First, I recognize that this change affects certified plan communities as well as non-certified plan communities, however non-certified communities will be far more adversely impacted by this change.
I know every planner has probably questioned the super-majority vote requirement at town meeting. This is particularly true when a zoning change we have worked quite hard on has failed, with better than half the residents supporting the change. However, zoning is one of the few areas of government where the rights of the minority are truly valued.
That being stated, I would like to point out other reasons to oppose this change.
As a local Planning Board member we were faced with a builder's zoning proposal. It came in as a petition for a Special Town Meeting Agenda. The petition sought to undo a zoning change adopted with little opposition at a well attended Annual Town Meeting. Traditionally the town places zoning articles and petitions at the end of the agenda. As anyone knows, Special Town Meetings are not well attended, can be dominated by special interests, and many do not stay for the end of these meetings. The builders ensured they had enough people present to ensure a quorum. The special interest article barely missed the two-thirds vote, there-by preserving the real will of the town.
Had the proposal before us in the Land Use Partnership Act been in place, the real will of the town would have been undone.
Now lets think about this change in relation to the other proposed changes, in particular the vesting discussion I put forward earlier.
A special interest puts forward a zoning proposal geared to promote the interests of a few. A proposal that may not be consistent with local planning objectives. The Planning Board recommends against the zoning change. The special interest ensures a large turnout of its interests at a Special Town Meeting and wins by a vote of 50% plus one. The proposed change in the law will allow such a proposal to become a valid zoning by-law.
A certified plan community may be protected by such a zoning change in that the proposal will need to be certified as compatible with the certified plan by the regional planning agency (not that I feel regional planning agency control of this type is desirable). Hopefully this will ensure that certified plan towns can fend off such a proposal.
Non-certified plan towns will not have a regional planning agency reviewing and approving its zoning proposals. Leaving them far more vulnerable from this change than certified plan communities.
To me, I see this part of the proposed changes to the Zoning Act as responding to the interests of some special groups, and not to the needs of the citizens of the Commonwealth. It provides a second reason to oppose this "Land Use Partnership" proposal.
Monday, December 29, 2008
Sunday, December 28, 2008
Personal Thoughts on the Land Use Partnership Act – Part 1 Changes Affecting a Community Without a Certified Plan: Vesting
The state has distributed a proposed legislative initiative to revamp planning. While its goals are laudable, there seems to be a number of pitfalls. Planners and residents of Massachusetts need to carefully consider this legislative initiative, and make sure that their legislators know what they think of this proposal. In the next series of posts I will look at particular portions of this proposal, and point out my concerns with the changes.
I am going to split out the discussion into various parts to give each level of the proposal adequate attention. I am further splitting my thoughts to focus on the changes that affect all of us, essentially changes that affect towns that do not seek to create a certified plan. I will follow this later with comments on the portion of the proposal that will affect only those seeking to have a certified plan. Some aspects of the proposal will be repeated in the different discussions, as they affect a number of actions.
This first post will discuss the concept of vesting as it affects everyone immediately, and will continue to affect those without certified plans.
Currently, projects gain vesting rights in three fashions, these are:
* Filing an Approval Not Required Plan, which protects use for a period of three years;
* Granting of a Special Permit, which protects a project that has already been permitted as long as the permit remain valid.
The proposal will change all of this, Chapter 40A Section 6 will be changed. To fully understand the level of the changes, you actually have to start with changes to be made later in the proposal, fifth paragraph taken before the second paragraph.
The proposed changes to the fifth paragraph establish:
Replace the fifth paragraph of Section 6 of Chapter 40A with the following:
Subject to the transition rules set forth below, within a municipality that is not a certified plan community, if a declaration of development intent is submitted to a planning board, and written notice of such submission has been given to the city or town clerk, the development described in such declaration shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of such declaration, for a vesting period that ends eight years from the date of such written notice of submission; provided that: (i) the development described in such declaration shall be subject to subsequent amendment of the zoning ordinance or by-law, if the first notice thereof was posted prior to such written notice of submission, and (ii) the development described in such declaration shall be subject to subsequent amendment of the zoning ordinance or by-law, unless a definitive plan, or a preliminary plan followed within seven months by a definitive plan, is submitted to a planning board for approval under the subdivision control law prior to such amendment, and, if such definitive plan or an amendment thereof is thereafter finally approved. The length of such vesting period shall be extended by a period equal to the time which a city or town imposes or has imposed upon it by a state, a federal agency or a court, a moratorium on construction, the issuance of permits or utility connections. The provisions of this paragraph shall not apply to development substantially different in use or substantially greater in extent from the development described in the declaration of development intent.
The first significant change is the submittal “declaration of development intent.” As written, the “declaration of development intent” institutes the initiation of a zoning freeze for any project. The “Declaration of Development Intent” is defined as follows:
“Declaration of development intent” shall mean a written notice that describes the land on which proposed development will be located, states whether the proposed development is residential, commercial/industrial or institutional, and sets forth the total gross square footage of proposed buildings (or the number of proposed housing units, in the case of residential development).
This declaration would appear to be as simple as submitting a letter stating that a property owner intends to develop a piece of property in a particular fashion – say a 30,000 sf retail building on an acre lot. This initiates a zoning freeze on the parcel of land. This protection will extend for eight years. The major change in this, is that it provides a level of protection that is not available today for most non-residential projects. In particular for commercial uses a single lot ANR would protect commercial use, but does not protect it from other zoning changes such as setback, lot coverage, drainage, parking or landscaping requirements. Otherwise any level of vesting protection for a commercial property requires the issuance of a Special Permit. A definitive plan, provides an eight year protection for commercial and residential uses, so there is no change in the instance of vesting under definitive plans.
The section does mix up the concept of Special Permit and subdivision plans. The “declaration of development intent” provides for both commercial developments and subdivisions. The Section 6 changes above start with this level of protection, but quickly forgets that some declarations will be for existing lots which do not require subdivision, and focuses only on the subdivision process and protections for subdivision plans. However, this is minor in comparison to the other issues.
