The next section of the proposed amendments under the Land Use Partnership Act. Every planner knows that their regulations are only as good as their definitions. That is true with this proposal as well. I have a variety of issues with some of the definition proposals. Some are somewhat basic - placing definitions that should affect zoning into the planning framework, others are more philosophical, and some just seem to take away home rule and the concept that this is still a local comprehensive plan. As with the earlier discussions, I will provide the definition and my reactions - if any. Some of the definitions are rather basic and do not need comments.
“As of right” shall mean that development may proceed under zoning and other local land use regulations without the need for a special permit, variance, amendment, waiver or other discretionary approval. As of right development may be subject to site plan review, as defined in Section 7A of Chapter 40A. If a municipality has issued, at the time of the municipality’s effective date, a special permit that in itself allows new housing units equal to one-half or more of the municipality’s housing target number, and if such special permit remains in effect for at least two years after the municipality’s effective date, then residential development under such special permit which otherwise qualifies hereunder shall also be deemed as of right.
This would seem to be a regulatory definition which would make more sense in the section dealing with definitions for the Zoning Act and not in the comprehensive planning section of this document. One also has to wonder why a special provision in the definition needs to be made for the issuance of a specific special permit for a project that would be equal to the residential development requirement? It also seems a bit odd, in that most housing is developed without the need for a special permit through the subdivision of land, why the issuance of a special needs to be mentioned at all in this definition.
“Certified plan community” shall mean a community for which a community land use plan and implementing regulations have been certified by the applicable regional planning agency, adopted by the municipality, and remain in effect.
On the Cape local plans are reviewed and certified as to whether they are consistent with the Regional Policy Plan. It appears that this approval is being extended to the other regions of the state. It should be made clear, however, that towns can adopt a plan that is not certified by its regional planning agency. The town may not get the special status allowed for under this new statute, however, there are benefits to local planning that far outweigh the ramifications of this act.
“Constructively approved” means deemed approved by the failure of the approving agency to issue a decision or determination within the time prescribed, as it may be extended by written agreement between the applicant and the approving agency; provided that an applicant who seeks approval by reason of the failure of the approving agency to act within such time prescribed, shall so notify the city or town clerk, and parties in interest, in writing within 14 days from the expiration of the time prescribed or extended time, if applicable, of such approval.
Planning is supposed to be a cooperative arrangement, by establishing constructive approval by a regional planning agency, the local/regional planning process could be placed into a hostile arrangement. Constructive approval hardly benefits regional planning consistency and should be eliminated from consideration. If there are town/region issues, lets leave things open for better communication. On the Cape for instance there are a number of communities in disagreement with the Cape Cod Commission on the issue of a Land Use Vision Map and its contents. Various provisions found elsewhere in this document suggests that if these communities do not bow to the Commission's Land Use Vision, then these towns could be denied state discretionary spending. Given at the moment the majority of the communities have not endorsed the Land Use Vision Map, I could anticipate a movement to modify the RPP to remove areas where the towns and the region are not in agreement.
“Economic development district” shall mean a zoning district that: (i) permits or allows commercial and/or industrial use, or permits or allows mixed use including commercial and/or industrial use, and (ii) is an eligible location.
Personally I see this as a zoning definition, even after having read the overall planning framework. There are some references in the planning framework describing how this is to be used, but would still seem to be a Chapter 40A issue.
“Eligible location” shall mean an area that by virtue of its physical and regulatory suitability for development, the adequacy of transportation and other infrastructure and the compatibility of proximate land uses is, in the determination of the regional planning agency, a suitable location for development of the type contemplated by a community land use plan. Any area that would qualify as an “eligible location” under Chapter 40R of the General Laws shall automatically qualify as an “eligible location” for a residential development district.
A few thoughts. As laid out here, "Eligible Location" can include resource protection districts, agricultural preservation districts and other areas that should remain low density. It quite clearly states that the location would be suitable for the development type contemplated by the community. Would this mean, and I am sure it does not, that an agricultural preservation district approved in a certified plan, WOULD NOT be eligible for Chapter 40B consideration? The definition also leaves it open for a community that desires development to have their local planning objectives vetoed by the regional planning agency. As not developing such an area, as may be locally desired, would seem to fall under a state mandate, would the denial of a development district be subject to reimbursement to the community for lost property tax value? While I am sure some would argue we do not need to have a certified plan, which I agree with, the fact that state discretionary spending could be affected by having or not having such a plan, communities are caught in a Catch-22.
