Sections 1 - 17 establishes changes to the existing zoning and subdivision regulations. Changes that are intended to make planning, zoning and subdivision control more difficult for communities. While organizations like CHAPA may feel that these changes will, in and of themselves, create more housing and more affordable housing, there are historically no examples of home builders building and selling at levels below what the market will support. Really, in the early 2000's did any of them sell homes for their asking prices when offers were exceeding asking price?
"CHAPA has participated in an 18-month process to identify land use statutes that require updates to make it possible to build housing through local zoning at the necessary densities to accommodate affordability and to prevent environmental degradation and sprawl. The proposal would create a local option for municipalities to create growth districts that include prompt and predictable permitting for housing and additional tools to manage growth in areas they prefer to restrict from development. It also includes modest changes to statewide laws to update land use and planning statutes that haven’t been modified in thirty-five years."
This summary requires an itemized response.
...land use statutes that require updates to make it possible to build housing through local zoning at the necessary densities to accommodate affordability....
The zoning act, Chapter 40A, allows communities to establish densities based upon a variety of local needs. Communities with central water and/or sewer are capable of accommodating development at greater densities than communities without central water and/or sewer. There is nothing about the changes in Sections 1 - 17 of H. 3572/S. 765 which will modify density. There are devices in the act that will make it more costly for towns to provide some of the protections that were recommended they adopt in the 1960's and 70's to protect groundwater resources. However, given the nature of today's drinking water protection requirements, without significant state funding for increased water and sewer services, zoning lot sizes are unlikely to change due to the changes in this legislation.
...to prevent environmental degradation....
H. 3572/S. 765 provides very little new for the protection of the environment. Section 9 on Transfer of Development Rights clarifies existing standards, but provides no truly new devices. Similarly, Section 10 on Cluster Development simply restates the current state of the practice for these types of development. The words may change, but the intent and practice will not.
...and sprawl....
There are a number of items in H. 3572/S. 765 that will not only not stop sprawl but might actually increase it. One of the easiest examples is to look at the Cape Cod Commission Act. Development on the Cape either triggers Commission review which increases review time and cost, or stays below the review threshold. Most seek to stay under that threshold. This has led to the Cape model for several larger chain stores. Off Cape they have a particular sized building for a particular market area. On Cape they have a smaller model for a smaller market area. The end result is more of these retail stores. H. 3572/S. 765 will lead to some similar knee-jerk reactions. Changes to Site Plan Review for instance, in Section 8 of the act, when coupled with the Impact Fee provisions in Section 12 restricts a communities ability to make by-right development ensure that they do not create off-site problems that are immediately assignable to that project. There are similar provisions for subdivisions. The immediate reaction will be to modify zoning controls for towns to recover what these sections take away from them. By these, I would suggest that communities will change zoning such that more projects will trigger Special Permit requirements, thus increasing local control by reducing "by-right" development opportunities. As long as communities remember that a land owner needs to be able to do one thing on their property by-right, Special Permit Control is wide open. This would be a tremendous anti-development reaction to an act that purports to promote development in the state. However, since the cities and towns need to protect themselves, and this act makes that quite difficult, cities and towns will need to react.
Relative to subdivisions, when I worked in NH we worked quite hard on matching land densities to a variety of carrying capacities. In MA most of this effort has focused on groundwater resource protection. In NH after the Lewis Builders case many communities asked their Regional Planning Agencies to look closely at their roadway network, existing traffic volumes, roadway width, and traffic capacity for those roads. Given the number of narrow, winding country roads in most towns, roadway carrying capacity became a limiting factor for development. A factor which triggered recommendations for reducing density to ensure that the towns were not required to widen roads. It was not unreasonable in NH to have a development project on Route 1 in Hampton or Portsmouth turned down as "premature and scattered" an important term in the NH Planning Statute which ensured that communities and developers were on equal footing.
By removing the balance that is present in the subdivision and site plan review efforts of communities, which ensure that by-right developments must be approved, but may be approved based upon conditions that prevent adverse impacts on cities and towns, down-zoning and increased sprawl is almost predictable.
The proposal would create a local option for municipalities to create growth districts...
The Land Use Partnership Act, Section 18 and beyond in H. 3572/S. 765 are beyond the reach of many communities. Communities can create growth districts today. Many have. The growth districts today represent desirable opportunities for communities seeking to promote particular forms of development. Many communities on Cape Cod are working with the Cape Cod Commission on such districts. Off-Cape there are numerous such examples. The "Partnership" aspect of H. 3572/S. 765 is that after cities and towns have been penalized the state will offer back a half a loaf to communities, and ensure that the half a loaf is well outside the reach of those communities....that include prompt and predictable permitting for housing...
Ah, the concept of prompt and predictable, as if communities are not prompt and predictable. This is really the starting point for the entire proposal. Communities are not implementing statewide goals for housing, communities are blocking the state's economic development goals, etc. The lobby of a particular conservative think tank that believes cities and towns are bad, cannot be trusted and work against the greater good. It is quite interesting that MA has been relatively insulated from the general market collapse that has taken place in areas such as Arizona, Florida and California to name a few. In part it is because the state did not overdevelop for the past eight years. In fact, housing growth for the past eight years has met the stated goal of 5% housing growth over a ten year time period, and has exceeded that target. At present thousands of approved housing units are unable to be constructed due to the economic meltdown caused in large part by mortgage companies seeking to find creative ways to finance homes as they made their profits off of the mortgage fees. Had banking been more controlled, there would have been a far less drastic economic collapse than we have experienced. The bubble was due to burst, it was just set up to be too big a bubble to begin with.
Housing is now even more out of the reach of many people. Houses are being foreclosed upon due to these creative financing devices which made costs far lower than the realistic costs associated with them. The over-development of the market, yes even here in MA, has led to decreased housing values, leaving real estate developers and home owners with homes and properties valued at less than outstanding mortgages.
...and additional tools to manage growth in areas they prefer to restrict from development.Honestly, I have not found a single one. The statute seeks to clarify or place into statute tools we currently use. These tools are limiting upon what towns can do presently under Home Rule. For instance, Site Plan Review is a tool that the courts have recognized as evolving from Home Rule powers. Site Plan Review mirrors Chapter 40A Section 9 and simply allows a review to protect health, safety and welfare for otherwise by-right development projects. The proposal will reduce community powers under Site Plan Review, restrict the review period available to a community and basically tie the community's hands. Hardly an additional tool. Similarly there is a provision to specifically explain the restriction on zoning's reach into the interior of a home. This particular provision originally came about to ensure that cities and towns were not making requirements that only expensive homes were being built. While the courts have consistently interpreted this statute to allow significant leeway to communities, the change proposed will reopen the entire litigation question all over again.
...It also includes modest changes to statewide laws...
There is little that is modest about the changes that take place in Sections 1 -17 of H. 3572/S. 765. Modesty is clearly dependent upon what side of the fence you are on....to update land use...
The act does not require communities to update land uses, the Community Planning Act makes far more of a direct connection between local comprehensive plans and land use than H. 3572/S. 765. If the desire is to update land use plans and provide a direct connection between these plans and zoning, then the Community Planning Act is the correct too.
...and planning statutes that haven’t been modified in thirty-five years.
The overall planning statute has not been updated in 35 years, however, piecemeal changes have been made almost annually. This proposal provides a new piecemeal set of changes to the statute. It is not comprehensive, but is quite punitive. The best part of the provisions are placed outside of the zoning act and out of reach of most communities. If CHAPA wants to get behind true zoning reform, the Community Planning Act is the correct mechanism.
No comments:
Post a Comment