Commission found that landlords won judgment a shocking 98% of the time. See Shannon Barnes et al., Final Report of the Access to Attorneys Committee of the Massachusetts Access to Justice Commission, 9 (May 2017). With Adjartey, the Supreme Judicial Court has shown us why.
Court Reform as a Necessary Step
Reforming the summary process system is an urgent need. To that end, the Trial Court has recently created a committee that has begun to work on simplifying court forms. Developing plain-language, accessible forms that the typical pro se litigant can understand and use is a necessary first step. But forms alone will not level the playing field in a process that is too complicated and too fast to navigate without counsel.
There are many simple changes that would make summary process more accessible for pro se litigants. At a recent meeting convened by the Trial Court’s summary process reform committee, for example, most tenant lawyers and landlord lawyers agreed that the first court date in an eviction case should not be a trial. Instead, it can be an opportunity for the parties to explore settlement through mediation, and for unrepresented litigants to learn more about the process and seek help from a volunteer lawyer. It also can be a time for tenants to prepare the answers, jury demands, and discovery requests that they may be learning about for the first time when they arrive at court. We are hopeful that the court will soon implement this popular and sensible reform.
A range of other simple reforms are outlined in detail in a December 2017 report that Massachusetts submitted to the Public Welfare Foundation after a yearlong examination of “Justice for All” in the Commonwealth led by a team of judges and practitioners that included Chief Justice Ralph Gants. See The Massachusetts Justice for All Project, Massachusetts Justice for All Strategic Action Plan, 34-56 (Dec. 22, 2017). From rethinking cellphone bans that exclude unsuspecting tenants (and their evidence) from courthouses—a step the Trial Court has recently agreed to take—to promoting flexible scheduling that enables low-wage workers to avoid missing work, the Justice for All report is full of small and big ideas that would make the system fairer. The authors of this article sit on a committee of the Access to Justice Commission tasked with pursuing the report’s recommendations, but a much broader effort is needed for real change to happen.
If Landlords Have Lawyers, Tenants Need Lawyers, Too
In an ideal world, our housing dispute resolution system would be simple enough for people to use on their own, and the systemic power imbalances created by dramatic disparities in representation would be eliminated. But in a system designed for lawyers where only one side has one, access to substantive justice is not and cannot be equal. Tenants need lawyers to make the system work fairly.
Existing fee-shifting statutes should entice private attorneys to represent tenants in many eviction cases, and a few lawyers around the state have built financially successful practices representing tenants, but for reasons the Access to Justice Commission is still studying, fee-shifting statutes are underutilized. “Lawyer for a day” programs are meaningful and certainly help. But the problems Adjartey describes cannot be solved by last-minute limited assistance representation, even with experts doing the work. Too much has transpired by the time the lawyer-for-a-day steps in, when answers and jury trials and discovery have been waived by the unsuspecting tenant and the opportunity to investigate or gather admissible evidence has passed. As a 2012 Boston Bar Association study showed, only vigorous full representation enables tenants to fairly litigate their claims. See Boston Bar Association Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention (Mar. 2012) (summarizing research by Harvard Professor James Greiner and Harvard College Fellow Cassandra Pattanayak showing dramatic differences in outcomes for tenants receiving full representation by experienced litigators as opposed to advice through lawyer-for-a-day program).
New York City, San Francisco, Newark and Cleveland have all recently implemented a right to counsel for tenants in eviction cases. Massachusetts is poised to follow suit with several bills under consideration on Beacon Hill. The active support of the bar for these bills is crucial to bring balance, and legitimacy, to our summary process system. Adjartey is our call to action.
Esme Caramello is a Clinical Professor of Law at Harvard Law School and the Faculty Director of the Harvard Legal Aid Bureau. She is a Trustee of the Boston Bar Foundation and a member of its Grants Committee, as well as a member of the Massachusetts Access to Justice Commission and co-chair of its Housing Working Group.
Joel Feldman is a shareholder in the law firm of Heisler, Feldman & McCormick, P.C.. He serves on the Executive Committee of the Access to Justice Commission,and co-chairs the Commission’s Housing Working Group.