“Housing target number” shall mean a number equal to five percent (5%) of the total number of year-round housing units enumerated for the municipality in the latest available United States census[1] as of the date on which the plan was submitted to the regional planning agency.
An innocuous definition by itself. But a rather significant issue when you read the entire planning framework. This "housing target number," in my opinion, is based upon flawed research from several sources that believe that the level of housing construction in Massachusetts is the reason why jobs did not grow as fast in the state over the past decade as they did in other regions. As I have posted earlier in my blog, the Case-Shiller analyses illustrate that the lower level of housing construction has helped the region whether the current financial crisis in the housing market better than other regions - the ones that supposedly had the economic advantage due to building extra housing units. Perhaps the state should look to other states and how they address housing share. In NH, fair share of development has come to be considered that a community is allowing housing growth to occur in percentage to the overall growth of their "region." Often this was their county growth rate, sometimes it was something less than the county if it could be justified. The "Housing Target Number" should be far less precise to fit individual area of the state's needs.
“Implementing regulations” shall mean the local zoning ordinances or by-laws, subdivision rules and regulations, and other local land use regulations, or amendments thereof, necessary to effectuate the minimum standards for consistency with the Commonwealth’s land use objectives established or required by a certified plan.
Here we add in consistency with the state’s land use objectives, which change administration to administration. For instance, Frank Sargent was very preservation oriented, and Ed King was development oriented. This could result in a town being almost complete with its plan under one administration and find it inconsistent with the change in governors.
“Interagency Planning Board” shall mean a board comprised of the secretary of housing and economic development, the secretary of energy and environmental affairs, and the state permit ombudsman, or their designees, together with a representative designated by the Massachusetts Association of Regional Planning Agencies (the “regional representative”) and a representative designated by the Massachusetts Association of Planning Directors (the “municipal representative”). The state permit ombudsman shall serve as the chair of the board. The board, acting without the participation of the regional representative and the municipal representative, shall have the power to promulgate regulations to effect the purposes of this act.
So where do I start. Do I start with the problem of having a "permitting ombudsman" in charge of determining the value of local planning objectives which extend well beyond permitting issues? Do I start with the fact that the concept of improving local and regional planning can occur without the need for the local and regional representatives being at the table? This entire section is horrible and anti-community. This section should be turned on its ear, and establish that NO regulations could be promulgated without local and regional participation. However, even more importantly the person who should be in charge of such a process should be the Director of State Planning - a non-existent position. If an existing state figurehead needed to be in charge it should be the Director of Conservation Resources perhaps, rather than a person charged with aiding development.
“Low impact development techniques” shall mean stormwater management techniques that limit off-site stormwater runoff (both peak and non-peak flows) to levels substantially similar to natural hydrology (or, in the case of a redevelopment site, that reduce such flows from pre-existing conditions), by emphasizing decentralized management practices and the protection of on-site natural features.
Again, sounds like zoning not planning.
“Municipality’s effective date” shall mean the date upon which a municipality has adopted certified implementing regulations pursuant to a certified community land use plan.
No Comment.
“Open space residential design” shall mean a process for the cluster development of land, as that term is defined in Section 9 of Chapter 40A, that in addition: (a) requires identification of the significant natural features of the land and concentrates development, by use of reduced dimensional requirements, in order to preserve those natural features; (b) preserves at least fifty percent of the land’s developable area in a natural, scenic or open condition or in agricultural, farming or forest use; and (c) permits the development of a number of new housing units at least equal to the quotient of the land’s developable area divided by the minimum lot area per housing unit required by the zoning ordinance or by-law. For the purposes of this definition, the land’s developable area shall be determined pursuant to: (i) state land use laws and regulations, and (ii) the zoning ordinance or by-law, without regard in either case to the suitability of soils or groundwater for on-site wastewater disposal.
