Personal Thoughts on the Land Use Partnership Act - Local Land Use Regulation Affecting Certified Plan Communities.

I am going to try to address this section in one post, which will just about wrap up my personal thoughts on this legislation. My biggest concern is that, while they are proposing changes that "will only affect certified plan communities" they are making changes to portions of Chapter 41 Section 81 that could be viewed as being implemented more broadly. Adding simple caveats into the legislation reflecting more clearly what is intended (which has been placed in one of the definitions changes being proposed).

III. MODIFICATIONS TO LOCAL LAND USE REGULATION AFFECTING CERTIFIED PLAN COMMUNITIES

1) ANR, minor subdivision review

Insert the following new paragraphs within Section 81L of Chapter 41:

“Certified plan community” shall have the meaning set forth in Section [2] of Chapter 41.

This change is simple enough, giving Certified Plan Communities recognition within Chapter 41.

“Minor subdivision review ” shall mean an alternative method of approval under the subdivision control law, applicable to any proposed division of a tract of land into four or fewer lots, under which: (a) no preliminary plan is required; (b) approval is granted by a simple majority of the planning board; (c) decisions are made within 60 days, or else deemed constructively approved, as defined in Section [2] of Chapter 41; (c) approval shall be based solely on the compliance of the lots shown with reasonable rules and regulations regarding the adequacy of access, utilities and stormwater drainage controls and on the compliance of the lots shown with the zoning ordinance or by-law; and (d) such rules and regulations may include a requirement that two or more of the lots have shared access to an existing public way, but may not impose design or construction requirements on such shared access other than those minimally necessary to provide for public safety. Lots approved under minor subdivision review may not be re-subdivided so as to create additional lots under minor subdivision review for a period of ten years after initial approval.

Here the proposal is to add a new definition for plans subjected to Minor Subdivision Review. We are in a definition section, this definition reads like it could be applied in any community. The definition should be changed to add reference to the community being a Certified Plan Community. This really should be right up front, I would suggest that the change be made in the opening clause such that it might read "“Minor subdivision review ” shall mean an alternative method of approval in Certified Plan Communities under the subdivision control law...."

Modify the definition of “subdivision” within Section 81L of Chapter 41 as follows:
“Subdivision” shall mean the division of a tract of land into two or more lots and shall include resubdivision, and, when appropriate to the context, shall relate to the process of subdivision or the land or territory subdivided; provided, however, unless a municipality is a certified plan community and has in effect minor subdivision review procedures, that the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision within the meaning of the subdivision control law if, at the time when it is made, every lot within the tract so divided has frontage on (a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon. Such frontage shall be of at least such distance as is then required by zoning or other ordinance or by-law, if any, of said city or town for erection of a building on such lot, and if no distance is so required, such frontage shall be of at least twenty feet. If a municipality is a certified plan community and has in effect minor subdivision review procedures, then any division of a tract of land into two or more lots, including resubdivision, shall be deemed to constitute a subdivision within the meaning of the subdivision control law, except as provided in the following sentence. Conveyances or other instruments adding to, taking away from, or changing the size and shape of, lots in such a manner as not to leave any lot so affected without the frontage above set forth, or the division of a tract of land on which two or more buildings were standing when the subdivision control law went into effect in the city or town in which the land lies into separate lots on each of which one of such buildings remains standing, shall not constitute a subdivision. Within a certified plan community that has adopted minor subdivision review procedures as of the municipality’s effective date, a tract of land that was divided into two or more lots pursuant to Chapter 41, Section 81P of the General Laws prior to the municipality’s effective date, but after December 1, 2008, shall be deemed a subdivision within the meaning of the subdivision control law with respect to the lots so created for which a building permit has not been issued by the municipality prior to the municipality’s effective date.

This section has the verbiage that should have been included in the previous definition change.

The final change deals with adding additional verbiage to Chapter 40A Section 6. Outside of the fact that Section 6 is already long, tedious and difficult to read, the additional wording really only applies to communities with certified plans and reads as follows:

2) Zoning plan freeze

Insert the following new paragraph after the new paragraphs that follow the new paragraphs of Section 6 of Chapter 40A (see I(A)(6) above):

Within a municipality that is a certified plan community, if a declaration of development intent is submitted to a planning board on or after the municipality’s effective date, 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 and all other local land use regulations, if any, in effect at the time of such written notice of submission, for a vesting period that ends either: (a) three years from the date of such written notice of submission, or (b) to the extent the land shown on the plan has been previously been disturbed, and if there has been substantial investment in site preparation and/or infrastructure construction within such three years, five 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 or of any other local land use regulations, if the first notice thereof was posted prior to the date of 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 or of any other local land use regulations, 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. Whatever the length of such vesting period, it 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.

All the proposed changes in this section provide relief to communities with certified plans. I am not really sure whether the change from Approval Not Required to Minor Subdivision Approval is really all that big a change. It would be great to have the extra time and the requirement that the lots comply with zoning, which ANR lots do not have to do, but the costs associated with getting certification may be too great a burden.