This particular change will also extend the vesting period by a few other permitting items. While some of these are currently provided for (appeals of decisions, moratorias) some are not (issuance of other permits such as wetlands or curb cuts). These can provide for fairly significant extensions, especially given their timing could be completely up to the applicant. For instance, the application for a curb cut permit for a project could be delayed if economic conditions change make immediate pursuit of a project uneconomic. The provisions of this section does not have any stated time limits. Given the importance of time limits in this document, one would clearly have to be concerned that the court would find that the lack of a time limit in this section would be considered deliberate, and the court could quite likely not impose such a limit.
Now, we move back to the paragraph 2 changes:
The second paragraph of Section 6 of Chapter 40A is hereby amended to provide as follows:
A zoning ordinance or by-law shall provide that construction or operations under a building permit shall conform to any subsequent amendment of the ordinance or by-law unless the use or construction is commenced within a period of not more than six months after the issuance of the permit and in cases involving construction, unless such construction is continued through to completion as continuously and expeditiously as is reasonable. Construction or operations under a special permit or site plan approval shall conform to any subsequent amendment of the zoning ordinance or by-law or of any other local land use regulations unless the use or construction is commenced within a period of two years after the issuance of the permit and in cases involving construction, unless such construction is continued through to completion as continuously and expeditiously as is reasonable. For the purpose of the prior sentence, construction involving the redevelopment of previously disturbed land shall be deemed to have commenced upon substantial investment in site preparation and/or infrastructure construction, and construction of development intended to proceed in phases shall proceed expeditiously, but not continuously, among phases.
This section has contradictory sections as well. First is a provision that allows a project that is issued a building permit must comply with zoning changes if the construction contemplated under the Special Permit is not commenced within six months (this contradicts the vesting provisions for a “declaration of development intent” previously discussed). Special Permit provisions are drastically changed in this section. Currently under Chapter 40A Section 6 Special Permits are limited to a maximum of two years. Under this proposal, Special Permits must be issued for a minimum of two years.
Conclusions
Specific to this discussion, the changes contemplated will be particularly punitive for communities that do not seek a certified plan, or do not have the means of meeting such a certification. Vesting rights will be increased dramatically over existing standards. Proposals will be able to gain vesting rights for far more simplistic approaches than previous required. And permits will be required to be issued for longer time periods, not allowing a community to reconsider a particular project if it does not move forward in a timely fashion.
Unfortunately, there is another twist, which I will discuss in the next post on this issue, and that deals with to what zoning standards may a project be vested – the proposal changes the adoption process for zoning amendments from a two-thirds vote, to a majority vote at town meeting. In my own opinion this will allow for a particular interest to petition a zoning change in a non-certified plan community, stack town meeting, accomplish a zoning change, vest an otherwise undesirable use of a site, and totally circumvent any public rights in the land use decision-making process.
Friday, December 26, 2008
To Reform or Not to Reform - Zoning That Is
I have been following an issue in the State of New Hampshire. It involves a car dealership, a wall that was constructed and whether that wall constitutes a sign. You can read about it at the following locations:
Portsmouth car dealership's lights at center of zoning flap
Neighbors angry over 'monster' Toyota sign
Sign dispute: Toyota fights appeal
Judge denies abutters' appeal in Route 1 dealership light dispute
Judge: Toyota neighbors' appeal too late
It seems that the car dealership constructed a new "wall" which meets most people's definition of a sign. It took several months for the construction to be undertaken and for the abutters to learn about the nature of the "wall" or "sign."
New Hampshire is often thought of as having fairly decent zoning standards. They adopted the standard zoning enabling act and has tinkered with it only occasionally. Many who have looked at reforming the Massachusetts Zoning Act (which needs significant improvements) have looked at states like New Hampshire for ideas.
This particular case, however, illustrates one of the pitfalls of taking a chainsaw where a scalpel is probably a better choice. In New Hampshire, neighbors have only 30 days from the date of the issuance of a building permit to seek enforcement of an alleged zoning violation. As the case illustrates, the abutters really did not learn of the violation for nearly 236 days, when the "wall" was illuminated. The judge in the case ruled that they were too late to seek enforcement and dismissed their challenge to the sign and the zoning violation.
As the attorney for the abutters argues, abutters have no way, unless they review every building permit issued by the building department, to know if there is a zoning violation being created in their neighborhood. In Massachusetts, our Zoning Act and subsequent court cases have recognized that 30 days is hardly appropriate. While a Building Permit on its face can only be challenged within 30 days, an abutter can seek enforcement of a zoning violation for up to seven additional years. As the New Hampshire example illustrates, this time period for seeking zoning enforcement is clearly important.
For several years a number of my colleagues have been working diligently to modify the zoning act. Their efforts should be applauded. However, perhaps we should be focusing on scalpel type improvements. Find a small part that needs to be fixed and push for legislation to fix that part.
During the same time period that the Zoning Reform Working Group and others have to over haul zoning, others have successfully made changes to gut parts of the zoning act. I am not talking about Chapter 40B type issues either.
Back several years ago the Town of Concord successfully enforced zoning against a farm store which was selling predominantly products that were not grown on the farm. The judges in the case, ultimately all the way up to the highest appellate levels, supported the town. They determined that the farm store became a general retail operation when greater than half of its sales were from products not produced on the farm. Since the store was in a residential zoning district, the store had to change its operation to comply with zoning and the exemption allowed for agricultural uses. Subsequent to this court case, special interests pushed the legislature to redefine the accessory nature of a farm store. Now, Chapter 40A Section 3 exempts "farm stores" from zoning protection as long as 25% of the products sold come from the farm. Essentially introducing commercial retail enterprises, and the automobile and truck traffic associated with these sites, into residential neighborhoods.
This is just one example of legislators making significant changes to the Zoning Act with little town town officials, and even less input from residents who might be impacted by their actions.
With all the effort that has gone into Zoning Reform, we have no ability to ensure that all the good will go unchanged. Personally, I believe that we need to start by protecting what we have. Change may be desirable, but could you imagine having a zoning appeals process such as the one discussed in these Portsmouth NH stories?