Geraldine Gruvis-Pizarro has been representing tenants in eviction cases for the past four years and is currently a staff attorney at Volunteer Lawyers Project (VLP) in the housing and family law units. She is also the VLP Chairperson at the statewide Language Access Coaliton. Attorney Gruvis represents VLP at the BBA Real Estate Public Service Committee working alongside private attorneys, the court and the Boston Bar Association to maintain high quality services to the public at the Eastern Division of the Housing Court in Boston.
by Olympia Bowker
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.
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.
by Kate M. Carter
In Bellalta v. Zoning Board of Appeals of Brookline, 481 Mass. 372 (2019), the Supreme Judicial Court reaffirmed the process by which a preexisting, non-conforming single- or two-family structure can be altered or expanded, clarifying the framework established by courts wrestling with the “difficult and infelicitous” language of G.L. c. 40A, Section 6 for nearly four decades. Bellalta confirmed that changes to such structures can be made by special permit without the additional need for a variance.
The Section 6 Quicksand
Section 6 regulates the application of local zoning to preexisting, nonconforming structures and uses. Its language reflects a tension between competing philosophies governing the use and development of Massachusetts land. On the one hand zoning is interested in the elimination of nonconformities. But zoning also reflects the notion that “rights once acquired by existing use or construction of buildings in general ought not to be interfered with.” Opinion of the Justices, 234 Mass. 597, 606 (1920). Thus, under Section 6, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun … but shall apply to any change or substantial extension of such use … to any reconstruction, extension or structural change of such structure … except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority … that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming [structure or] use to the neighborhood.
(Emphasis added). In two sentences, the statute (i) protects previously compliant structures and uses from the effect of subsequently enacted zoning bylaws, (ii) preserves the need to comply with zoning if one wants to change or alter a nonconforming structure or use, and (iii) creates a separate exemption for certain changes or alterations to single- and two-family structures. In Bellalta, the SJC examined the extent of the protections afforded by the “second except clause” to owners of single- and two-family preexisting, nonconforming structures.
Underlying Facts and Procedural Posture
Defendant homeowners owned a unit in a two-unit Brookline condominium. They proposed adding a dormer to add 677 square feet of living space. The building did not comply with the floor area ratio (“FAR”) – the ratio of building gross floor area to lot area – for the zoning district in which it was located. The FAR for the zoning district was 1.0. The FAR for the defendants’ building was 1.14, which would increase to 1.38 with the new dormer.
After being denied a building permit, the defendants applied for, and were granted, a “Section 6 finding” by the Brookline Zoning Board of Appeal. The Board found that the proposed addition and resulting increase in FAR would not be substantially more detrimental to the neighborhood than the nonconforming structure was prior to renovation. Plaintiff abutters appealed, arguing that because Brookline’s bylaw expressly prohibited FAR increases of more than 25%, defendants also needed to apply for a variance – a more difficult and narrowly-available type of zoning relief.
The “Interpretative Framework”
Beginning with Fitzsimmonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 (1985), and culminating with Bjorklund v. Zoning Board of Appeals of Norwell, 450 Mass. 357 (2008), the courts have established a three-step framework to analyze a homeowner’s request to alter, reconstruct, extend, or change a preexisting, nonconforming, single- or two-family home. First, how does the structure violate current zoning? Second, does the proposed change intensify that non-conformity? If the answer to question two is “no”, the proposed change is allowed by right, without the need for relief. Only if the answer to question two is “yes” must a homeowner apply for a finding by the local board that the proposed change will “not be substantially more detrimental than the existing nonconforming use to the neighborhood.” Bellalta, 481 Mass. at 380-81.
In Bellalta, the defendants argued that the new dormer would make the building more consistent with the architecture and dimensions of other buildings on the street. Moreover, the proposed addition was modest – it only increased the habitable space by 675 square feet. Thus, they argued that the new dormer would not be substantially more detrimental to the neighborhood than the existing, nonconforming building. The Board agreed, issued the Section 6 finding, and allowed the project to proceed without a variance. Bellalta, 481 Mass. at 383; see also Gale v. Zoning Board of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011).