Similarly the zoning freeze change to only three years, over the current eight sounds great, but the other changes that are proposed, the letter of intent to develop, the minimum two year life of a permit, etc, are, again, too great a cost.

The final section of the proposed act, Section 4, deals with providing funding, outside of the fact that $1,000,000 will provide far too little funding for communities to develop these plans, I really do not have anything to say.

Anyway, thanks for listening to my month long rant on this proposal. Hopefully it will open up some eyes, get the committee that crafted this looking at the proposal from the local level, and withdraw it to re-write the act.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 11)

This comment will focus on Section 11 of Part 2 of the proposes Land Use Partnership Act. It is probably the best aspect of the entire legislation, and should be made much broader. First, the section reads as follows:

11) Consideration under State Programs

State agencies responsible for regulatory and/or capital spending programs that have a material effect on land use and development within certified plan communities shall take into account the land use goals, objectives and policies of such communities, as set forth in their certified community land use plans, in administering such programs.

The section calls for state programs and regulations to be sensitive to the goals, objectives and policies of local plans certified under this section. This is laudable, but should be expanded upon. The state should be seeking to encourage local planning. Planning that is consistent with Chapter 41 Section 81D. As such, the state should embrace and seek to support the goals, objectives and policies of any plan endorsed by town meeting that meets the stated goals of the existing state planning act.

LUPA Sponsors

Found this on the CHAPA website. Please let your legislators know this act has many problems for your community.

Land Use Partnership Act

Lead Sponsors: Rep. Kevin Honan and Sen. Harriette Chandler

STATE REPRESENTATIVE KEVIN G. HONAN
State House
District Office
Room 38
192 Faneuil Street
State House
Brighton, MA 02135
Boston, MA 02133

Party Affiliation - DEMOCRAT

DISTRICT REPRESENTED: Seventeenth Suffolk. - Consisting of precincts 3, 5, 6, 7, 8, 9, 10, 11 and 12 of ward 21, and precincts 2, 3, 6, 9 and 10 of ward 22, of the city of Boston, in the county of Suffolk.

SENATOR HARRIETTE L. CHANDLER
State House
Room 312-D
Boston, MA 02133

Party Affiliation - DEMOCRAT

DISTRICT REPRESENTED: FIRST WORCESTER. & #151; Worcester, wards 1 to 4, inclusive, 9 and 10, Berlin, Boylston, Clinton, precincts 3 and 4, Holden, Northborough, precincts 1, 2 and 4, Paxton, Princeton and West Boylston.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 10)

SHORT SECTION WITH MAJOR IMPACTS!!!!

Section 10 directs state discretionary spending towards certified plan communities. This will reduce funding opportunities to any community that is unable to meet the requirements of this proposal. This could reduce, or eliminate, access to state discretionary funding for many communities. Essentially penalizing communities unable to meet the requirements, even though the requirements of this section are impossible for most communities to achieve - both urban and rural. If nothing else changes in this act, the legislature needs to know that this particular section clearly needs to be removed from the act.

Section 10 reads:

10) Priority for Infrastructure Funding

The executive office of housing and economic development, the executive office of energy and environmental affairs, the executive office of transportation, and the executive office of administration and finance shall, when awarding discretionary funds for local infrastructure improvements, give priority consideration to infrastructure improvements identified in the certified plans of certified plan communities.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 9)

This section is very simple establishing the valid life of the plan and the subsequent impacts on certification. The section reads;

9) Expiration and renewal of certified plan community status; amendments.

(a) A municipality’s status as a certified plan community shall expire ten years after the municipality’s effective date, unless a renewal plan, together with any necessary implementing regulations, is prepared, certified, and adopted in accordance with the provisions hereof prior to such date. Each such renewal plan shall also expire in ten years.

(b) From and after a municipality’s effective date, any material amendment to a certified plan or to any certified implementing regulations shall be prepared, certified and adopted in accordance with the provisions hereof. The Interagency Planning Board may by regulation define categories of amendments that shall be deemed non-material.

This is pretty straight forward, the plans and certifications are valid for a ten year time period, this is pretty standard. The requirement for renewal matches normal requirements for updating and readopting local plans. The amendment process also seems rather straight-forward.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 8)

Section 8 of the Land Use Partnership Act establishes a review process by which the Interagency Planning Board reviews the actions taken by a regional planning agency. Essentially this section provides an avenue for relief by a community if it feels that it has not been treated fairly by its regional planning agency. However, it also reads like "Big Brother" keeping tabs on what happens at the regional level due to the provision for the Interagency Planning Board to, at its own initiative, review actions of the regional planning agencies. Let's look at Section 8 piece by piece:

8) Review of certification by regional planning agency

Any certification or determination of non-certification by a regional planning agency with respect to a plan or implementing regulations or a material amendment of either is subject to review by the Interagency Planning Board. The Interagency Planning Board may, upon the request of the subject municipality or upon its own motion, review any such decision in an informal, non-adjudicatory proceeding, may request information from any third party and may modify or reverse such decision if the same does not comply with the provisions hereof.