Portsmouth car dealership's lights at center of zoning flap
Neighbors angry over 'monster' Toyota sign
Sign dispute: Toyota fights appeal
Judge denies abutters' appeal in Route 1 dealership light dispute
Judge: Toyota neighbors' appeal too late
It seems that the car dealership constructed a new "wall" which meets most people's definition of a sign. It took several months for the construction to be undertaken and for the abutters to learn about the nature of the "wall" or "sign."
New Hampshire is often thought of as having fairly decent zoning standards. They adopted the standard zoning enabling act and has tinkered with it only occasionally. Many who have looked at reforming the Massachusetts Zoning Act (which needs significant improvements) have looked at states like New Hampshire for ideas.
This particular case, however, illustrates one of the pitfalls of taking a chainsaw where a scalpel is probably a better choice. In New Hampshire, neighbors have only 30 days from the date of the issuance of a building permit to seek enforcement of an alleged zoning violation. As the case illustrates, the abutters really did not learn of the violation for nearly 236 days, when the "wall" was illuminated. The judge in the case ruled that they were too late to seek enforcement and dismissed their challenge to the sign and the zoning violation.
As the attorney for the abutters argues, abutters have no way, unless they review every building permit issued by the building department, to know if there is a zoning violation being created in their neighborhood. In Massachusetts, our Zoning Act and subsequent court cases have recognized that 30 days is hardly appropriate. While a Building Permit on its face can only be challenged within 30 days, an abutter can seek enforcement of a zoning violation for up to seven additional years. As the New Hampshire example illustrates, this time period for seeking zoning enforcement is clearly important.
For several years a number of my colleagues have been working diligently to modify the zoning act. Their efforts should be applauded. However, perhaps we should be focusing on scalpel type improvements. Find a small part that needs to be fixed and push for legislation to fix that part.
During the same time period that the Zoning Reform Working Group and others have to over haul zoning, others have successfully made changes to gut parts of the zoning act. I am not talking about Chapter 40B type issues either.
Back several years ago the Town of Concord successfully enforced zoning against a farm store which was selling predominantly products that were not grown on the farm. The judges in the case, ultimately all the way up to the highest appellate levels, supported the town. They determined that the farm store became a general retail operation when greater than half of its sales were from products not produced on the farm. Since the store was in a residential zoning district, the store had to change its operation to comply with zoning and the exemption allowed for agricultural uses. Subsequent to this court case, special interests pushed the legislature to redefine the accessory nature of a farm store. Now, Chapter 40A Section 3 exempts "farm stores" from zoning protection as long as 25% of the products sold come from the farm. Essentially introducing commercial retail enterprises, and the automobile and truck traffic associated with these sites, into residential neighborhoods.
This is just one example of legislators making significant changes to the Zoning Act with little town town officials, and even less input from residents who might be impacted by their actions.
With all the effort that has gone into Zoning Reform, we have no ability to ensure that all the good will go unchanged. Personally, I believe that we need to start by protecting what we have. Change may be desirable, but could you imagine having a zoning appeals process such as the one discussed in these Portsmouth NH stories?
Wednesday, December 24, 2008
What Constitutes A "Place"?
We had an interesting discussion on the Massplanners listserve this past week, well actually a couple that could lead to blog discussions, but one in particular that ties into much I have been wrestling with lately. This being the idea of what makes a "location" a "place."
To some the discussion may have seemed way off the beaten path of planning. It was a discussion full of reminiscing about the "Happy Valley" where many of the planners in the state have ties. The discussion was about things we remembered, places we worked, went to school and just basically hung out. What makes this an interesting planning discussion? And, how does this tie into a discussion of what constitutes a place?
Well, basically, the things we remember about an area, are the things that keep bringing us back to that location. The more of these locations, the stronger the attachment, and the more likely people are to return to those places, and encourage others to visit that area.
We have been discussing the concept of great places in Dennis as we begin the update of our Local Comprehensive Plan. We are looking at the Project for Public Spaces Power of Ten, as it relates to the town. You can read about these places on the Dennis Economic Development Blog here, here, here and here. From the villages we will explore the other special places in Dennis, the beaches, open space areas etc.
Now how does this tie into the Massplanners discussion? Well the discussion covered the special places and events in the valley. From the first snow snowball fight in Amherst Center, to places to find good pizza and friends. The discussion identified public places that many were able to connect with. Public places, that new generations are continuing to take advantage of. It shows a community, a greater community than a village or town, but still a large communal area that many different people connected with.
Now, as we look towards the future of Cape Cod, one would have to step back and wonder, does the Cape have those things that a twenty or thirty something would have equally fond memories of? The recent articles in the Cape Cod Times would argue that we do not. How do we plan for a future that demands the same loyalties for an area, that was shown in the discussion we had this week? How do we make more areas fondly remembered?
See, some may have thought the discussion got "off-topic" but in reality, it helped formulate questions we are probably all dealing with.
To some the discussion may have seemed way off the beaten path of planning. It was a discussion full of reminiscing about the "Happy Valley" where many of the planners in the state have ties. The discussion was about things we remembered, places we worked, went to school and just basically hung out. What makes this an interesting planning discussion? And, how does this tie into a discussion of what constitutes a place?
Well, basically, the things we remember about an area, are the things that keep bringing us back to that location. The more of these locations, the stronger the attachment, and the more likely people are to return to those places, and encourage others to visit that area.
We have been discussing the concept of great places in Dennis as we begin the update of our Local Comprehensive Plan. We are looking at the Project for Public Spaces Power of Ten, as it relates to the town. You can read about these places on the Dennis Economic Development Blog here, here, here and here. From the villages we will explore the other special places in Dennis, the beaches, open space areas etc.
Now how does this tie into the Massplanners discussion? Well the discussion covered the special places and events in the valley. From the first snow snowball fight in Amherst Center, to places to find good pizza and friends. The discussion identified public places that many were able to connect with. Public places, that new generations are continuing to take advantage of. It shows a community, a greater community than a village or town, but still a large communal area that many different people connected with.