In upholding the Board’s decision not to require a variance, the Bellalta court explained that since the “second except” clause was adopted in 1975, the Legislature has amended Section 6 on multiple occasions, and never clarified the language – thereby ratifying the courts’ interpretative framework. Bellalta, 481 Mass. at 383. To require the defendants to also apply for a variance would allow the Brookline bylaw to eliminate the special protections otherwise afforded preexisting, non-conforming single- or two-family structures by Section 6. Id. at 386 – 87.
Bellalta’s Significance Amidst a Growing Housing Crisis
Underlying the language of Section 6, the resulting interpretative framework, and the Bellalta decision is a value judgment that extra effort should be taken to protect a particular segment of housing stock: single- and two-family homes. The protections afforded preexisting, nonconforming single- and two-family homes would be illusory if owners were obligated to undertake the burden of applying for a Section 6 finding and a variance. Bellalta, 481 Mass. at 383. The time and costs associated with such a process might mean that homeowners would forego the renovation and maintenance of older, “starter” homes leaving them to be torn down and replaced with new, more expensive housing. Id. at 384. Bellalta’s re-affirmation of the “special protections” afforded to single- and two-family homes is particularly important amid today’s housing crisis. Section 6 provides a valuable counterbalance to municipalities seeking to stifle housing production by increasing minimum lot sizes or other dimensional requirements. Bellalta, 481 Mass. at 384 – 85. The Section 6 process allows homeowners to make changes to accommodate evolving housing needs, without adding additional demand to an undersupplied housing market. By affirming the streamlined process by which homeowners of preexisting, nonconforming single- and two-family homes can make changes to their homes, the SJC in Bellalta, reaffirmed the Legislature’s decision to protect single- and two-family homes. Section 6’s protections will continue to play an important part in helping to address Massachusetts’ growing need for more habitable living space within an increasingly expensive and diminishing pool of available land.
Kate Moran Carter is a shareholder at Dain ǀ Torpy. She represents clients in disputes concerning the ownership, operation, development, and use of real estate.
 If the proposed change will create new nonconformities, a variance will be required.
 In Bjorklund, the SJC sanctioned certain types of improvements, without the need for a Section 6 finding, because the small-scale nature of such improvements “could not reasonably be found to increase the nonconforming nature of the structure.” 450 Mass. at 362 – 63. Although the Bellalta court implied that the defendants’ proposed dormer was the type of small-scale improvement, that would not require a Section 6 finding, the defendants had conceded that the proposed increase in FAR from 1.4 to 1.38 would increase the structure’s nonconforming nature. Bellalta, 481 Mass. at 381 – 82.
by Kevin O’Flaherty, Alana Rusin, and David Zucker
On November 13, 2017, the Supreme Judicial Court (“SJC”) held in 135 Wells Avenue, LLC v. Housing Appeals Committee, 478 Mass 346 (2017) (“135 Wells”), that, although a local zoning board of appeals (“ZBA”) has broad powers to grant “permits or approvals” under G.L. c. 40B, it does not have the authority to modify municipal property rights, including restrictive covenants.
Sections 20 to 23 of G.L. c. 40B (“Chapter 40B”), the Anti-Snob Zoning Act, were enacted in 1969 to “ensure that the local municipalities did not make use of their zoning powers to ‘exclude low and moderate income groups.’” 135 Wells, supra, at 351. Chapter 40B allows developers of projects that contain at least 25% “affordable housing” (defined as housing for those earning 80% or less of the area median income) to apply for all local approvals in a single “comprehensive permit,” and gives the ZBA the “authority to . . . override local requirements or regulations, and to issue ‘permits or approvals’” for all aspects of the development. Id. The override provision empowers ZBAs to approve projects that are higher, denser, or larger than otherwise allowable under existing regulations, and even to allow residential uses in non-residential zones. See, e.g., Eisai, Inc. et al. v. Housing Appeals Committee & Hanover R.S. LP, 89 Mass. App. Ct. 604 (2016). When a town is below certain Chapter 40B thresholds (e.g., less than 10% of the town’s housing stock is affordable), it is very challenging for a town to deny a comprehensive permit. See G.L. c. 40B, § 20; 760 C.M.R. § 56.03(1); DHCD Guidelines (rev. Dec. 2014). Finally, an applicant for a comprehensive permit aggrieved by a ZBA’s decision may appeal to the Housing Appeals Committee (“HAC”) in the Department of Housing and Community Development. G.L. c. 40B, § 22.
