TOWN HALL NOTEBOOK

SJC’s MBTA Zoning Decision, Economic Development in Downtowns

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Last week's 23-page ruling by the Massachusetts Supreme Judicial Court (SJC) affirming the state’s multi-family zoning by right mandate imposed on 177 municipalities served by public transportation caused a moment of confusion and an opportunity this week for local boards to clarify the decision's impact.
The MBTA Zoning mandate was an initiative launched by then-Governor Charlie Baker to stem the housing shortage and support economic development. The closely-watched SJC decision focused on whether the town of Milton could be both sued by the Mass. Attorney General and have state grants withheld for its noncompliance with the law. (The SJC’s answer? Yes. And Yes.)
But, the SJC also dinged Governor Maura Healey’s administration in the decision for failing to roll out the guidelines properly and ruled the governor’s Executive Office of Housing and Livable Communities (EOHLC) must re-introduce new guidelines because the original ones were “unenforceable.”
That led to some confusion.  At Monday’s Manchester Planning Board meeting, members asked if the SJC ruling changed anything, since the new zoning was solidly approved by voters at at November’s Special Town Meeting ahead of the state’s Dec. 31 deadline.
PB member Mary Foley urged the board to pause implementation of the new zoning until the new guidelines come out, arguing the decision provides a “limbo” that could give Manchester an out on the law.  Her comments were met with skepticism.  Town Planner Marc Resnick said the new zoning isn’t in limbo at all. In fact, he said, it was put in place the moment voters approved it.
“I’m asking questions we should all be asking. It’s a legitimate question,” said Foley.
“The law stands, and we have to comply with it,” said PB member Susan Philbrick.
But any ideas of limbo were erased by the very next day when, on late Tuesday, the Governor’s office filed new emergency regulations that will be in effect for 90 days while the EOHLC adopts new permanent guidelines.  Under the emergency regulations, communities that did not meet prior deadlines may submit a new action plan to comply with the law by 11:59 p.m. on Feb. 13. and then have until July 14, 2025, to submit a district compliance application to the state.
So far, 29 cities and towns are listed as “non-compliant” by the state, including Gloucester, Ipswich, Wenham, Hamilton, Marblehead, and Rowley.
Essex, which was originally under the gun as a “MBTA Adjacent Community” (which put it under the same density obligation as Manchester), successfully used a state grant-funded consultant, the Metropolitan Area Planning Council (MAPC) to appeal for a lower standard on the grounds that its downtown was in a flood zone, and its infrastructure couldn’t handle the mandated density. The appeal worked. In 2023 the state created a new category, “MBTA Rural Adjacent” and Essex is effectively compliant with the lowered density requirement. It has until Dec. 31, 2025 to submit its plan.
 
Downtowns, and Economic Development
The MBTA Zoning issue is part of a network of thorny issues facing all of Cape Ann.  How to produce more types of housing (beyond large single-family homes)  How to produce housing that is affordable.   How to address escalating real estate prices that are squeezing out small retailers.  And how economic development fits into all of that.
This is no more apparent than in Essex, where historic zoning that would have solidified nearly all the town’s real estate as residential, which was seen as a business unfriendly overstep.  But Essex’s “wild, wild west” zoning history of allowing anything, anywhere—residential, retail, commercial, or industrial—is also seen as extreme. They’re now in search of a happy middle.
Several efforts are going on to create order and opportunity in Essex.  First, the Essex Planning Board is re-drafting the comprehensive zoning bylaw to present to voters.  The Essex Affordable Housing Trust (created in 2022) is working with a consultant to create a Housing Production Plan to file with the state.  Those interested can attend a public forum at 7 p.m. on Thursday, Jan. 30 at Town Hall and a public webinar on the process at 7 p.m. Thursday, Jan. 30.  Both of these are hosted by the Trust and the PB.
At the same time, the downtown businesses will meet with the Essex Board of Selectmen about the future of the Causeway. The discussion was facilitated by the Greater Cape Ann Chamber of Commerce.  A “listening session” will take place at 5 p.m. Wednesday, Jan. 22 at The James restaurant (the former Village Restaurant).  Then, a public forum on the same topic will be hosted by the Essex Board of Selectmen at the Essex Town Hall at 7 p.m. Wednesday, Jan. 29.  To be addressed?  How can zoning, flooding, and regulations work to support a vibrant future of the downtown?  And what can the town do to facilitate and preserve downtown life?
In Manchester, this very discussion is also underway.  On Wednesday, a meeting of the Manchester Downtown Improvement Committee addressed the future of downtown business with members of the Manchester Planning Board, the Select Board and the Dept. of Public Works.  Residents have been reaching out to boards, concerned about the “gaps” in retailers along the stretches of Central, Beach and Summer Streets in the wake of retail business closures that include Helen’s Bottle Shop, Craft, Jamie’s Roast Beef, and, most recently, Cargo Unlimited. The Cargo building’s new owners have shared plans to raze the historic structure and replace it with two residential townhouses.
Chris Olney, chair of the MBTA Zoning Task Force and a member of the Planning Board, said preserving the downtown business district repeatedly came up as his group was developing Manchester’s MBTA Zoning Districts.  He said it was a big vulnerability in the state law that mixed-use downtown properties were excluded from the official housing count.  And it should be addressed.