Now, as we look towards the future of Cape Cod, one would have to step back and wonder, does the Cape have those things that a twenty or thirty something would have equally fond memories of? The recent articles in the Cape Cod Times would argue that we do not. How do we plan for a future that demands the same loyalties for an area, that was shown in the discussion we had this week? How do we make more areas fondly remembered?
See, some may have thought the discussion got "off-topic" but in reality, it helped formulate questions we are probably all dealing with.
Sunday, December 21, 2008
Town Land Use Patterns and Public Health
I have started the new APA on-line course on Planning for Healthy Places and Health Impact Assessments, and stumbled upon two articles on the Massachusetts Municipal Association Web-site, Cambridge and Boston Ranked Among the Best For Walking and Forum Examines Planning and Public Health which got me to thinking, just how healthy is the typical suburban and rural land use pattern?
Let's think about this, most towns have large lot, single family zoning. Typical lot sizes are 40,000 sf. Typical frontage requirements are 200 sf. Even if we require sidewalks in these subdivisions, where would you walk to? Walking six doors down, and you've walked a quarter mile. While we might be providing a pleasant walk, that's all it really is, it takes you nowhere, you cannot meet any of your daily needs - like walk for a loaf of bread or gallon of milk.
Most towns also continue to have most of their zoning set up as single use zones, even where mixed uses are allowed, they make up a minority of the land area in a community. Mixing residential and commercial uses really remains the anomoly.
Our commercial zones also require buildings to have large zoning setbacks, setbacks which encourage parking to be located between any adjacent sidewalks and the retail use. This pattern encourages the use of a car, and discourages walking. Even in areas where we may have a business cluster, several buildings as part of one development area (South Shore Plaza in Braintree or Shoppers World in Framingham for instance) moving around is easier by car than by foot.
We clearly need to rethink our development requirements. We need to move houses closer together. We need to move houses closer to commercial uses. We need to move the commercial uses closer to the streets. Force sidewalk oriented entrances for commercial buildings. Move parking to beside or behind buildings.
This is going to be a huge challenge. The recent gasoline spike has started to interest some in finding ways to improve mobility. Perhaps, it is time to start pushing land use standards that promote energy efficient use of land.
Let's think about this, most towns have large lot, single family zoning. Typical lot sizes are 40,000 sf. Typical frontage requirements are 200 sf. Even if we require sidewalks in these subdivisions, where would you walk to? Walking six doors down, and you've walked a quarter mile. While we might be providing a pleasant walk, that's all it really is, it takes you nowhere, you cannot meet any of your daily needs - like walk for a loaf of bread or gallon of milk.
Most towns also continue to have most of their zoning set up as single use zones, even where mixed uses are allowed, they make up a minority of the land area in a community. Mixing residential and commercial uses really remains the anomoly.
Our commercial zones also require buildings to have large zoning setbacks, setbacks which encourage parking to be located between any adjacent sidewalks and the retail use. This pattern encourages the use of a car, and discourages walking. Even in areas where we may have a business cluster, several buildings as part of one development area (South Shore Plaza in Braintree or Shoppers World in Framingham for instance) moving around is easier by car than by foot.
We clearly need to rethink our development requirements. We need to move houses closer together. We need to move houses closer to commercial uses. We need to move the commercial uses closer to the streets. Force sidewalk oriented entrances for commercial buildings. Move parking to beside or behind buildings.
This is going to be a huge challenge. The recent gasoline spike has started to interest some in finding ways to improve mobility. Perhaps, it is time to start pushing land use standards that promote energy efficient use of land.
Saturday, December 20, 2008
More on Who's Plan Is It
Following up on the last post, I found the following news story particularly telling, Town Meeting Will Consider Growth Management Plans. It seems that in 1996 the Town of Sandwich forwarded a plan to the Cape Cod Commission for a consistency finding. The Commission rejected the plan. The town did not adopt the 1996 plan, and took 12 more years to complete a revised plan. The question is, is this new plan really the town's own vision? Or is it a plan the town feels will meet with reional approval?
One has to wonder, it a town takes several years, and many, many hours of volunteer and town staff time to craft a local vision. Then goes through a variety of public hearings, why must it be held to the standards of another entity?
The 1996 Sandwich Plan met Massachusetts Chapter 41 Section 81D requirements. I served on the Sandwich Planning Board, which doubled as the Local Planning Committee in the late 1990's after the plan was rejected by the Commission. The plan addressed all the usual requirements. It had recommendations, some of which had already been put into action, for affordable housing, open space protection, water supply protection, solid waste, waste water management and economic development. The 1996 Plan did not meet the Minimum Performance Standards set in the Regional Policy Plan. The Planning Board was disheartened. Several members stepped down. The new Board members were frustrated. The efforts dragged on, and ultimately lagged as other issues - updated open space plan, creation of an affordable housing plan, etc. took priority.
I applaud the town for completion of a plan. I hope it is truly the town's vision. I hope that, if it is the town's vision, the town will adopt the plan regardless of Cape Cod Commission endorsement.
One has to wonder, it a town takes several years, and many, many hours of volunteer and town staff time to craft a local vision. Then goes through a variety of public hearings, why must it be held to the standards of another entity?
The 1996 Sandwich Plan met Massachusetts Chapter 41 Section 81D requirements. I served on the Sandwich Planning Board, which doubled as the Local Planning Committee in the late 1990's after the plan was rejected by the Commission. The plan addressed all the usual requirements. It had recommendations, some of which had already been put into action, for affordable housing, open space protection, water supply protection, solid waste, waste water management and economic development. The 1996 Plan did not meet the Minimum Performance Standards set in the Regional Policy Plan. The Planning Board was disheartened. Several members stepped down. The new Board members were frustrated. The efforts dragged on, and ultimately lagged as other issues - updated open space plan, creation of an affordable housing plan, etc. took priority.
I applaud the town for completion of a plan. I hope it is truly the town's vision. I hope that, if it is the town's vision, the town will adopt the plan regardless of Cape Cod Commission endorsement.
Saturday, December 13, 2008
Town Master Planning -Who's Plan Is It?
I live and work in an area where master plans are supposed to be consistent with a regional plan.
Now, the state of Massachusetts is stepping forward, and in the name of Land Use Reform, is attempting to also establish standards for local master plans.