In May 2014, 135 Wells Avenue, LLC applied for a comprehensive permit to construct a 334-unit 40B development on land in Newton. The site was zoned for limited manufacturing use and also was subject to restrictive covenants granted to Newton that, among other things, prohibited residential use and required a portion of the site to remain open space. The developer concurrently filed with Newton’s legislative body (“Aldermen”) a petition to amend the restrictive covenants to allow residential use and to permit construction in the open space area. The petition was denied in November 2014. The ZBA also denied the developer’s comprehensive permit application on the grounds that Chapter 40B does not allow the ZBA to amend or waive restrictive covenants that constitute city-owned interests in land which can be amended or released only by the Aldermen.
In December 2014, the developer appealed the ZBA’s decision to the HAC; a year later, the HAC affirmed the ZBA’s decision, holding that the restriction and requested amendments are not within the sort of “conditions or regulations” or “permit or approvals” that are subject to Chapter 40B. The developer then sought judicial review by the Land Court. In August 2016, the Land Court determined that Chapter 40B does not allow either the ZBA or the HAC to require the city to amend the deed restriction to allow for residential use. The Land Court also held that the fact that the site was never used for limited manufacturing as envisioned when the property interests were granted did not change the validity of those interests. The developer sought direct appellate review. The SJC affirmed the Land Court’s rulings and reasoning in full.
The key to understanding 135 Wells is to recognize that, although Chapter 40B grants a ZBA broad authority to grant “permits or approvals,” it does not include “authority . . . to order the city to relinquish its property interest.” 135 Wells, supra, at 348. Also key is the fact that the SJC had previously decided that the deed restrictions at issue are property interests of Newton, id. at 353 (citing to Sylvania Elec. Prods. Inc. v. Newton, 344 Mass. 428, 430 (1962)), and that “both affirmative and negative easements [such as restrictive covenants] are to be treated equally” as property interests. Id. at 357.
In reaching this conclusion, the SJC rejected the developer-appellant’s attempt to distinguish this case from Zoning Bd. of Appeals of Groton v. Housing Appeals Committee, 451 Mass. 35 (2008) (“Groton”), in which the SJC reversed a decision that “order[ed Groton] to grant an easement over town land pursuant to the board’s power to grant permits or approvals under Chapter 40B” on the basis that there is a “fundamental distinction between the disposition or creation of a property right and the allowance of a permit or approval.” 135 Wells at 356 (citing Groton, supra, at 40-41). In 135 Wells, the SJC extended Groton’s logic, holding that the fundamental distinction between a property right and a permit or approval applies equally to affirmative easements (at issue in Groton) as it does to restrictive covenants (at issue in 135 Wells). In doing so, the SJC rejected the developer’s attempt to characterize the restrictive covenants at issue as the “functional equivalent of a ‘permit [ ] or approval[ ]’” that the ZBA or HAC could override under Chapter 40B. Id. at 353. The SJC distinguished the Aldermen’s allowance of prior amendments to the same restrictive covenant as acts of a legislative body instead of a local permit authority, and explained that Chapter 40B does not authorize a ZBA to modify restrictive covenants because these are interests in land, not land use permits or approvals. Id.
135 Wells addressed a heretofore unsettled question under Chapter 40B: if a project is on land subject to a deed restriction held by a municipality, may a local ZBA modify or eliminate the restrictive covenant? In 135 Wells, the SJC held that Chapter 40B does not give a ZBA this power. Accordingly, developers seeking relief from deed restrictions running in favor of a municipality must seek their removal or modification from the local municipal legislative body.
Kevin P. O’Flaherty is a Director at Goulston & Storrs PC and a member of the firm’s litigation group. The focus of his practice is real estate litigation of all types. Over the course of his 25-year career he has represented private developers, individuals, institutions and public agencies in zoning and permitting matters, eminent domain cases, commercial landlord/tenant disputes, purchase and sale cases and a wide array of other real estate related matters. Alana Rusin and David Zucker are Associates at Goulston & Storrs PC where they practice real estate litigation.
