The first big test for the state’s new multifamily housing law came and went two weeks ago without any real fireworks.
Just seven communities failed to submit their action plan, a document explaining how they might implement new zoning for multifamily housing now mandated in communities served by the MBTA, by the Jan. 31. deadline. A few more plans trickled in after the deadline, and now there are just four.
For at least one town, though, not complying was no accident.
That would be Middleborough, whose Select Board voted late last year to ignore the new zoning rules, making the Plymouth County town the first place to take an official stance against the law and test the state’s willingness to turn to enforce it.
Officials there complain that the Department of Housing and Community Development painted with too broad a brush when it drafted the zoning requirements, arguing it requires too many new units in towns of Middleborough’s size, and that implementing the guidance would lead to overdevelopment that could harm the town’s character.
“We understand that the state has a housing problem,” said Leeann Bradley, Middleborough’s town planner. “But this is being shoved down our throats. We won’t have any say in what gets built and where. There’s a way for us to do more housing. It’s not this.”
At the crux of Bradley’s complaint with the requirements is that, in crafting the guidelines, DHCD did not adequately take into account how much housing towns have built in recent years, she said. Middleborough, which has about 24,000 people across 69 square miles of land, has permitted more housing over the last decade than a number of other South Coast towns, she argues, around 1,200 units between 2010 and 2020, according to Census data. That, she said, means that the town should be allowed to zone for less new housing.
Middleborough’s current minimum under the guidelines, 1,471 units, is “far too high,” she said. (DHCD considered existing housing stock, as well as developable land near transit stations, to determine how many units communities must zone for. And officials note that the law requires zoning that allows those units to be built, but does not mandate their construction.)
“Asking us to add another 1,500 units, essentially double what we’ve built recently, is absurd,” Bradley said.
So rather than put time into developing zoning that would fit the requirements, officials there voted in December to call off any attempts to comply with the law and sent a letter to DHCD outlining their qualms.
Middleborough’s resistance serves as a reminder that, while most communities have thus far gone along with the law’s requirements, there is still a simmering dissent in cities and towns dominated by single-family homes to most multifamily housing development, especially when it is allowed by right. So far, communities have only had to submit nonbinding plans detailing possible roads to complying with the law, but more resistance may emerge in the months and years to come as deadlines for concrete zoning changes draw nearer.
In this case, officials weren’t concerned with potential penalties from DHCD because Middleborough receives little money from the two grant programs — MassWorks and the Housing Choice Initiative — that are at risk for noncompliant communities. And Bradley said DHCD has yet to contact the town’s housing authority concerning budget reductions, another enforcement mechanism that has been poorly received.
DHCD has yet to signal whether it will pursue further punishments for towns that aren’t moving forward with new zoning, and did not return requests for comment.
There is, however, the threat of legal action from outside groups or in state court, a possibility that was highlighted last week when Boston-based advocacy group Lawyers for Civil Rights sent letters to communities that missed the law’s first deadlines, demanding they comply with the law.
“Suggestions that compliance with this state mandate is optional with no consequences beyond loss of a few state grants doesn’t square [with] the facts,” Clark Ziegler, executive director of the Massachusetts Housing Partnership wrote on Twitter last week. “State courts have explicit authority to enforce the state zoning act [and] I have no doubt that will happen if it proves necessary.”
Mark Germain, the chair of the Middleborough Select Board, equated those suggestions to extortion.
“They offer us these incentives and then strip them away when we don’t go along with this mandate,” said Germain. “But if someone wants to take us to court, we’ll go to court. I’d rather that than overwhelm our town with new development.”
It’s not the first time Middleborough officials have pitted themselves against state initiatives they feared would impact the town’s “rural charm.” The Select Board has been vocal in recent years about its disapproval of the MBTA’s South Coast Rail project, which will add a new commuter rail station in the town, as well as other South Coast towns like New Bedford and Taunton. (Middleborough already has one operational commuter rail station.) The Planning Board voted in 2021 to send a letter to the MBTA expressing its discontent with the project, and even weighed public displays of activism to prevent the station from opening. (The station is under construction and set to open later this year).
But Germain said that while town officials are concerned about permitting too much multifamily development, they’re not opposed to new housing.
The town is in the process of drafting a new housing plan, he said, and there’s growing momentum to allow Accessory Dwelling Units to be permitted by right — meaning that if a proposal fits within building regulations, the Planning Board can’t further scrutinize or deny it. The Planning Board has also been more receptive to multifamily development in recent years, he said, working with developers to create proposals that work for the town. And he cited the pair of so-called 40R districts the town adopted recently, which encourage mixed-use development.
“People think we’re opposed to new housing because of this,” said Germain. “That’s not the case. We’re for new housing that’s done in a thoughtful way. Forcing us to build 1,500 new units does not work for us. Middleborough is not the city of Boston.”