Background and Purpose

M.G.L. c. 40A, § 3A provides: An MBTA community shall have a zoning ordinance or by-law that provides for at least one district of reasonable size in which multi-family housing is permitted as of right; provided, however, that such multi-family housing shall be without age restrictions and shall be suitable for families with children. For the purposes of 760 CMR 72.01, a district of reasonable size shall: (a) have a minimum gross density of 15 units per acre, subject to any further limitations imposed by M.G.L. c. 131, § 40 and 310 CMR 15.00: The State Environmental Code, Title 5: Standard Requirements for the Siting, Construction, Inspection, Upgrade and Expansion of On-site Sewage Treatment and Disposal Systems and for the Transport and Disposal of Septage established pursuant to M.G.L. c. 21A, § 13; and (b) be located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station, if applicable. The purpose of M.G.L. c. 40A, § 3A is to encourage the production of Multi-family housing by requiring MBTA communities to adopt zoning districts where Multi-family housing is allowed As of right, and that meet other requirements set forth in the statute. 760 CMR 72.00 establishes rules, standards, and procedures to set forth how MBTA communities may achieve compliance with M.G.L. c. 40A, § 3A. Pursuant to M.G.L. c. 40A, § 3A(c), the Executive Office of Housing and Livable Communities (EOHLC) is the regulatory agency for the program and is expressly authorized to issue guidelines, in consultation with the Executive Office of Economic Development, the Massachusetts Bay Transportation Authority and the Massachusetts Department of Transportation, to determine if an MBTA community is in compliance with M.G.L. c. 40A, § 3A. EOHLC is adopting 760 CMR 72.00 pursuant to its authority under M.G.L. c. 6A, § 16G ½ and pursuant to the Decision issued by the Supreme Judicial Court in Attorney General v. Town of Milton, et al. SJC-13580, slip op. (Jan. 8, 2025), holding that the guidelines issued by EOHLC on August 17, 2023 are unenforceable and must be promulgated in accordance with M.G.L. c. 30A, § 3.