Section 5 of the Land Use Partnership Act starts to get into the true meat of the planning proposal. Section 5 establishes the minimum requirements for planning. In reviewing this section you will find that the minimum planning requirements are a requirement that the towns establish, possibly curtailed, permitting processes. I will provide the individual sections below, followed by my comments. To see the uninterrupted verbiage, go to my previous post which provides a link to the actual legislative proposal.
5) Minimum standards for consistency of plan with the Commonwealth’s land use objectives
A regional planning agency shall determine that a plan is consistent with the Commonwealth’s land use objectives if the plan meets certain minimum standards in the following five areas: economic development, housing, open space protection, water management, and energy management. The minimum standards for consistency shall be set forth in regulations duly promulgated by the Interagency Planning Board. Notwithstanding the foregoing, for plans submitted for certification within the first five years of the effective date of passage of this act, a determination of consistency with the Commonwealth’s land use objectives shall be mandatory if the following minimum standards have been satisfied:
Plans need to address five areas, economic development, housing, open space protection, water management, and energy management. The minimum standards for consistency have not been established, but will be by the Interagency Planning Board. As mentioned earlier, the Interagency Planning Board may act without the participation of the Massachusetts Municipal Association or the Massachusetts Association of Planning Directors. Thus, the "Board" may act to create minimum community standards without any community involvement. The following portion of the document provides some guidance as to what those minimums will be as they govern the first five effective years of the statute.
A. The plan establishes prompt and predictable permitting of commercial and/or industrial development within one or more economic development districts. This standard may be waived or modified upon a determination by the regional planning agency that adequate alternatives for economic development exist elsewhere in the region and are more appropriately located there.
This section obviously is designed to address the economic development requirement. To be consistent with the state mandate the town MUST HAVE at least one commercial or industrial zoning district that meets the state's pre-defined status as an "economic development district." The definition of "Economic Development District" is:
“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.
And "eligible locations" are:
“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.
So, to meet this standard, towns must zone for commercial development, no matter how remote they may be, unless their regional planning agency determines that there are other areas in the region that can accommodate such development.
Starting with the exception, towns on the Cape could be protected from this directive, if the submit a Land Use Vision Map that illustrated no economic centers. Otherwise, the towns will be required to have such a district. The Cape Cod Commission Regional Policy Plan calls for designation of economic centers. However, the planning process to ultimately get these centers established is quite complex. It will be possible to get areas identified, it will be a much larger challenge to get to the permitting process called for under this section.
I must admit, that the fact that the state feels that the communities must establish prompt and predictable permitting processes to be somewhat offensive. Towns are as much in need of economic growth as the state, if not more so. There are few if any communities that are dragging their feet in the permitting process. Far more often towns are left struggling with projects submitted with inadequate information and information applicants feel they can walk into a meeting and not make available for public scrutiny. Perhaps, if this section added in relief to towns, to allow them to determine that an application is not complete, which means that the review clock called for in the permitting process does not begin until an application is deemed complete, would be more beneficial.
B. The plan establishes prompt and predictable permitting of residential development within one or more residential development districts that can collectively accommodate, in the determination of the regional planning agency, a number of new housing units (excluding new housing units which are restricted, through zoning or other legal means, as to the number of bedrooms or as to the age of their residents) equal to the housing target number. For the initial certification of a plan, a municipality’s housing target number shall be reduced by the number of new housing units for which building permits were issued within two years prior to the municipality’s effective date, to the extent such building permits were issued within residential development districts for which there was prompt and predictable permitting at the time of building permit issuance. This standard may be waived or modified upon a determination by the regional planning agency that the lack of adequate water supply and/or wastewater infrastructure within the municipality prevents full compliance with this standard, provided that the municipality may be required to instead participate in any regional housing plan established by the regional planning agency.
Again, the plan must establish a prompt and predictable permitting process. Statements such as this suggests that the plan is a plan for how something gets approved, as opposed to a plan to determine the appropriate land use mix in a community. The plan MUST establish a residential development district. The district established MUST be capable of accommodating the "housing target number. So, what is a "Residential Development District" and what is the "Housing Target Number?"