Plain and simple, why do we need to give this Interagency Planning Board the ability to review an action by a regional planning agency without an appeal by a community. Giving the IPB the ability to initiate its own review, places it into a prosecutor, judge and jury wrapped into one.

If a municipality provides written notice to the Interagency Planning Board of the certification by a regional planning agency of a plan or implementing regulations or a material amendment of either (including a deemed certification resulting from a regional planning agency’s failure to act), then the board may only review such certification if it commences such review with 60 days of such certification.

Okay, I have searched the proposed legislation and have not found a requirement for a community to notify the IPB of an approval, so why would a community provide such a notification? On the flip side, if a community does not notify the IPB, does this mean that the restriction on the IPB review never expires? Seems like a step has been considered, notification to the IPB, but not actually included in the proposal. To be honest I do not believe there is a need for such a review authority.

The Interagency Planning Board may through regulation establish a procedure for reviewing and approving guidelines prepared by regional planning agencies to be used in the certification of plans, implementing regulations and material amendments. If a certification or determination of non-certification under review by the Interagency Planning Board has been issued by the regional planning agency based upon an approved guideline, then the board may only modify or reverse such decision for inconsistency with the approved guideline.

We need procedures, however, these procedures need to be established prior to any plans being reviewed. If they are not, then it leads to a suggestion that the procedures are being created to keep cities, towns and regional planning agencies in check.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 7)

Section 7 of this section of the Land Use Partnership Act is particularly scary. The Lewis Builders cases in New Hampshire essentially established a "builder's remedy" for developers to argue that a community's zoning did not implement or contradicted the local plan. At a minimum, the proposals within this document does exactly the same - if not outright declares a communities old zoning invalid. Communities pursuing certification under this statute will need to clearly understand that to certify their plan, and zoning calls for far more than bringing the plan, and proposed zoning changes through the regional review process prior to adoption. It really also entails having the regional planning agency review the town's complete zoning scheme reviewed and certified - even the zoning that is not changing. After having the full zoning scheme certified, the entire zoning by-law will need to be re-adopted by the town. Failure to carefully follow this process will trigger a determination that any existing zoning not certified as consistent as void. Such an occurrence will leave large sections of communities without any zoning protection at all.

In addition, there are provisions in the proposal that essentially provide certified communities no protection at all. In fact, it is so open to private manipulation that it leaves communities with almost no protection even if they are certified!

7) Effect of certified plan status on zoning and land use regulation

(a) Following the municipality’s effective date, local zoning ordinances or by-laws, subdivision rules and regulations, and other local land use regulations (other than certified implementing regulations) which are determined to be inconsistent with the certified plan or the certified implementing regulations shall be deemed invalid. Such a determination may be sought and obtained through any means otherwise available by statute for the determination of the validity of such land use regulations. Any material amendment to a certified plan or certified implementing regulations that has not been prepared, certified and adopted in accordance with the provisions hereof shall be presumed to be inconsistent with the certified plan.

While not specifically calling for certification of existing zoning, this section leaves open the challenge as inconsistent any existing zoning that has not been certified. That's the bad part of this regulation. Unfortunately it outweighs the good part, which is the protections provided by requiring changes to the implementing regulations to be certified - something that protects towns from hostile attacks on zoning by special interests.

(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.

This is an attempt to legislate authorization for actions that have had fairly strict judicial review. Outside of Cape Cod, communities have been restricted to proving a need for a building cap and limiting the length of the cap to allow for eventually solving the problem that led to the cap. This provision allows for an open ended restriction on building, as long as the community remains certified. However, the requirement is based upon having the residential development districts in place, and only allows for limiting building permits within these designated districts. It does not limit building permits town-wide, or provide any level of protection for communities outside of the residential development districts.

(c) Following the municipality’s effective date, a zoning ordinance or by-law that requires a minimum lot area of two acres or more for single-family residential development upon farmland, forest land or other land of environmental resource value shall not be declared exclusionary or otherwise against public policy.

Not really sure what this grants to communities with certified plans. The courts have already established the large lot zoning can be implemented if it is the minimum necessary to protect a valued resource, specifically the types of areas that this seeks to protect. Essentially the proposal grants towns something they already have. This begs the question, will adding this section to the certified plan community's list of protections alter the existing court position on the use of such standards in non-certified plan communities? I for one do not want to find out. This section should be stricken quickly from this proposal, and leave the existing court standards unchanged.

(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.

This provision is very difficult to follow, lets break it into its parts to decipher:

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....

So, to start, the town issues building permits that exceed what they are required to issue, but the builders do not build those units.....

....then the provisions of this subsection shall be in effect.

...special restrictions come into play.

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.

Even though the community met its requirements to provide housing opportunities, and the permits are issued, the fact that builders choose not to build These special provisions essentially places the fault on the community and make things easier for private developers to acquire more permits....

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;

...even to the extent of removing any conditions the town may have placed on the application....