On November 6, 2012, Massachusetts voters overwhelmingly approved a ballot initiative legalizing the use of marijuana by qualifying patients who have been diagnosed with a debilitating medical condition. Effective January 1, 2013, the “Act for the Humanitarian Medical Use of Marijuana” presents a number of issues for cities and towns concerning the exercise of their zoning powers. The Act established a process whereby medical marijuana treatment centers, defined as not-for-profit entities that acquire, cultivate, possess, process, transfer, transport, sell, distribute, dispense, or administer marijuana or products containing marijuana for medical use, may apply to the Department of Public Health (DPH) for registration. The Act provides for the registration of up to 35 medical marijuana treatment centers initially, with at least one but not more than five centers per county.
Although no reference is made in the Act to municipal zoning control or its applicability to medical marijuana treatment facilities, the DPH regulations promulgated thereunder in mid-2013, see 105 CMR 725.000, address zoning for these facilities, referred to as registered marijuana dispensaries (RMDs): “The Department does not mandate any involvement by municipalities or local boards of health in the regulation of RMDs, qualifying patients with hardship cultivation requirements or any other aspects of marijuana for medical use. However, nothing in 105 CMR 725.000 shall be construed so as to prohibit lawful local oversight and regulation. . . that does not conflict or interfere with the operation of 105 CMR 725.000.” 105 CMR 725.600. Accordingly, per the Home Rule Amendment, Mass. Const., amend. LXXXIX, Massachusetts cities and towns may in their discretion adopt zoning ordinances and bylaws relative to the siting, development, and operation of medical marijuana treatment centers, as long as their provisions are not at odds with the Act or the DPH regulations.
To Zone or Not to Zone
A municipality is under no obligation to zone for RMDs, and many cities and towns either have yet to adopt such zoning or have elected not to do so. The DPH regulations mandate a buffer zone around certain facilities for children. Absent a more stringent local requirement, “a RMD shall not be sited within a radius of five hundred feet of a school, daycare center, or any facility in which children commonly congregate. The 500 foot distance. . . is measured in a straight line from the nearest point of the facility in question to the nearest point of the proposed RMD.” Municipalities may establish their own buffer zones from these or other facilities, provided they are mindful that, collectively, these zones may not effectively prohibit RMDs city- or town-wide.
The Office of the Attorney General has opined that an outright ban on medical marijuana treatment centers in a municipality frustrates the purposes of the Act and, consequently, is invalid. “The Act’s legislative purpose could not be served if a municipality could prohibit treatment centers within its borders, for if one municipality could do so, presumably all could do so.” Letter from the Att’y Gen. to the Town of Wakefield, Mar. 13, 2013, available at http://www.mlu.ago.state.ma.us/.
The Attorney General’s Office has also rejected bylaws prohibiting home cultivation as an accessory use, restricting home cultivation to a particular area of the community, imposing buffer zones around home cultivation sites, and requiring a special permit for home cultivation. Home cultivation of medical marijuana is authorized by the Act and the DPH regulations for qualifying patients whose access to a RMD is limited by verified financial hardship, a physical incapacity to access reasonable transportation, or the lack of a medical marijuana treatment center within a reasonable distance from the patient’s residence.
For municipalities that choose to zone for medical marijuana by adopting reasonable regulations, the choice is between incorporating RMDs into the zoning already in effect and establishing an overlay district within which RMDs may be sited.
Incorporation into Existing Zoning
Using a more traditional approach to zoning, a municipality may amend its existing zoning ordinance or bylaw to identify and define RMDs and to specify the zoning district or districts where they are permitted. In doing so, it subjects a RMD to the same dimensional and density requirements and performance standards applicable to other uses in the same district. Dimensional and density requirements might include area, frontage, and setback constraints, among others. Performance standards might regulate noise, traffic, or other aspects of a use for compatibility with its surroundings. If a city or town so chooses, it may zone cultivation and processing operations separately from retail facilities. Although both qualify as RMDs per the DPH regulations, these uses need not be co-located.
