By Joe Stewart

Wrentham elected officials have been holding public meetings to explain the implications of the MBTA Communities program on Wrentham and to secure public comment from residents.  The Planning Board, which is developing zoning districts to comply with the law, has discussed the MBTA Communities program at nearly every meeting since February, as has the Select Board.  

Of particular interest were two Select Board meetings, each with invited speakers.  The first was held on March 19 and included Chris Kluchman, Director of Livable Communities, a division of the state’s Executive Office of Housing and Livable Communities (EOHLC).  The Livable Communities division is responsible for implementing the MBTA Communities program.  Recording of this meeting is available on YouTube: https://bit.ly/3UF3cCw

The second meeting was held on May 9 and included the chairman of the Cape Ann Political Action Committee and an attorney, Michael Walsh, who represents Cape Ann in its suit opposing the MBTA Communities program.  Recording of this meeting is also available on YouTube: https://bit.ly/4bx2xul

Livable Communities

In the first meeting, members of the Select Board shared concerns about the possible impacts of future development on Wrentham, highlighting inadequate infrastructure such as sewer and water, and the costs of traffic, schools, police, and fire.  In responding, Kluchman noted that she too lives in a small town and therefore understands the concerns.  Nonetheless, the law was passed by the legislature, signed by Governor Baker, and it’s her job to oversee the implementation of that law.  Kluchman also oversees the state’s housing-related grant programs, including a new program to address needs such as water lines and intersections.  

Kluchman clarified that the law requires the zoning but as Wrentham has experienced with its existing housing and commercial zones, it takes a lot of work among many stakeholders (key among them land owners, developers, and banks) to deliver new development.  

Regarding water and sewer infrastructure, Kluchman offered an example appropriate to Wrentham, which does not have town sewer and currently has quite limited water supply: assume two acres zoned for 15 units per acre, yielding 30 units.  In Wrentham, that developer might need to use an acre for the sewer leach field and for the well, thus cutting the density in half, down to 15 units. Kluchman also noted the developers of the Wrentham outlets and the Ledgeview complex were responsible for similar infrastructure.

Kluchman then discussed school-aged children, noting that a clear demographic trend is that families are having fewer children and school districts are experiencing declines in enrollment.  It’s possible that if the new housing is built in Wrentham, any children moving into those units could offset enrollment declines and, in any case, those enrollments will take place over time.  Kluchman shared as well that studies show new housing developments are revenue-positive for towns.

Among other topics, Kluchman addressed the “one size fits all” and “every community is unique” concerns, noting that adding multi-family zoning that applies to a small area of land should not alter the character of Wrentham.

Cape Ann PAC

In the second meeting, John Kolackovsky, a Rockport resident who filed a lawsuit in 2022 because of the MBTA Communities program, and an attorney representing the group in its suit, Michael Walsh, presented and took questions.  Similar to the Livable Communities meeting, members of the Select Board offered remarks about concerns and then quickly brought the speakers forward.  

Kolackovsky started with a summary of the towns at which they presented, including Rockport, Gloucester, Manchester, Boxford, Winthrop, Raleigh, Wakefield, Shrewsbury, and Hamilton.  Kolackovsky shared that the legal process is quite slow, having filed suit in 2022.  It’s hoped the next hearing, scheduled for May 14, will actually take place because they have enough parties to designate the suit as a class action.

Kolackovsky introduced the MBTA Communities program as a mandate taking legal rights away from citizens and allocating those rights to a state bureaucracy to arbitrarily change zoning.  Kolackovsky further noted that in return for giving up those rights, communities may still continue to compete for four specific state grants.  

Kolackovsky then posed a series of questions for Wrentham, including: Has the town assessed the legality of the law?  Has the town reviewed the value of the state grants? Has the town figured out the cost of complying, including school costs to educate more children, and the costs of increased fire and police services?

Then Kolackovsky questioned if Wrentham has a housing shortage or just a shortage of affordable housing. Kolackovsky also noted that people are moving out of Massachusetts and that the state is looking at a billion-dollar budget shortfall and thus questioned the viability of future grants.  Following a few more remarks, Kolackovsky asked Michael Walsh to continue the presentation.

Attorney Walsh summarized the history of the law that produced the MBTA Communities program, its purpose to spur housing development, and its high-level requirements, notably a by-right zone authorizing high density housing.  

Walsh then highlighted that while the law was sold to the legislature as an affordable housing law, it does not include an express requirement for affordable housing.  Walsh explained that a developer could build 750 market rate units and do nothing to increase available affordable housing in Wrentham. 

Walsh switched to summarizing the Rockport suit, starting with the principal argument that the statute is unconstitutional under the state constitution, namely “Home Rule” which was adopted by voters in November 1966.  Walsh explained that Home Rule delegates to towns and cities the right to manage their affairs as voters like, and most importantly, the authority to define zoning regulations.  Because the MBTA Communities program requires a change to zoning regulations, their suit contends that is an unconstitutional usurpation of town and city power by the state.