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

...restricts a community's ability to deny a project that does not fully comply with zoning (here we get that substantially comply standard established again which suggests that projects that do not strictly comply have some rational basis for approval)...

(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.

Gee, no brainer, lack of adequate plans or application fees would seem to equal no application actually being filed, anywhere except Massachusetts that is.

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.

And, finally, as long as the builders do not build housing equal to 2% of the housing in the community over a two year time frame the certified plan provides the community no protection.

As I said, this section is quite scary.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 6)

Section 6 addresses the process for having zoning by-laws certified as consistent with the required plan. The section is merely process. The one positive about this section is that having zoning found consistent with the plan described in Sections 3 - 5 provides a community with protections from the changes the proposal imposes on communities without certified plans and by-laws.

As I previously discussed, the legislation calls for changes to how zoning gets adopted, allowing for a simple majority at town meeting as opposed to the current super majority. The changes also allow for increased levels of grandfather protection in un-certified communities. These changes will allow for special interests to petition for zoning changes that may be inconsistent with the local plan adopted under Chapter 41 Section 81D, stack town meeting to ensure passage, submit an intent to develop based upon the new zoning, and thereby acquire grandfather rights before proper community planning can recover.

The processes in Section 6 establish that, in a certified plan community, before a zoning change can go to town meeting, the zoning change must be certified by the regional planning agency as consistent with the local plan. Essentially halting in their tracts special interest zoning petitions.

While I have not thought out the ramifications, it may be appropriate for such a review of all zoning changes in any community - especially if the proposal to change the process and allow easier grandfather rights to be established were to be approved.

Section 6 reads:

6) Certification and adoption of implementing regulations

(a) Prior to or following municipal adoption of a certified plan, the municipality may prepare implementing regulations. To assist municipalities in this effort, the regulations to be promulgated by the Interagency Planning Board hereunder shall include at least one model provision for implementing regulations for open space residential design, low impact development, and clean energy generation/cogeneration facilities that would satisfy the standards hereof.

(b) The chief executive officer of the municipality may submit the implementing regulations to the regional planning agency for certification. Within 90 days of receiving a submission, the regional planning agency shall determine whether the implementing regulations are consistent with the certified plan. The implementing regulations shall be deemed consistent with the certified plan if they effectuate the minimum standards for consistency with the Commonwealth’s land use objectives established or required by the certified plan. If the regional planning agency determines that the implementing regulations are consistent with the certified plan, then the agency shall issue a written certification to that effect. If the regional planning agency determines that it is unable to issue such a certification, then the agency shall provide the municipality with a written statement of the reasons for its determination. A municipality may re-submit for certification at any time modified implementing regulations that address the issues set forth in the agency’s statement of reasons. If the regional planning agency does not issue a certification or provide a statement of reasons within 90 days after receiving implementing regulations (including re-submitted implementing regulations), then the implementing regulations shall be deemed certified. The municipality shall have the option of submitting its implementing regulations together with its submission of its community land use plan pursuant to Section 4, in which case the regional planning agency shall review both the plan and the implementing regulations within the same 90 day period.

(c) Following certification by the regional planning agency, the implementing regulations may be adopted by the municipality by a simple majority vote of its legislative body. On the date of receipt by the regional planning agency of proof of adoption of the certified implementing regulations pursuant to a certified plan, a municipality shall be deemed a “certified plan community”. Such date shall be deemed the “municipality’s effective date”.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 5)

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.

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[1] Definition is intended to allow RPAs to rely upon the baseline number for total housing units in DHCD’s subsidized housing inventory.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 4)

Section 4 of the New Framework for Local/Regional Planning addresses consistency with state and regional plans and certification of local plans.

4) Regional planning agency certification and municipal adoption of plan

The chief executive officer of the municipality may, if such action is recommended by the planning board, submit the plan to the regional planning agency for certification. Within 90 days after receiving a submission, the regional planning agency shall determine whether the plan is (a) complete and (b) consistent with the Commonwealth’s land use objectives. A plan shall be determined to be complete if it contains all the elements required in Section 3. A plan shall be determined to be consistent with the Commonwealth’s land use objectives if it satisfies the minimum standards for consistency in accordance with Section 5. If the regional planning agency determines that the plan is complete and consistent with the Commonwealth’s land use objectives, then the agency shall issue a written certification to that effect. If the regional planning agency determines that it is unable to issue such a certification, then the agency shall provide the municipality with a written statement of the reasons for its determination. A municipality may re-submit for certification at any time a modified plan that addresses the issues set forth in the agency’s statement of reasons. If the regional planning agency does not issue a certification or provide a statement of reasons within 90 days after receiving a plan (including a re-submitted plan), then the plan shall be deemed certified.

Following certification by the regional planning agency, the plan may be adopted by the municipality by a simple majority vote of its legislative body.

This section is innocuous to an extent. It requires that the regional planning agency determine whether the local plan is complete and consistent with the STATE land use objectives. I emphasize consistency with the state land use objectives. As I have read the proposed state statute, I have seen little call for a regional plan to be developed, and little call for the regional plan to be consistent with any state objectives. This is a big issue. On Cape Cod, the emphasis of planning has been on preserving resources and ensuring that development impacts doe not overwhelm local and regional resources. These regional objectives, I believe, will be inconsistent with the directives in this set of regulations.

