"I have reviewed LUPA a number of times via my work here .... My understanding is that the annual target in LUPA is .5% per year over 10 years year. Your posts reference 1% per year. Did this change or are you referencing a different requirement?"
While Section II of the proposed statute is NOT my primary focus for fixing this legislation, the exchange illustrated the amount of grey area within the proposal. And, as we all know at the local level, grey areas in regulations always take the most anti-community interpretation when they wind up in court.
The issue is, that the questioner's read of the legislation is that a certified plan community must only meet a 0.5% annual growth figure. This is taken from the definition of the "Housing Target Number" in combination with the number of years the plan will be approved for (10 years).
- "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 as of the date on which the plan was submitted to the regional planning agency. "
I get the 1% figure from the restrictions that Section II 7 (b) place on certified plan communities:
- (b) Following the municipality’s effective date, a zoning ordinance or by-law that limits the number of new housing units within residential development districts for which building permits may be issued in any twelve month period to an amount equal to or greater than one-fifth of the housing target number (but in no event less than ten new housing units) shall not be declared exclusionary or otherwise against public policy.
If you look at II 7 (b), it requires that a growth limitation by-law be consistent with public policy. That public policy calls for 1/5th of the housing target number (5%) be accomplished in any 12 month time period. So, 1/5th of 5% is 1%, this means that to adopt a growth limitation by-law you must allow for a 1% annual growth. To me it is inconceivable that the housing to be built in a non-growth cap community would be set to a number that is lower than the "public policy" figure in II 7 (b).
Taking the sender's comments to represent what was intended by the drafters of the legislation, a position I personally believe is hard to support based upon the supporting documents on the state site and the recent MHP housing study that the Globe published and I reported on here, The following changes would make Section II far more pallatable. I would propose adding the wording in bold and deleting the wording that appears in red.
“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 as of the date on which the plan was submitted to the regional planning agency to be achieved over the ten year life of the certified plan.
This clearly establishes the target as being an annual average of 0.5% housing permit issuance, achievable in many more communities than my current interpretation.
(b) Following the municipality’s effective date, a zoning ordinance or by-law that limits the number of new housing units within residential development districts for which building permits may be issued in any twelve month period to an amount equal to or greater than one-fifth of the pro-rata annual housing target number (but in no event less than ten new housing units) shall not be declared exclusionary or otherwise against public policy.
This may, again benefit far more communities than the current proposal. It essentially establishes that a housing cap community would need to provide for an annual building permit issuance of 0.1%. Previously I picked on Worcester and Alford as housing examples, so I will do that again. The 0.1% housing growth would require a minimum of 70 housing permits to be issued in Worcester under a growth cap, as opposed to the 350 permits under the 0.5% interpretation, or 704 permits under the 1% interpretation. In Alford, the numbers would be a bit different. Alford has 173 year round housing units. The 1% interpretation per year would require essentially ten housing units per year. While 1% per year is 2 housing units the minimum number under II 7 (b) is set at 10 housing units, over the life of a certified plan Alford would have to issue building permits for 100 new housing units - 57.8% growth. Under the 0.5% interpretation, there is still that II 7 (b) limit of a minimum of 10 housing units, so while the 0.5% interpretation would require just 1 housing unit, there is still the issue that "public policy" is established at a minimum of 10 housing building permits annually. My proposal would eliminate the 10 building permit minimum, it would result in a community such as Alford to have to provide, perhaps as little as 2 housing units over a ten year time period, but given the focus on concentrated development, protecting open areas, etc., this may actually be supportive of public policy. Even with this, we would need to figure out how a building moratoria - currently a very legal option for a short term "catch your breath" time period - fits into this equation.
(d) If at any time more than two years after the municipality’s effective date the total number of housing units for which building permits have been applied for within the residential development districts since the municipality’s effective date is greater than the housing target number (adjusted pro rata for the number of years since the municipality’s effective date), but the total number of housing units for which building permits have been issued within the residential development districts is less than the pro rata housing target number, then the provisions of this subsection shall be in effect. During such time period, any applications for building permits or other local land use permits for residential development within such residential development districts shall deemed constructively approved if not acted upon within 180 days after receipt of permit applications. In addition, an application received under this section shall be subject only to those conditions that are necessary to ensure substantial compliance of the proposed development project with applicable laws and regulations; and it may be denied only on the grounds that: (i) the proposed development project does not substantially comply with applicable laws and regulations, or (ii) the applicant failed to submit information and fees required by applicable laws and regulations and necessary for an adequate and timely review of the development project. The foregoing provisions shall no longer be in effect once the total number of housing units for which building permits have been issued within such residential development districts equals or exceed the pro rata housing target number.
Finally, I would suggest deleting Section II 7 (d) altogether. It essentially penalizes communities for circumstances that are completely out of a community's control. Whether a community issues 0.5% or 1% of its year round housing units in new building permits is really irrelevant to the discussion at this point. IF a community is meeting the housing target number requirements for building permit issuance, WHY should it be penalized? In my own opinion, if a community does not have any permit limitation device in place, there should be rewards for that community. On the flip side, if a community needs to limit growth due to the need to provide water or sewer or school improvements, public policy should be to direct public spending to address those needs, not to make them less eligible for the discretionary spending, THAT would allow them to remove the limitation.
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