In the regional vision, small is beautiful. In the state vision, small is anti-business.
So what is a town planner to do?
At the regional level there is a requirement that any residential project of more than 30 units of housing must undergo a very stringent, and costly, regional review. At the state level the belief is that any area that does not allow densities of up to 12 housing units to an acre is exclusionary and is not meeting its share of housing demand.
At the regional level there is a requirement that any commercial project of 10,000 sf must undergo a stringent, and costly, regional review. At the state level there is a belief that local regulations are too costly, time consuming and is defeating the state's economic interests.
To combat what the state believes is an anti-housing and anti-business attitude, the state has adopted several regulatory relief measures to "streamline" development approval. Some of these even have carrots attached. Carrots that are unavailable to the area I am located as to get the development the state believes is desirable will trigger automatic regional regulatory review.
As I watch other communities venture into their local planning, I see many of them worrying about consistency with the conflicting requirements. As I watch, I cannot help but sit back and wonder, why? Really, WHY must a local plan, or town planning for that matter, be crafted in a fashion that provides consistency with measures established by entities above the local level? Especially for issues that are clearly local issues?
I believe that meeting the basic requirements for a local plan is important. These requirements, found in state statutes, such as Chapter 41 Section 81D in Massachusetts provide the basis of what must be studied in a local plan. Additional forces saying that housing projects with more than 15 units, or commercial project larger than 7,500 sf are bad and must be regulated to death; or, conversely, that one acre zoning and commercial special permit approval is bad and must be prohibited, just don't fit into the planning picture. Planning should not prejudge in the fashion that these entities believe must be part of the LOCAL PLAN.
And that really is what it is, the LOCAL PLAN. I know regional consistency requirements have been around for years. Florida started the process and it has spread to most corners of the country. Perhaps, it is time to re-think this regional consistency requirement. Or, at a minimum, establish standards for regional requirements, to ensure that these regional requirements do not tread all over local sovereignty.
I truly believe that LOCAL MASTER PLANS, must be LOCAL PLANS. Bottom up, start to finish. A plan by and for the residents of a community. Not a plan that starts out simply to meet the regional or state priority of the day.
Now, the state of Massachusetts is stepping forward, and in the name of Land Use Reform, is attempting to also establish standards for local master plans.
In the regional vision, small is beautiful. In the state vision, small is anti-business.
So what is a town planner to do?
At the regional level there is a requirement that any residential project of more than 30 units of housing must undergo a very stringent, and costly, regional review. At the state level the belief is that any area that does not allow densities of up to 12 housing units to an acre is exclusionary and is not meeting its share of housing demand.
At the regional level there is a requirement that any commercial project of 10,000 sf must undergo a stringent, and costly, regional review. At the state level there is a belief that local regulations are too costly, time consuming and is defeating the state's economic interests.
To combat what the state believes is an anti-housing and anti-business attitude, the state has adopted several regulatory relief measures to "streamline" development approval. Some of these even have carrots attached. Carrots that are unavailable to the area I am located as to get the development the state believes is desirable will trigger automatic regional regulatory review.
As I watch other communities venture into their local planning, I see many of them worrying about consistency with the conflicting requirements. As I watch, I cannot help but sit back and wonder, why? Really, WHY must a local plan, or town planning for that matter, be crafted in a fashion that provides consistency with measures established by entities above the local level? Especially for issues that are clearly local issues?
I believe that meeting the basic requirements for a local plan is important. These requirements, found in state statutes, such as Chapter 41 Section 81D in Massachusetts provide the basis of what must be studied in a local plan. Additional forces saying that housing projects with more than 15 units, or commercial project larger than 7,500 sf are bad and must be regulated to death; or, conversely, that one acre zoning and commercial special permit approval is bad and must be prohibited, just don't fit into the planning picture. Planning should not prejudge in the fashion that these entities believe must be part of the LOCAL PLAN.
And that really is what it is, the LOCAL PLAN. I know regional consistency requirements have been around for years. Florida started the process and it has spread to most corners of the country. Perhaps, it is time to re-think this regional consistency requirement. Or, at a minimum, establish standards for regional requirements, to ensure that these regional requirements do not tread all over local sovereignty.
I truly believe that LOCAL MASTER PLANS, must be LOCAL PLANS. Bottom up, start to finish. A plan by and for the residents of a community. Not a plan that starts out simply to meet the regional or state priority of the day.
Wednesday, December 3, 2008
Of Green Roofs, Reflective Roofs and Traditional Roofs
I was at a public hearing recently where one of the most "heated" topics of discussion was the value of green or reflective roofs to energy conservation in building design. Unfortunately it seemed that both sides of the discussion lost one critical aspect of the argument.
The builders representative was quite adament that he could meet energy star compliance for a building using traditional materials and an increased amount of insulation to ensure that winter heating and summer air conditioning did not escape. He argued that green roofs increased the structural requirements for a building dramatically, but never really addressed reflective roofs.
The proponent for the green and reflective roofs noted how these features would provide their own benefits for reduction of internal energy consumption, but ultimately agreed that similar internal savings could be achieved with increased insulation.
Lost in the entire discussion, and I mean never raised at all, was the benefit of the green or reflective roofs on the environment as a whole. The missing discussion was on the concept of urban heat islands. It is a well recognized concept that black asphalt raises temperatures on hot sunny days (on cold winter days as well given ice will melt on asphalt on sunny days when it is below freezing). Black asphalt shingles or other asphalt roofing materials will do the same. Exactly how many degrees may be debatable, but I have seen figures that these urban heat islands could raise temperatures by as much as ten degrees. US EPA suggests about a five degree daytime and twenty-two degree evening temperature diferential. The following illustration from the EPA provides a dramatic picture of this temperature impact of heat islands:
The builders representative was quite adament that he could meet energy star compliance for a building using traditional materials and an increased amount of insulation to ensure that winter heating and summer air conditioning did not escape. He argued that green roofs increased the structural requirements for a building dramatically, but never really addressed reflective roofs.