This inconsistency will lead to problems for Cape communities. In fact we are looking at a three handed beast. First, on one hand towns must develop plans under Chapter 41 Section 81D. This requirement does not appear to be replaced under this proposal. Section 81D calls for a much larger study focus than this proposal. To comply with Section 81D a town will need to draft its Master Plan. For Cape communities we are supposed to strive for consistency with the Regional Policy Plan. This plan makes requirements as to what the outcome of our 81D plan should look like. As a town planner on the Cape, I have voiced much concern about this consistency requirement as the region's vision is not always compatible with local desires. With this proposed legislation, Cape towns will have a third directive regarding the Master Plan. One that will require processes to be developed which may not be consistent with local desires, or the regional policy plan. Drafting a plan under Chapter 41 Section 81D is complicated enough, the additional burden of the Cape Cod Commission Act and now this statute will make planning far more difficult.

If this legislation were to pass, and I really hope that communities stand up and point out why is should not, I will implore the Cape Cod Commission to look at the exception provisions that are provided for later in the proposed statute. I think that, for consistency with the Regional Policy Plan objectives, the Commission will see that it is impossible for towns on the Cape to be fully consistent with the requirements set forth - in particular the growth and lot size standards.

Statewide Population Estimates

Here is an interesting article from the NY Times on the most recent population estimates from the Census Bureau, As Economy Stalls, Fewer New Yorkers Moving Out of State.

The writers, and analysts they turned to, have more data available to them than we can get off of the Census Bureau's website, but it draws some interesting conclusions about the changes in NY. Here are a few of the better quotes to contemplate:

"The collapse of home values across the country appears to have already profoundly affected the ability of people in many states, including New York, to sell their homes and move, curtailing domestic migration."

Massachusetts grew 0.46% between 2007 and 2008, New York grew by 0.31% in that time period. No one from New Jersey to Maine grew faster than Massachusetts for that year.

"Florida, which saw a significant drop in its annual influx of New Yorkers, lost more people to other states — nearly 10,000 more — than it gained for the first time in recent history."

"California also faced an anomaly in the most recent data: for the first time since the early 1990s, more people moved out of California than out of New York. That earlier period coincided with a recession in California caused by defense industry cutbacks."

The two states that the Northeast usually loses out to, are now facing their own out-migration. Not that their population is dropping - California grew by 1.03% in the past year. However, that growth appears to be more immigration from other countries and natural growth (birth versus death rates).

"...while the decline in people leaving New York was spread evenly across the state, the number moving in rose mainly in New York City."

Perhaps the economic downturn will help cities....

Other interesting tidbits include the fact that states, such as New York and, by extension looking at our population growth numbers, Massachusetts may not be as unaffordable as they have been viewed in the past as the housing market has fallen. Not necessarily good economic news in itself, but, as housing prices have dropped they have become far more accessible to working class people than at any time in the past several years.

I have pulled some of this census material off of American Factfinder and will present a few comparisons in the next few days

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 3)

The next discussion focuses on the elements of the plan. The elements of the plan are intricately tied into the states goals for plans some minimum performance standards to be discussed in a later post. The following provides the sections and my comments:

3) Elements of community land use plan

A planning board may prepare, and from time to time amend or renew, a community land use plan for a municipality, to be submitted to the regional planning agency for certification. The plan shall address at least the following five areas: economic development, housing, open space protection, water management, and energy management.

First we are to recognize that this plan is "optional." Of course "optional" is relative. The state has tied discretionary spending to areas with plans certified under this statute. As such, the plan is "optional" as long as receiving state infrastructure money is also optional to the town. It is amazing that the state believes that we only have five areas of concern! The plan does not even have to address issues for which Impact Fees are authorized! Again, this is short-sited, not responsive to full spectrum planning and focuses only on the needs of today, not a full picture of the town. All the issue areas of 81D should be studied and continue to be required, otherwise it is not truly a plan.

The plan shall contain:

(a) an overall statement of the land use goals and objectives of the municipality for its future growth and development, including specific reference to each of the five areas;

Except for this being limited to the five areas called for above, this is a basic part of any plan.

(b) a description of the zoning and other land use regulation policies that will be used to implement those goals and objectives, including with respect to each of the five areas;

The planning requirements jump from goals and objectives to implementation. There is much that needs to be taken up between what is called for in (a) and (b). In particular the community needs to be looked at, where it is in its history, how it got here, and, especially important, where it fits into the region. Rather than this type of an introspective analysis, the legislation calls for jumping straight to implementation. Why? Because the drafters of this legislation have the answer! There is no need for analysis when the conclusion has already been drawn. The conclusion is that we are not building enough housing, we are taking too long to issue permits, we are all anti-growth. This is cannot be further from the truth. Proposition 2 1/2 creates a strong need to chase growth. The limits of Proposition 2 1/2 does not allow the local tax rate grow fast enough to keep up with inflation. New growth is needed. New growth is not happening fast enough for various state officials. There are many studies illustrating how much land we are losing to development. Many studies illustrate how growth is outstripping our ability to provide the necessary infrastructure. It is not that we are growing too fast, it is that we are growing in the wrong areas. We are growing in communities which should stay farmland. We are growing on the sand bars of many coastal towns, only to watch those houses wash away. Jumping from goals, to policies without the needed analysis will continue to lead to wrong decisions. Decisions that will not necessarily aid the economic growth of the state.