Walsh believes that this is the first time since Home Rule was adopted that the state has directed towns and cities to do something that otherwise was within the power of towns and cities to manage.

Walsh went on to discuss the suit’s other arguments, alleging that the value of the grants are modest in comparison to town budgets; that the guidelines are not enforceable because the guidelines were not developed using the state’s regulation process; and that the rules governing adoption by town meeting (the simple majority exception to adopt high density zoning) is an illegal exception.

MBTA Communities Behind the Scenes

We reached out to Michael Kennealy, Governor Baker’s Secretary of Housing and Economic Development, for his take on the MBTA Communities act. According to Kennealy, then-Governor Baker formed a broad coalition in 2015 to begin to address the state’s housing shortfalls that were impacting and continue to impact economic growth.  The coalition included advocates such as the Citizens’ Housing & Planning Association, Massachusetts Municipal Association, and many other stakeholders including Chambers of Commerce, Massachusetts Realtors, and the AARP.  Importantly, the coalition was composed of both non-partisan and partisan organizations and was negotiated in the State House in a bipartisan manner.  

Kennealy specifically noted that Baker could have vetoed the MBTA Communities program but retained it along with his signature program, Housing Choice.  Housing Choice enables municipalities to adopt high density zoning with a simple majority of votes.  According to Kennealy, the state’s 350 municipalities have prevented nearly all high-density housing development, largely through zoning - nearly all towns and cities do not have zoning authorizing high density housing. Instead, landowners hoping to build such housing must embark on a long, risky special zoning process.

Following Baker’s signing the bill into law, it fell to Kennealy to begin implementing the law.  To that end, he collaborated with the same coalition to build the guidelines.  He noted that more than 400 comments were submitted and analyzed.  

In our conversation, Kennealy directly addressed a common misconception; that the MBTA Communities is a “mandate to build tomorrow.”  In Kennealy’s view, it’s a “mandate to zone.”

Kennealy noted that between 2010 and 2020, approximately 80,000 housing units (multi-family units) were produced in Massachusetts.  Of that 80,000, 30,000 were produced in Boston and another 20,000 by the next 10 cities and towns combined, leaving the remaining 330+ towns and cities having produced 30,000 - the same as Boston.  In other words, most towns did nothing.

Kennealy shared this analogy:  many of us would object if a developer of a quality product for which there was a clear need was prevented from producing the product by government regulation.  Local government is stifling the production of housing, he said.

Kennealy’s final comment was that if we can’t solve this housing problem, we won’t be able to grow.  That’s why every chamber of commerce supported this effort to enable the building of new housing.

CHAPA’s CEO

Rachel Heller, CEO of Citizens’ Housing & Planning Association (CHAPA), shared some of the history leading to adoption of MBTA Communities.  Heller highlighted that in 2014 CHAPA sponsored workshops with affordable housing developers and related interested parties such as housing advocates and municipalities to identify key challenges to producing housing in Massachusetts.  Of the many challenges the workshops detailed, the single most important was summed up with: “If it’s not zoned, you can’t build it.” 

Also in 2014, the Massachusetts Housing Partnership submitted its report, “Unlocking the Commonwealth,” to the legislature documenting obstacles to housing production across the state. The report highlighted that, “It is not any one policy that has failed, but rather many factors that have made Massachusetts one of the most difficult places in the country to build new housing.”  And its number one recommendation?  “Require that every zoning ordinance and bylaw in the Commonwealth provide reasonable opportunity to construct multifamily housing.”

From 2014, Heller listed a number of subsequent efforts.  The Smart Growth Alliance, originally formed in 2003, began collaborating with stakeholders. As Heller recalled, likely in 2015, the Metropolitan Area Planning Council released its housing needs report which concluded the state would need nearly 500,000 units by 2040.  

As the cost of housing rose and the availability of units declined, other organizations joined the effort.  All those voices enabled the Baker Administration to begin negotiating with the legislature on the specific policies to implement.  

For the Baker Administration, Housing Choice, which enables towns to enact high density zoning with a simple majority vote, and an abutters appeal bond, which enables judges to impose a bond to assure abutters’ appeals are not frivolous, were key policies they wanted enacted.  

Similarly, there were advocates for an expansion in the low-income housing tax credit and for a requirement that cities and towns authorize a reasonably-sized zone for high density housing.

As Heller recalled, those efforts spanned multiple legislative sessions before the House Housing Committee voted to advance the Economic Development bill with these policies.  Notably, negotiators compromised on the zoning, limiting it to cities and towns served by the MBTA, which represent more than 50% of the state’s population.

Heller highlighted the Baker Administration’s efforts to craft, pass, and ultimately put into law those policies.  Similarly, Heller listed the efforts of the Healey Administration to accelerate housing production through the Affordable Home Act, currently making its way through the legislature. That bill includes more than 25 policies such as authorizing accessory dwelling units for all single-family homes by right (much like the MBTA Communities authorized a by-right high density housing zone), a real estate transfer fee (a new source of funding for cities and towns), and a doubling of the grant funding available for affordable and public housing to more than $4B.