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Massachusetts’ “Housing Choice” Could Deregulate Zoning

A heavily-regulated state has made it easier to approve construction. Is it enough to add more housing?

May 28, 2021

After years of debate, the Massachusetts Legislature passed a bill, long supported by Governor Charlie Baker, that could enable sweeping deregulation of local housing markets. The “Housing Choice” law, passed at the end of January as part of an economic relief package, allows zoning boards to change codes through a simple majority, rather than a two-thirds plurality.

That might seem like a small change, but proponents argue it can break major logjams in getting housing built. The law represents a win for the growing nationwide movement to get state-level preemption of local zoning policy. 

Massachusetts is an expensive state. Moving.com ranks its cost of living as 31% higher than the U.S. average. In the last decade, metro Boston’s GDP grew by 27%, but housing production barely increased, as it trails far lower-demand metros like Cincinnati and Memphis. From 2009 to 2020, a Brookings Institution report finds, Massachusetts’ housing costs rose 53%. Legalizing multifamily housing construction, Brookings found, can drastically reduce prices in expensive suburbs. 

There are a few reasons for the housing shortage, but a common one is local-level NIMBY opposition. This opposition often manifests in the form of public comment hearings. A study of several Massachusetts municipalities by Boston University researchers found that opponents overwhelmingly dominate hearings for new projects.

“The incentives to show up and oppose new housing are far stronger than those to participate in support,” the researchers conclude.

Gov. Baker has argued that this bill creates opportunities for “communities across Massachusetts [to] start to think real hard about how they turn what was once commercial space into residential space [and] to revitalize certain parts of their downtowns and their communities generally.” 

Massachusetts already has some preemption power over local zoning. The state’s Chapter 40B rule allows by-right construction of otherwise noncompliant projects when 10% or less of a municipality’s housing stock is affordable, so long as at least 20% of units built meet affordability targets. As with affordable housing rules elsewhere, the law stirs controversy; it survived a repeal referendum a decade ago. 

But there are also signs that looser regulations are popular with local voters, particularly in the inner-ring suburbs around Boston. Last September, a referendum on a mixed-use development project in Newton, whose median home price is $963,600, passed despite well-organized opposition.

Giving zoning boards the ability to make simple majority changes isn’t a panacea—the boards themselves may have a NIMBY mindset. A provision requiring that transit-served municipalities zone for multifamily housing in at least one Middleborough neighborhood provoked opposition from the planning board, with a member calling the change “outrageous.” And the affordability requirements are a form of inclusionary zoning, which many analysts identify as counterproductive to cutting overall prices.

But Massachusetts’ Housing Choice law is at least a step in the right direction, helping to weaken the grip that restrictive zoning has throughout the Bay State. And it’s yet another case of the state preemption that YIMBY housing activists are pushing for nationwide. Policymakers in California have advanced aggressive zoning deregulation bills from the state level, though they’ve been repeatedly thwarted. A bill in Virginia’s House of Delegates attempted to forbid local government from mandating single-family housing construction, but that effort failed. On the positive side, last December, Oregon passed a law overriding local bans on moderate-density development, as well as limiting the scope of minimum parking rules, which drive up housing costs. A similar bill in Nebraska was advanced early in 2020, but “indefinitely postponed” as of last August. 

State preemption, if it could pass in more states, would be the best way to achieve the housing deregulation America’s cities need to stay affordable and prosperous.  

This article featured additional reporting from Market Urbanism Report content staffer Ethan Finlan.