(c) an assessment of the infrastructure improvements needed to support the implementation policies and strategies identified in (b);

Again, infrastructure assessment is an important part of a local plan. This assessment however needs to take place after a complete look at the community. We need to know how the community is and has been growing, not just what infrastructure is needed to get somewhere in the future. This analysis would suggest that the needs of future residents and businesses is more important than those that are already within our boundaries.

(d) an assessment of the plan’s consistency with any applicable existing regional plan or planning guidance;

And then we jump to determining consistency, outside of goals and future land use strategies, we have not yet looked at the town in a proper planning framework and we need to look at whether our future patterns are consistent with a regional vision. Before determining consistency, we should have made a determination as to where a community fits into the region.

(e) an overall assessment of the plan’s consistency with the Commonwealth’s land use objectives set forth in Section 1;

Here again, consistency seems to take priority over needs assessment and proper planning. While the objectives of the state should be considered, discussed and decisions made in relation to these, consistency should not be seen as the end that must be justified. Within the framework of this legislation the end seems to be the only consideration.

(f) an assessment of the plan’s specific compliance with the minimum standards for consistency set forth in Section 5 below; and

Section 5 will be discussed later. It raises issues that not every community can meet nor should have to meet. Having to meet the minimum standards in Section 5 will preclude many from pursuing this form of plan. These minimums will also deny some access to state discretionary funds.

(g) a description of the manner and degree of public participation and involvement in the preparation of the plan.

All plans must be developed within the public forum. If not, it is not much of a plan. However, with consistency requirements established by a regional entity, and an even more remote state mandate, establishes ends which the public are being told they must accept. Hardly public involvement. The objectives of this legislation, and the minimum standards have been established by special interests. It has been overseen by a party interested primarily in getting permits issued. It establishes limits on public appeal of decisions, this legislative proposal hardly represents the public participation needed for the planning process, and has set limits on what the plan can accomplish.

The plan may include materials prepared within the past five years as part of a local planning document, including a master plan prepared pursuant to Chapter 41, Section 81D of the General Laws.

Here we see reference to a Chapter 41 Section 81D plan, which MAY be included in the plan called for in this legislation. The 81D plan should be the starting point, not an optional aspect of a planning document upon which local zoning is established.

The planning board shall hold at least one public hearing, with two weeks prior notice, for public review of and comment upon the plan, before the plan is submitted to the regional planning agency for certification. After the public hearing, the planning board may recommend to the chief executive officer of the municipality that the plan be submitted to the regional planning agency for certification.

This last paragraph should call for formation of a committee to draft the plan and solicit public involvement. Perhaps a final public hearing needs to be stated in the legislation, but the legislation should lay out some minimum level of public participation throughout the document.

Who Said History Does Not Repeat Itself?

I found this interesting article while searching for how long houses are staying on the market in the current fiscal reality. It makes for interesting reading. The Rising Tide of Cape Cod Real Estate.

This article dates to 1999 and makes several references to the housing busts of the 80's and early 90's. Of particular interest are the comments about over-building.

A few choice quotes:

"In the giddy mid-’80s, real estate was a monster that gobbled up thousands of properties and spit out high prices and grew and grew until it finally gorged itself to death. "

"The early ’90s saw failures, foreclosures and forlorn homeowners trying desperately to sell their devalued properties without taking too much of a loss."

"He is cautious about these times and fears the market mirrors the late ’80s. 'In the early ’90s, people said we would never have the ’80s again,' he said. 'Now values are just as high and we’re beginning to see some speculation now. Speculation always comes at the end of the market.' "

"Other agents point out the differences between now and then. Interest rates are low, banks are not dabbling in questionable loans, hundred-home subdivisions have disappeared. As long as the stock market remains strong and the economy continues to boom, people will have those few extra dollars for vacation homes on the ever-popular Cape."

Remeber this was 1999, before the sub-prime mortgage fiasco. Hundred home subdivisions may have disappeared here, but not in other parts of the country.

"'I don’t want to go through 1989, ’90, ’91 again. It was hell,' Regan said. 'We have metamorphosed into a more stable business. We learned a lot from that rapid growth. I don't see that happening again.' "

I would suggest that we learned some from the 89-91 time period, but we may not have learned enough. Setting targets for housing growth, especially a target that relies upon a population growth that may not materialize could prolong the current debacle, and perhaps lead to a greater one in the future.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 2)

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.

