Streamline Housing Permits in Massachusetts

Delays and uncertainty in the approval of proposed housing developments decrease total production and increase costs. The approval process is particularly onerous in Massachusetts, as Massachusetts has a rich history of local governance, and local governments are typically opposed to new housing because they believe it will lead to increased spending on infrastructure and schools. Most housing thus must be approved in one-off meetings, which are dominated by homeowners who live near planned projects.[1]

To understand the existing permitting process for housing in Massachusetts, we spoke to planners, lawyers, developers, government officials, scholars, and members of the Governor’s Commission on Unlocking Housing Production. Based on our findings, we offer a broad suite of reforms in three categories to reduce delays and uncertainty:

In permitting: 

• Define site plan review as a technical, administrative process. The lack of a site plan review statute has led to many delays and lawsuits. A site plan review statute should limit site plan review to administrative approvals related to technical issues such as traffic access and stormwater runoff.
• Reduce the red tape facing special permits. The legislature should lower the approval threshold for special permits for housing to a simple-majority vote. The legislature should define a contextual permits category and require timely, administrative approval of such permits in large localities.
• Allow third-party administrative reviews of building permit applications. Allow developers to hire licensed third-party planners and engineers to conduct administrative reviews of building permit applications to address municipal staffing gaps and speed up approvals.
• Vest development rights. Massachusetts currently only protects subdivision applicants from regulatory changes made during the application process. To solve this problem, vest development rights at the first request for building permits and zoning approvals.
• Harmonize and refine state and local environmental standards. Ensure that any local environmental standards stricter than the state’s are science-based, transparent, and subject to Department of Environmental Protection (DEP) review before implementation. Restrict local departures from some basic state definitions and measurements, such as the relationships between number of bedrooms, gallons of sewage produced, land conditions, and area necessary for on-site wastewater disposal.
• Ensure that design review standards are specific and objective. Massachusetts should require design review to be limited to specific and objective criteria so that any builder can quickly comply. 

In the appeals process: 

• Discourage the use of lawsuits as a negotiating tactic. “A lot of abutters and attorneys use zoning appeals to get a bunch of money out of a project,” one interviewee told us. This misuse of the system delays justice for others. To discourage this, set a modest bond in abutter appeals and require a written opinion from a certified professional to support any allegation.
• Ensure that appeals go to responsive venues with expert adjudicators. Give more resources to specialized venues, the Land Court, Housing Appeals Committee (HAC), and DEP, along with a clear mandate for rapid decisions. Defendants in land use cases should have the option of transferring the case to the land court, and plaintiffs appealing the denial of a permit should be allowed to appeal to the HAC.

In local government: 

• Train local board members. Training should be required of any planning or zoning board member in order to serve beyond an introductory period, perhaps one or two years. Alternatively, the state could require that each board have a chair and vice-chair who have received appropriate training.
• Allow school impact fees in growing municipalities. The legislature should allow a city or town to charge school impact fees when its under-18 population exceeds its historic peak. The fees must apply only to by-right development and be calculated according to a published formula that abides by constitutional principles of nexus and proportionality. 

Our interviewees commonly described the Massachusetts permitting process as too lengthy, convoluted, and discretionary. And the appeal process only exacerbates these tendencies. In reforming these processes, the policy changes listed above aim to make housing permitting more easily navigable, which will bring housing affordability and abundance to Massachusetts.

Notes