Chapter 40R of the Massachusetts General Laws encourages cities and towns to establish new overlay zoning districts to promote housing production and, more generally, smart growth development.  Under Chapter 40R communities that adopt special zoning districts allowing “as-of-right” (no special permit required) higher density residential development are provided financial rewards.  These financial incentives come in two forms: the “zoning incentive payment” awarded when the zoning is adopted, and the “bonus payment” awarded when building permits are issued; both are calculated based on number of housing units.  

Chapter 40R districts can be in one of three locations: near transit; in areas of concentrated development such as city, town and, village centers and commercial districts; or in areas that are “highly suitable” for growth by virtue of their infrastructure, transportation access, existing underutilized facilities, and/or location.

While there are many municipalities that have adopted Smart Growth Zoning districts under Chapter 40R, other communities are wary of permitting these districts as-of-right.  While design guidelines and form-based codes (described below) can provide municipalities with considerable control over the design and appearance of compact growth, some communities are unfamiliar with these tools and are concerned that as-of-right zoning will result in loss of local control.  The Legislature should consider modifying Chapter 40R to allow for special permit, but with elimination of the zoning incentive payments that municipalities receive when they adopt 40R as-of-right.  Municipalities would still be eligible for the bonus incentive payments.  As a result, there would be no cost to the Commonwealth and until building permits are issued, and municipalities would have an incentive to approve appropriate projects in the special permit process. 

4.a    The Legislature should modify state statute to allow 40R by special permit (without zoning incentive payments)

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