The proponent for the green and reflective roofs noted how these features would provide their own benefits for reduction of internal energy consumption, but ultimately agreed that similar internal savings could be achieved with increased insulation.
Lost in the entire discussion, and I mean never raised at all, was the benefit of the green or reflective roofs on the environment as a whole. The missing discussion was on the concept of urban heat islands. It is a well recognized concept that black asphalt raises temperatures on hot sunny days (on cold winter days as well given ice will melt on asphalt on sunny days when it is below freezing). Black asphalt shingles or other asphalt roofing materials will do the same. Exactly how many degrees may be debatable, but I have seen figures that these urban heat islands could raise temperatures by as much as ten degrees. US EPA suggests about a five degree daytime and twenty-two degree evening temperature diferential. The following illustration from the EPA provides a dramatic picture of this temperature impact of heat islands:
Black surface trap and absorb heat, when the sun goes down, these surfaces are very slow in releasing heat. A US EPA report illustrated that the temperatures for heat islands are at their highest towards their centers and tapers off towards the outer edges where trees and other landscape changes may occur. The largest differential in temperatures, center of heat island to edges or adjacent rural areas, occurred about four hours after sunset.
If we take this concept to site design, we usually find most suburban plazas and malls with large masses of parking, often surrounding the building. The building is thus cast as the center of the heat island. The building can be constructed for maximum energy efficiency (protecting against loss or heat or cooling) but if the site is not designed and constructed for maximum energy efficiency, the heat island that is created will be increasing the overall energy use of the property.
Look back at the original discussion about roofing materials. Black absorbent roofing materials are reported by the EPA as being up to ninety degrees higher than the surrounding air temperatures during the daytime. The green and reflective roofs are intended to reduce heat absorption, and could therefor reduce ambient day and night temperatures. This will reduce the heat island effect of the site, and thereby reduce the energy consumption. These constructions standards can, and should, be matched with increased efficiency in the insulation, providing a double benefit.
Heat islands, and therefor the green roof concept is important to consider in that higher ambient air temperatures increase energy needs; thus creating more air pollution (from the need to generate more electricity; higher levels of ground level ozone (caused by the chemical reaction that takes place in these higher temperatures); greater health issues related to both the heat and the air pollution levels; and water quality issues as run-off temperatures, and ultimately the water bodies to which the run-off is directed, have higher temperatures. These results clearly illustrate issues, beyond simply ensuring the energy efficiency of a building, that argue for the use of alternative roofing materials. This is so even when greater insulation may be able to protect the building itself from the surrounding heat.
Unfortunately not all states provide planners with the tools to intervene in building decisions. In Massachusetts planners are specifically precluded from making any requirements that step into the areas covered by the state building code. That places us at a disadvantage for directly influencing some building decisions. I am almost certain if we were to place a requirement in zoning that only reflective roofs were used in commercial projects, the requirement would be overturned as outside of our jurisdiction. We would be making the right choice, we just do not have the tools available to us. We will just have to look at the issue and find ways to back door these standards.
Monday, December 1, 2008
Chapter 40B - To Repeal or Not To Repeal
I want to start out simply stating I am a big supporter of affordable housing. I believe that the need for truly affordable housing far exceeds the goals established in Massachusetts Chapter 40B. That being said, I think the affordable housing production process needs a massive overhaul.
The problems with Chapter 40B are many. For starters, the one size fits all approach to affordable housing, 10% everywhere, hardly reflects any attempt to measure actual need. Think about it, the Town of Alford, with 173 housing units having to meet the same production goals as the City of Worcester, 70,408 housing units. Sure producing 17 housing units would seem to be far easier than producing 7,041. However, a town like Alford lacks jobs, public transportation, or any potential for compact mixed use development. However, if a developer came along seeking to overrule the town's zoning to provide housing at a denser level than is currently allowed (2 acres per residential unit) the town would be left totally defenseless. In fact, at the 25% affordability requirement for a for sale Chapter 40B project, Alford would have to construct 116 housing units to meet the Chapter 40B target. The result would be a town that is 67% larger than today - looking at it by the average number of people, the town would increase by 267 people. It is easy for people to say "Ten percent is a small amount of overall housing..." but the impacts can actually be quite dramatic.
Another issue I have with Chapter 40B involves the implementation of the process through a process that is a moving target. Recently the City of Woburn won a significant court case on relative to placing conditions on an affordable housing project it approves under Chapter 40B. In the case, Board of Appeals of Woburn v. Housing Appeals Committee, 451 Mass. 581 (2008) the court ruled that the developer had failed to prove the conditions placed on the project by the city was uneconomic. Unfortunately, shortly after this ruling the Housing Appeals Committee essentially provided an end run to this court decision by establishing that a community essentially needs to prove that a change in a project size does not render a project uneconomic, thereby shifting the burden of proof from the applicant to the town.
Also, if Chapter 40B is intended to provide affordable housing, why are towns precluded from requiring higher levels of affordability than the state minimums? This type of restriction increases the total build-out required for a town to achieve the mandate. The net result is large increases in market rate housing for little gain in affordability.
So, forty years ago the state felt that a stick was the appropriate method of promoting affordable housing. The stick they chose was one that was different than any of our neighboring states, or, for that matter it would appear, nationally. New Jersey and New Hampshire chose "builder's remedies." In New Hampshire the courts ruled first that local zoning needed to implement the Local Plan, and that the Local Plan needed to address regional housing needs. If it was impossible to build affordable housing, then the town's zoning was at risk of being negated - at least for the property in question. See: Lewis Builders v Atkinson (1984 and 1987) and Britton v. Chester. New Jersey, in the famous Mount Laurel decisions took the same approach. The difference between these two states and Massachusetts is that New Hampshire and New Jersey start from the point of view that, if properly directed, communities will provide zoning to ensure that affordable housing can be built.
In Massachusetts, the purpose of Chapter 40B is to "overcome exclusionary practices." In reality, the statute and implementation procedures provide no recognition for communities with local affordable housing by-laws. The mere presence of such a by-law should lead to a presumption that there are no local exclusionary practices to be overcome. The additional approval of projects under such by-laws should clearly exempt communities from any Chapter 40B proposals - regardless of whether the projects get onto the State Housing Inventory which has become more and more complicated with its own set of moving targets (especially for communities which had adopted local procedures before the state adopted its own procedures).