A city or town may elect to allow RMDs only by special permit, in some or all of the zoning districts in which they are an available use. The Attorney General has cautioned municipalities, however, that an ordinance or bylaw must provide adequate standards to guide a board in deciding whether to grant or deny the special permit. It may not be enough for a municipality to rely on the general requirement of the Zoning Act, at G.L. c. 40A, § 9, that the use be “in harmony with the general purpose and intent of the ordinance or by-law,” nor are a municipality’s special permit criteria for other uses always appropriate for application to RMDs. Municipalities have been advised “to list specific criteria for. . . consider[ation] when reviewing [an] application.” Letter from the Att’y Gen. to the Town of Westborough, July 11, 2013, available at http://www.mlu.ago.state.ma.us/.
In its regulation of medical marijuana treatment centers, a municipality must also be cautious not to run afoul of the zoning exemption available to agricultural uses, under G.L. c. 40A, § 3. To the extent that an RMD’s operations qualify as commercial agriculture thereunder, a municipality cannot require a special permit for, or unreasonably regulate or prohibit, the use.
Creation of an Overlay District
An alternative to incorporating RMDs into an existing zoning ordinance or bylaw is to create an overlay district for medical marijuana treatment centers. An overlay zone is a district superimposed on one or more established zoning districts which may apply supplemental restrictions on uses in these districts or permit uses otherwise disallowed. By adopting an overlay district, a municipality gains greater control over where RMDs may be sited. The limits of acceptable locations need not coincide with the boundaries of the municipality’s existing zoning districts, but may be determined by the city or town in its discretion upon consideration of existing and anticipated land uses and the compatibility of RMDs with these uses. A municipality may incorporate dimensional requirements and performance standards specific to the overlay district, and may even pair these regulations with buffer zones surrounding schools, daycare centers, or other uses potentially impacted by a RMD. A special permit may be required for the development and operation of a RMD within the overlay district; or the municipality may choose to permit these facilities as-of-right or subject only to site plan review.
Host Community Agreements
Several Massachusetts municipalities have opted to negotiate host community agreements with potential RMDs to eliminate or mitigate any possible adverse effects of RMDs. Neither the Act nor the DPH regulations prohibit these agreements. And while a municipality may not require a RMD to enter into a host community agreement, such an agreement may expedite a RMD’s receipt of a letter of support or non-opposition from the municipality, now a requirement of the DPH licensing process as updated in mid-2015. A municipality might otherwise choose to issue its letter of support or non-opposition only upon a RMD’s completion of the permitting process, once the city or town is satisfied that the project has been adequately vetted.
Among the most common subjects of host community agreements are financial compensation due the municipality, taxes, and charitable contributions. Financial assistance to a city or town may help offset community impacts, fund public health and safety initiatives, or otherwise aid the municipality. The payment of real estate taxes or the making of payments in-lieu-of taxes is also worthy of negotiation; otherwise, because RMDs are required by the Act to be not-for-profit entities, they may qualify as tax-exempt. Entering into a tax agreement helps to alleviate any questions about the payment of taxes to the municipality. Finally, a number of Massachusetts municipalities have negotiated charitable contributions by RMDs in exchange for the community’s support of, or non-opposition to, the development of a medical marijuana treatment center.
In summary, Massachusetts cities and towns have a choice about whether to zone for medical marijuana treatment centers and, if they do, of how to approach the rezoning process. Some municipalities have utilized traditional zoning practices, allowing RMDs in one or more existing zoning districts and often requiring a special permit. Other municipalities have developed overlay districts, within which RMDs may be sited subject to dimensional requirements, performance standards, and other regulations specific to the use. Regardless of which approach is chosen, a municipality would be wise to explore negotiation of a host community agreement with a potential RMD and avail itself of the financial incentives that may be offered in exchange for the municipality’s cooperation with the application process.
Lisa L. Mead and Adam J. Costa are partners at Blatman, Bobrowski, Mead & Talerman, LLC. They concentrate their practice in the areas of general municipal, land use and environmental law, representing both municipal and private clients throughout Massachusetts.