“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.
“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.
So, to be consistent with the state objectives, towns must have one or more districts that contain land to accommodate a density of at least one-quarter acre lot sizes - actually probably slightly smaller as certain aspects of the directives in this document suggest that the housing density should be considered without concern for infrastructure. These districts are found eligible, based upon infrastructure by the regional planning agency, and the town does not establish unreasonable requirements which would add to cost - one would have to wonder if they would consider site sewers and centralized water systems as being unreasonable for areas without such facilities. These areas must be capable of accommodating the issuance of the town's Housing Target Number (now I do not know of many rural communities or Cape communities that would, or could, designate the entire town as quarter acre zoning so building permits issued outside of the residential development districts will not count towards the housing target). Therefor a town with 8,000 year-round housing units will need to have an area capable of issuing 400 building permits. Given the blanket approach of this proposal, one has to wonder how Somerville, the state's most densely settled city would accommodate the number of housing units they will need to construct?
As an additional catch, towns are not allowed to count age restricted housing against this target number - even if sound planning suggested that the community, like most of those on the Cape, have significantly greater need for 55+ housing than for general housing.
C. The plan requires that, for any zoning district that requires a minimum lot area of forty thousand square feet or more for single-family residential development, development of five or more new housing units utilize open space residential design, except upon a determination that open space residential design is not feasible.
This is how this proposal addresses open space protection, strictly from a development aspect. Mandatory cluster does not always make sense. As previously discussed, the cluster standards established in this proposal is inconsistent with most community cluster provisions, and as crafted provides for a density bonus as density is based upon a useable area provision, as opposed to a physically capable to accommodate standard. The proposal takes a strict stand that large lots are bad. I can see many ways around this, all you need to do is look at many of the cluster's approved around the state. While 50% open space may be provided, the homes are located on scattered lots, to provide the same privacy desires of home owners as a traditional subdivision. As there are no provisions for a community to dictate what the subdivision looks like, this proposal does not provide any greater open space protection than today's zoning act. It also misses the boat on open space planning, at a minimum there should be some relationship between this plan and the Open Space and Recreation Plans required by other laws.
D. The plan requires (through zoning ordinances or by-laws) all development that disturbs more than one acre of land, including as of right development, utilize low impact development techniques.
At first glance one would wonder why anyone would argue with a requirement for low impact development techniques. However, again we need to step back and associate this standard with planning. This is a permitting issue. Zoning should address requiring LID. Planning for "water management" needs to take into consideration far more than simply how we control run-off. The plan needs to address land features, what soils are capable, and which are not, of accommodating development and storm water facilities. Planning needs to go far beyond the simplistic approach provided for in this section.
E. The plan establishes prompt and predictable permitting of (i) renewable or alternative energy generating facilities, (ii) renewable or alternative energy research and development facilities, or (iii) renewable or alternative energy manufacturing facilities, within one or more zoning districts that are eligible locations.
Again, rather than planning for where these facilities are located, the statute first establishes that we need "prompt and predictable permitting." I would argue that the handling of Cape Wind and the Buzzard's Bay proposal both illustrate idea that communities are at fault in the permitting process to be false. These illustrate two projects, beyond local jurisdiction, which have had great difficulty getting through the process. Allowing for these uses, and even directing them to correct locations is important.
As my comments illustrate, this section sets the bar for reviewing what we as local planners must undertake. Much of the standards established herein suggest that communities are not doing what they should. The illustrate standards that attack communities over the zoning standards they have established. While the statute will allow for regional planning agencies to make determinations that the development centers or housing districts are not appropriate for particular communities, realistically can we expect the regional planning agencies to stand up to the state on these issues. Another issue to be considered in this, that is not, is relief from Chapter 40B applications in communities with the appropriate residential development districts.
Ultimately, we are not talking about planning in this document, we are talking about meeting a development industry directive that the third most densely developed state in the country must become even more dense.
[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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