So, at the end of the day, I do not believe that isolated communities such as Alford or Florida should have stringent 40B mandates. I believe that communities who have affordable housing by-laws on the books should have 40B mandates. I believe that poor communities with naturally depressed housing values should be exempt from 40B mandates. I am clearly on the side of those who feel Chapter 40B needs to be reformed, and I am slowly converting over to the side of those who feel that Chapter 40B should be repealed.
For more information, check out the following websites:
Repeal 40B
Citizens' Housing and Planning
The Facts About 40B
Affordable Housing Now - Helping Massachusetts Recover From Chapter 40B
Municipal Coalition for Affordable Housing
National Low Income Housing Coalition
The Reform 40B Coalition
The problems with Chapter 40B are many. For starters, the one size fits all approach to affordable housing, 10% everywhere, hardly reflects any attempt to measure actual need. Think about it, the Town of Alford, with 173 housing units having to meet the same production goals as the City of Worcester, 70,408 housing units. Sure producing 17 housing units would seem to be far easier than producing 7,041. However, a town like Alford lacks jobs, public transportation, or any potential for compact mixed use development. However, if a developer came along seeking to overrule the town's zoning to provide housing at a denser level than is currently allowed (2 acres per residential unit) the town would be left totally defenseless. In fact, at the 25% affordability requirement for a for sale Chapter 40B project, Alford would have to construct 116 housing units to meet the Chapter 40B target. The result would be a town that is 67% larger than today - looking at it by the average number of people, the town would increase by 267 people. It is easy for people to say "Ten percent is a small amount of overall housing..." but the impacts can actually be quite dramatic.
Another issue I have with Chapter 40B involves the implementation of the process through a process that is a moving target. Recently the City of Woburn won a significant court case on relative to placing conditions on an affordable housing project it approves under Chapter 40B. In the case, Board of Appeals of Woburn v. Housing Appeals Committee, 451 Mass. 581 (2008) the court ruled that the developer had failed to prove the conditions placed on the project by the city was uneconomic. Unfortunately, shortly after this ruling the Housing Appeals Committee essentially provided an end run to this court decision by establishing that a community essentially needs to prove that a change in a project size does not render a project uneconomic, thereby shifting the burden of proof from the applicant to the town.
Also, if Chapter 40B is intended to provide affordable housing, why are towns precluded from requiring higher levels of affordability than the state minimums? This type of restriction increases the total build-out required for a town to achieve the mandate. The net result is large increases in market rate housing for little gain in affordability.
So, forty years ago the state felt that a stick was the appropriate method of promoting affordable housing. The stick they chose was one that was different than any of our neighboring states, or, for that matter it would appear, nationally. New Jersey and New Hampshire chose "builder's remedies." In New Hampshire the courts ruled first that local zoning needed to implement the Local Plan, and that the Local Plan needed to address regional housing needs. If it was impossible to build affordable housing, then the town's zoning was at risk of being negated - at least for the property in question. See: Lewis Builders v Atkinson (1984 and 1987) and Britton v. Chester. New Jersey, in the famous Mount Laurel decisions took the same approach. The difference between these two states and Massachusetts is that New Hampshire and New Jersey start from the point of view that, if properly directed, communities will provide zoning to ensure that affordable housing can be built.
In Massachusetts, the purpose of Chapter 40B is to "overcome exclusionary practices." In reality, the statute and implementation procedures provide no recognition for communities with local affordable housing by-laws. The mere presence of such a by-law should lead to a presumption that there are no local exclusionary practices to be overcome. The additional approval of projects under such by-laws should clearly exempt communities from any Chapter 40B proposals - regardless of whether the projects get onto the State Housing Inventory which has become more and more complicated with its own set of moving targets (especially for communities which had adopted local procedures before the state adopted its own procedures).
So, at the end of the day, I do not believe that isolated communities such as Alford or Florida should have stringent 40B mandates. I believe that communities who have affordable housing by-laws on the books should have 40B mandates. I believe that poor communities with naturally depressed housing values should be exempt from 40B mandates. I am clearly on the side of those who feel Chapter 40B needs to be reformed, and I am slowly converting over to the side of those who feel that Chapter 40B should be repealed.
For more information, check out the following websites:
Repeal 40B
Citizens' Housing and Planning
The Facts About 40B
Affordable Housing Now - Helping Massachusetts Recover From Chapter 40B
Municipal Coalition for Affordable Housing
National Low Income Housing Coalition
The Reform 40B Coalition
Sunday, November 30, 2008
House Shows Are They A Valid Home Occupation
Recently I read an article on Lexis through the APA website about a couple who opened their homes to a broad group of friends on weekends for what were considered house shows. The couple were musicians. On a series of weekends they invited people, for a fee, to visit their home and listen to music. Ostensibly the music was performed by the couple living on the property. As part of the show they also sold CD’s of their music. The couple was shut down as being beyond the definition of a Home Occupation. They attempted to change the business model, no longer requiring payment, but rather hosting pot luck meals with donations requested, and CD’s still for sale. This business model also did not pass muster, they were shut down, taken to court and ultimately lost.
Soon thereafter I saw the following article in the Boston Globe (In the house) which illustrated the concept was far more widespread than I had thought. This got me to thinking, is a house show a valid form of home occupation? Why should it be treated differently than the painter, potter or jeweler who produces art for sale? Especially if we allow the painter, potter or jeweler to have a sales area?
Let’s think about it in the case of the folk singers (the shows listed in the Globe article far exceeds the at home musician). They live in the house. They write and produce their own music. They invite people to their homes/studios to “view” and “purchase” their art. How is this any different to a painter who has a studio and gallery?
Mark Bobrowski recognizes the complications of Home Occupation in his Handbook of Massachusetts Land Use and Planning Law, noting:
A home occupation is a slippery concept subject to a wide interpretation. Many ordinances or by-laws that allow home occupations go on to state specific types of activities that qualify for consideration. Even in these instances, a proposed use not specifically listed may result in a controversy.