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[1] Definition is intended to allow RPAs to rely upon the baseline number for total housing units in DHCD’s subsidized housing inventory.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local and Regional Planning (Part 1)

Now, we get into the meat of the proposal. Well, the meat of the proposal for communities which may be able to meet the demanding standards set forth in the Land Use Partnership Act. My guess is that this number will be far less than the state envisions.

II. New framework for local / regional planning

To be inserted as a free-standing series of sections into M.G.L. ch. 41, following Section 133 (current end of chapter)

1) Preamble; statement of the Commonwealth’s land use objectives

Sections A through Z of this chapter shall be known and may be cited as the “Land Use Partnership Act”. The purposes of the act shall be to advance the following land use objectives:

The goals are laudable, however, they cannot possible be carried out. The provisions above for the zoning and subdivision changes will work at odds with these goals. The goals also are far too current buzz-word oriented. I would challenge the state to apply these provisions to every Chapter 40B application, I would guess that they will be ignored.

a) Support the revitalization of city and town centers and neighborhoods by promoting development that is compact, conserves land and integrates uses;

What about communities without an established development center? While this is laudable in general, it is far from fair or practical in some of the remote hilltown and farm communities. On the flip side I can think of a large number of Chapter 40B projects which have been approved for state funding and have had the local denial overridden by the Housing Appeals Committee that do not meet this objective.

b) Support the construction and rehabilitation of homes near jobs, infrastructure and transportation options to meet the needs of people of all abilities, income levels, and household types;

Another laudable goal, however another one that does not fit every community. Really, what about towns with no mass transit, very limited employment, etc. Again, what about Chapter 40B projects? Should they be limited to city and town centers and other areas where infrastructure, jobs and transit are available? That would be ideal, however, it does not appear to be what the state has been promoting under this statute.

c) Attract businesses and jobs to locations near housing, infrastructure, and transportation options;

Essentially the same as b) except it deals with job placement. It makes total sense, it would protect rural communities and would add to farmland preservation. However, such a zoning initiative by a town (agricultural zones with 5 acre lot sizes) would apparently be viewed as exclusionary and would be found problematic under the provisions of the act which precede the planning proposals found here.

d) Protect environmentally sensitive lands, natural resources, agricultural lands, critical habitats, wetlands and water resources, and cultural and historic landscapes;

I could think of many towns that could fit a protect 100% under this criteria. However, since this act requires town's to accept a 1% annual growth in housing, such preservation would be negated. I would challenge the state to look closely at the entire state and recognize the varied assets. What made some places cities, and what features kept the same development out of certain areas. I think the state would find that those same characteristics prevail today. The state needs a State Planning Office dealing with Planning Issues, not a Business Development Ombudsman or a Housing Agency, but rather a comprehensive State Planning Office, which looks at all the issues and establishes plans accordingly. I will admit that I have significant differences with the Cape Cod Commission, but I respect their efforts as they do undertake in their Regional Policy Plan far more analysis of general conditions than other regional agencies or the State. The state Business Development Ombudsman position needs to be replaced with a Planning Office that will take into consideration many of the items that the Cape Cod Commission has in effecting its plan.

e) Construct and promote developments, buildings, and infrastructure that conserve natural resources by reducing waste and pollution through efficient use of land, energy and water;

Again laudable, but may be better addressed within a larger environment. Perhaps statewide, but definitely regionally. There are clearly areas in the Berkshires or in Franklin County for instance that should be identified as areas for resource conservation and placed off-limits to the development pressures called for in this statute.

f) Support transportation options that maximize mobility, reduce congestion, conserve fuel and improve air quality;

This section, again calls for limits on the 1% annual housing construction called for in this proposed act. Some areas cannot provide such housing growth in a fashion that maximizes mobility. The towns are just plain isolated. Taking it a bit further, the limitations on off-site improvement requirements discussed earlier eliminate the ability for a town to require sidewalk or bicycle facility connections by individual developments. Placing all of this onto the community as a municipal burden

g) Maximize energy efficiency and renewable energy opportunities to reduce greenhouse gas emissions and consumption of fossil fuels;

Obviously this can be accomplished anywhere, however particular resources are easier to harness in some areas than in others. While it is possible to place a wind tower on a sky scraper in Boston, having a much larger facility in the hills will be far more efficient.

h) Promote equitable sharing of the benefits and burdens of development;

I am assuming that this is the Chapter 40B savior. Every town must have an equitable share of affordable housing, regardless of whether the town has the facilities needed to support such housing or ensure that the residents of such housing can travel to work. I think a better approach to this would be to have a benefits/burden checklist. One town may host energy facilities which would off-set its need to provide some other necessary item. For instance, on the Cape there is a need for seasonal employee housing. It meets an important local need, but does not meet Chapter 40B requirements.

i) Make regulatory and permitting processes for development clear, predictable, coordinated, and timely in accordance with smart growth and environmental stewardship; and