Again, this would seem to fall under a regulatory purview and should be a zoning definition, not one for guiding the master plan development. The proposal also establishes a method for determining development potential that is not consistent with current standards, on that effectuates a density bonus for choosing cluster development. The formula in (c) does not take into account the land ordinarily taken up by streets and utilities in determining the base number of housing units a tract of land could accommodate. Usually roads and utilities account for about 15% of a tract of land. By not counting this into the initial calculation the tract will be considered to accommodate more units of housing under a cluster than under a traditional development. The formula also does not take into consideration whether the "developable area" is actually accessible to be subdivided. It may be upland, but it may be so narrow that it would not be capable of being placed into individual lots. Unfortunately, the subdivision of land into unbuildable parcels is not unusual. It is why many communities have had to resort to shape factors, to ensure that lots can actually be built upon under zoning.
“Other local land use regulations” shall mean all local legislative, regulatory, or other actions which are more restrictive than state requirements, if any, including subdivision and board of health rules, local wetlands ordinances or by-laws, and other local ordinances, by-laws, codes, and regulations.
This section could, ultimately, create conflicts between planning officials and health or conservation officials. There are several references to these other regulations being impacted by this proposal. While it is important for all of these entities to be coordinated, there seems to be a concerted effort by some entities to attack communities, especially ones which have established stronger wetlands and septic standards than the state minimum standards. The influence of these groups on this legislation is quite clear through-out the document.
“Plan” shall mean a community land use plan prepared by the planning board in accordance with Section 3.
Many other sections reference a plan per Chapter 41 Section 81D. The plan contemplated in this section is clearly and distinctly different from the plan mandated by the current planning act.
“Planning board” shall mean a municipal planning board established or authorized pursuant to Chapter 41, Section 81A of the General Laws.
No Comments.
“Prompt and predictable permitting” shall mean that zoning and other local land use regulations allow development to proceed as of right by means of permitting processes that are designed to result in final decisions on all local permits and approvals in less than 180 days. For commercial and industrial development, local permitting pursuant to Chapter 43D of the General Laws shall also be deemed “prompt and predictable permitting”.
A bit of a jargon problem perhaps? On the one hand we have as of right, covered here, but we also have all permits. Is this intended to be only those that can be built without special permits? Or are we establishing that all Special Permits, Site Plan Reviews, and subdivision approvals must occur within 180 days? If the latter, where is the protection for towns from developers not submitting adequate documents for decisions to be made? The process needs to be cooperative, and this assumes too much that the developer will be cooperative. Also, this seems to be a regulatory issue and not one for a comprehensive planning document. Again, this assumes communities abuse the permitting process. Starting from such an anti-community bias as has been presented though-out this proposed legislation, this is not a surprise. The legislature needs to recognize that this document does not represent the interests of the citizenry of the commonwealth.
“Regional planning agency” shall mean the regional or district planning commission established pursuant to Chapter 40B of the General Laws for the region within which a municipality is located. The term shall also mean the Martha’s Vineyard Commission, as described in Chapter 831 of the Acts of 1977, and the Cape Cod Commission, as described in Chapter 716 of the Acts of 1989, the Franklin Council of Governments, as described in Chapter __ of the Acts of __, and the Northern Middlesex Council of Governments, as described in Chapter __ of the Acts of __.
No Comments.
“Residential development district” shall mean a zoning district that: (i) permits or allows residential use at a density of not less than four (4) units per acre of developable land for single-family residential use and not less than twelve (12) units per acre of developable land for multi-family residential use, or permits or allows mixed use including residential use at such density, (ii) is in an eligible location, and (iii) does not impose other requirements that add unreasonable costs or otherwise unreasonably impair the economic feasibility of residential development at such density. A zoning district that permits or allows mixed use may qualify as both an economic development district and a residential development district, if the standards for both districts are met. The implementing regulations for any residential development district that permits or allows mixed use shall contain adequate provisions to ensure that any contemplated contribution towards the housing target number to be provided by such district will be achieved.
I am not sure what the state is trying to accomplish with this definition. With it, the state is effectively establishing development density. Unfortunately, these densities are not realistic throughout the state. The proposal does not take into account its own septic regulations. At twelve units to an acre, some of the units would not be capable of being occupied under current minimum septic codes. The planning section, to be reviewed later, establishes that communities must have at least one of these districts. There is no consideration given that many communities do not have the infrastructure to accommodate such densities. Given the community cannot impose other requirements that add to the costs (unreasonable according to the groups who have influenced this legislation) the state will need to pass legislation for a significant increase in its spending for water distribution facilities and waste water treatment.
[1] Definition is intended to allow RPAs to rely upon the baseline number for total housing units in DHCD’s subsidized housing inventory.
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