Bobrowski points out that, in Seaman v. Zoning Board of Appeals, the court held that a realty office was not a home occupation, while no one would argue that a salesman could use their home to line up sales calls or an engineer could not draw plans from the home. Similarly he notes that while a beauty shop may be a home occupation, a barbershop may not be.
A few years back, there was a similar controversy in the Tampa, Florida area. That particular case involved an internet business. No external changes to draw attention to the business, and all the paid employees lived on the property. The business turned out to be an adult use in a residential zoning district. The town involved shut down the business. However, given the common standards applied to home occupations, no exterior signs of a business being the top one, the question would be whether this use was closer to the real estate office or the salesman.
These distinctions clearly generate the idea that, we as planners, need to clearly consider how we approach home occupations. Determine the limits we want to place on business being carried out in residential zoning districts and determine just how involved we want to be in otherwise invisible businesses.
Your thoughts?
Soon thereafter I saw the following article in the Boston Globe (In the house) which illustrated the concept was far more widespread than I had thought. This got me to thinking, is a house show a valid form of home occupation? Why should it be treated differently than the painter, potter or jeweler who produces art for sale? Especially if we allow the painter, potter or jeweler to have a sales area?
Let’s think about it in the case of the folk singers (the shows listed in the Globe article far exceeds the at home musician). They live in the house. They write and produce their own music. They invite people to their homes/studios to “view” and “purchase” their art. How is this any different to a painter who has a studio and gallery?
Mark Bobrowski recognizes the complications of Home Occupation in his Handbook of Massachusetts Land Use and Planning Law, noting:
A home occupation is a slippery concept subject to a wide interpretation. Many ordinances or by-laws that allow home occupations go on to state specific types of activities that qualify for consideration. Even in these instances, a proposed use not specifically listed may result in a controversy.
Bobrowski points out that, in Seaman v. Zoning Board of Appeals, the court held that a realty office was not a home occupation, while no one would argue that a salesman could use their home to line up sales calls or an engineer could not draw plans from the home. Similarly he notes that while a beauty shop may be a home occupation, a barbershop may not be.
A few years back, there was a similar controversy in the Tampa, Florida area. That particular case involved an internet business. No external changes to draw attention to the business, and all the paid employees lived on the property. The business turned out to be an adult use in a residential zoning district. The town involved shut down the business. However, given the common standards applied to home occupations, no exterior signs of a business being the top one, the question would be whether this use was closer to the real estate office or the salesman.
These distinctions clearly generate the idea that, we as planners, need to clearly consider how we approach home occupations. Determine the limits we want to place on business being carried out in residential zoning districts and determine just how involved we want to be in otherwise invisible businesses.
Your thoughts?
Planning and Open Communication
My first full blog post, and my first opinion. Planners, in general, lack public relations skills and know-how. We shy away from having public personna and tend to feel that having an opinion is a dangerous thing.
We need to rise above this. Explore the advantages of finding and using all technology available to us to spread our message. In my own experience I have found that most employers want us to take leadership roles. To express an opinion and provide guidance to a discussion. We just cannot take it personally when an idea we float gets shot down. That’s all part of life, and part of growing in the field. Without planners challenging communities, we would be stuck back in the days of Euclidean Zoning, single use zones everywhere. Entire concepts like Smart Growth, New Urbanism and Form Based Codes would not exist without forward thinking planners to challenge the communities they serve.
However, we also cannot simply sit in our tiny offices talking amongst ourselves or with our board members. We need to find ways of bringing the message to the public. We cannot continue to rely upon the local media to sell our plans. We need to expand. The planning
world needs to embrace the new technologies, bring planning to where the people are. Podcasts linked to ITunes, blogs such as this one in Blogger, MySpace pages and Facebook all need to be tapped into.
Whether you are a grey-haired planner or a new planner still wet behind the ears, the challenges are out there to advance our profession. Remember our message must reach our target audiences. If nothing else, get our there and blog!
We need to rise above this. Explore the advantages of finding and using all technology available to us to spread our message. In my own experience I have found that most employers want us to take leadership roles. To express an opinion and provide guidance to a discussion. We just cannot take it personally when an idea we float gets shot down. That’s all part of life, and part of growing in the field. Without planners challenging communities, we would be stuck back in the days of Euclidean Zoning, single use zones everywhere. Entire concepts like Smart Growth, New Urbanism and Form Based Codes would not exist without forward thinking planners to challenge the communities they serve.
However, we also cannot simply sit in our tiny offices talking amongst ourselves or with our board members. We need to find ways of bringing the message to the public. We cannot continue to rely upon the local media to sell our plans. We need to expand. The planning
world needs to embrace the new technologies, bring planning to where the people are. Podcasts linked to ITunes, blogs such as this one in Blogger, MySpace pages and Facebook all need to be tapped into.
Whether you are a grey-haired planner or a new planner still wet behind the ears, the challenges are out there to advance our profession. Remember our message must reach our target audiences. If nothing else, get our there and blog!
Hello World
Welcome to my blog. Many who know me, know that I am planner with an opinion on many things. It is my hope that I can share ideas and opinions in this blog with other planners, both professional and citizen planners, as well as non-planners with an interest in the topics reflected in these pages.
The pages will include discussions of issues that strike me as needing exploration, musings about humerous occurances that we all face, opinions and occasionally small gems of information that I stumble upon in various reports or email lists I subscribe to.
I hope you enjoy the blog, provide me with your thoughts and comments and return often to see what I am going on about. The site comments will be moderated, I want this to remain a somewhat professional blog. I will edit profanity, personal attacks etc. to maintain the integrity of this blog.
The pages will include discussions of issues that strike me as needing exploration, musings about humerous occurances that we all face, opinions and occasionally small gems of information that I stumble upon in various reports or email lists I subscribe to.
I hope you enjoy the blog, provide me with your thoughts and comments and return often to see what I am going on about. The site comments will be moderated, I want this to remain a somewhat professional blog. I will edit profanity, personal attacks etc. to maintain the integrity of this blog.
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