Here is an objective that needs to be more fully understood. The ramifications are immense. The permitting process for development must be clear, predictable, coordinated and timely. Lets reduce costs in the permitting process. This takes into no consideration that each site, and each land use raises its own unique set of issues and characteristics. The problem with the development process, in the eyes of those who drafted this proposal, is that the communities area trying to stop development. Not that particular developments are inappropriate for the site, or provide inadequate information. This legislation is very much like the studies that have come out of the Rappaport Institute and other Real Estate think tanks. The problem is the communities, the local regulatory process, the local regulatory environment. The problem is not with developments that have no sense of place or consideration for the location they have chosen. This particular terminology suggests that Walmart and Target Stores everywhere is appropriate. That more homes should be built on the White Cliffs in Plymouth or the outer shores of Plum Island. And then when these homes wash away, it is the town's responsibility to try to protect this inappropriate development. Really, over 40 years ago a swamp was built on in Granby with housing. The people who bought these homes had problems from day one with their septic tanks and wells. It became the town's problem to solve. The home builder was long gone. Water and sewer extensions were the answer, but the location was far from any town boundary where neighbors has such services. When towns say "no" they are the problem in the eyes of the crafters of this proposal, but when they say "yes" they often inherit bad decisions by those seeking to build.

j) Support the development and implementation of local and regional plans that have broad public support and are consistent with these purposes.

I think when the public fully understands the nature of this legislation, it will be extremely difficult to draft a local plan that has broad public support and is consistent with this section. There is far too much in this section that declares towns, and their residents are the problem, and not enough, if anything at all, which shows that towns are doing things correctly.

As I blogged recently, the Planning Act could borrow a lot from New Hampshire. Much broader issues which must be addressed, much broader statements about what zoning should accomplish. There is none of that in this proposal, from the objectives to the final sections, the proposal is flawed. I urge everyone who reads these posts to stand up and ask the administration to withdraw this proposal. I also urge you to ask your representatives and senators to oppose this act.

Over the coming months you will hear the debate say that they are delivering to us the changes we have been asking for in zoning reform. Unfortunately this act is not that platform. This act needs to be defeated.

Personal Thoughts on the Land Use Partnership Act - Modification to Subdivision Control (Part 2)

I provided a teaser to this discussion in my previous post. The Land Use Partnership Act includes a proposal to limit appeals of subdivision approvals. The exact wording is:

2) Limitations on appeals.

Modify the first paragraph of Section 81BB of Chapter 41 as follows:

Section 81BB. Any person, whether or not previously a party to the proceedings, or any municipal officer or board, aggrieved by a decision of a board of appeals under section eighty-one Y, or by any decision of a planning board concerning a plan of a subdivision of land, or by the failure of such a board to take final action concerning such a plan within the required time, may appeal to the superior court for the county in which said land is situated or to the land court; provided, that such appeal is entered within twenty days after such decision has been recorded in the office of the city or town clerk or within twenty days after the expiration of the required time as aforesaid, as the case may be, and notice of such appeal is given to such city or town clerk so as to be received within such twenty days. The court shall hear all pertinent evidence and determine the facts, and upon the facts so determined, shall annul such decision if found to exceed the authority of such board, or make such other decree as justice and equity may require. The foregoing remedy shall be exclusive, but the parties shall have all rights of appeal and exceptions as in other equity cases. A complaint by a plaintiff challenging a subdivision approval under this section shall allege the specific reasons why the subdivision fails to satisfy the requirements of the board’s rules and regulations or other applicable law and allege specific facts establishing how the plaintiff is aggrieved by such decision. The board’s decision in such a case shall be affirmed unless the court concludes the board abused its discretion in approving the subdivision.

This section is as significant for what it removes as for what it adds. The removal of the court being empowered to hear the entire case and to substitute its own judgement for that of the Boar is significant. This existing wording provides protection to both the developer and the abutters. Either one needs to present its case to the court, whether challenging an approval or a denial of a subdivision. Ultimately leaving the court in the position to determine if the law has been followed.

The change deals only with approval of a subdivision. It tilts the table in support of decisions to approve projects. The process for appealing a denial is left as is. This places a community in a position of having to provide a greater level of proof that a denial is appropriate than for an approval.

So, this act essentially establishes mandatory determinations for judges upon challenges to subdivision approvals. It seems we want to give the public as little rights in the process as we can. Seems like we are heading down the path of our neighbor to the north which allows only 30 days to challenge a building permit which violates zoning, even though the builder does not have to start building until the 30 days are over. Many of the sections proposed for modification in the Land Use Partnership Act should be left alone. This is one such illustration. I have seen no problems in the courts operating under the current legal framework. Obviously this change stems from developers who feel that the judicial system is too burdensome and abutters should have no rights. Look closely, it only deals with dismissing complaints for subdivision approvals! It would seem that similar deferral to the board’s decision should be made for denials, but it is not. Awful, awful, awful, very anti-community and anti-abutter.

This particular issue is also not just a planner's issue. It is an issue for every resident of the state. The change is limiting the legal rights of abutters to challenge what may be an incorrect decision. And, the incorrect action may not be the basis of the reason for the court upholding its decision, only whether the Board abused its discretion.