If you want to understand exactly why the state has enacted legislation mandating that Newton and other municipalities create zoning districts with greater density, watch Councilor Marc Laredo at this week’s meeting of the City Council’s Zoning and Planning Committee. 

This portion of Councilor Laredo’s comments comes at 1:59:20 of the full meeting video.

I’ll just … one more comment, Madame Chair. It seems to me that there is nothing to prevent us from establishing multi-unit districts if we so choose, the question is whether we’re going to do it within the framework of the state constructs or not. And my view is that the state constructs create significant issues for us in limiting our ability to manage and control what gets built here. And, I think we need to weigh that against, in my mind, what is a very small amount of funding at stake. I’ll leave it at that. Thank you.

Councilor Laredo is right (as was Councilor Lisle Baker, later in the meeting). At any time, Newton could have created more housing opportunity through our zoning. The fact that we could create more housing opportunity through our zoning and haven’t, despite a severe regional housing crisis and a global climate crisis, is exactly why the state is mandating that we create more housing opportunities through our zoning. The whole point of the legislation is to take away “our ability to manage and control what gets built here,” because we’ve used that ability to create exclusionary zoning that limits housing production. Newton (and similarly exclusionary municipalities) are the express target of the legislation.

The law is newly enacted Section 3A of MGL Chapter 40A, which states:

Section 3A. (a)(1) An MBTA community shall have a zoning ordinance or by-law that provides for at least 1 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 this section, a district of reasonable size shall: (i) have a minimum gross density of 15 units per acre, subject to any further limitations imposed by section 40 of chapter 131 and title 5 of the state environmental code established pursuant to section 13 of chapter 21A; and (ii) be located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station, if applicable. (b) An MBTA community that fails to comply with this section shall not be eligible for funds from: (i) the Housing Choice Initiative as described by the governor in a message to the general court dated December 11, 2017; (ii) the Local Capital Projects Fund established in section 2EEEE.

Note the word “shall.” The requirements are non-permissive. 

I’ve explained the new law and its impact on Newton here.

The icing on the cake is that Councilor Laredo has the gall to suggest that Newton should ignore the mandate, because Newton is rich enough to forego the state funds that will be withheld if Newton does not comply. Adding insult to injury, the very exclusionary zoning the state law is trying to change has created the concentration of wealth that make Newton able to afford the penalty.

To be fair, while Councilor Laredo distinguished himself at the meeting with his rudeness to Planning staff and his colleagues, by his breathtaking ignorance of the basics of the legislation, and by his hyperventilating about the consequences, he was not alone in characterizing the city’s compliance as optional. In fact, every single councilor and every member of the Planning staff who spoke framed the decision as whether, not how we would comply.

Even the councilors who are generally friendly to the pro-environment and pro-housing intent behind the MBTA Communities zoning requirements expressed excitement about the “opportunity” the legislation and its regulatory framework provide and are open to the city complying. Again, on this point Councilors Laredo and Baker are absolutely right. This is not an “opportunity.” There is nothing in the state law that prevents or has prevented Newton from upzoning 550 acres to allow 15 unit-per-acre density by right. The MBTA Communities legislation and regulations are a mandate to do what what we could always have done voluntarily, but didn’t. Because. We. Didn’t.

There should be no question about complying with Section 3A. The law is clear. We must.

Let’s discuss how.