Chapter 40B and the Ballot Box

Affordable Housing, obviously it is needed. How we get there has become a hot topic. Chapter 40B, the Massachusetts Affordable Housing Law is being brought to the ballot box. This will have significant ramifications.

If it loses, many people in need of affordable housing will be disadvantaged.

If it survives, the environmental controls needed to ensure orderly development patterns will be destroyed.

If it loses, some form of substitute is almost guaranteed. That substitute could be a new, more community friendly statute which has been called for for years. Or, it could be a more onerous replacement imposed through judicial mandate.

If it survives, backers will be strengthened in their resolve, as Chapter 40B will now have the backing of a popular mandate. A mandate that could based upon low mid-term voter turn-out.

If it loses, obviously, the same low mid-term voter turn-out could be used to support the creation of replacement legislation not much different than what is present today.

If it survives, there will be less of a push to fix all that is wrong with the present Chapter 40B.

It is going to be a tough decision. When I walk in to that voting booth in November I am not clear which way I will vote. I believe in affordable housing. I do not believe it needs to be balanced such that every tiny out of the way community needs a project under the statute.

Chapter 40B needs to be fixed, more control given back to cities and towns. The Ballot Box cannot fix bad legislation. However, a vote to keep Chapter 40B almost ensures it will not be fixed. We are at the midnight hour, one way or the other. A vote one way does not support my head or my heart, but a vote the other way is similarly disruptive.

Affordable housing at the cost of environmental protection. Or environmental protection at the expense of affordable housing.

Protecting the Public Trust

There have been court cases racing around the country looking at the extent and limits of the Public Trust. In Florida, the U.S. Supreme Court ruled that, when filling submerged lands, the state maintained rights to the formerly submerged property. It noted that, while property owners may have rights to lands created by natural accretion, the formal action of filling tidelands provided no such benefit.

A similar case in Massachusetts has just been decided. The SJC decided today that the State maintains Public Trust Rights to filled tidelands, even ones filled over a century ago. This case is important to most coastal communities. Chapter 91 protects the public's interests in filled tidelands that are seaward of the first street. This provides the protection of public rights to the presently submerged lands.

Given the amount of public and private beach nourishment that occurs in Massachusetts, it will be interesting to see how this all plays out. It is clear that in this case, the Commonwealth felt it was important to maintain public rights. With most of our beach front areas being subjected to restrictions by adjacent private property owners that limit public passage for fishing and fowling, one has to wonder if beach nourishment projects could actually open these previously submerged lands to greater public access such as in the Florida case?

Clean Air, Clean Water

As you read this post, the Gulf Oil Spill grows worse and worse. Even in the wake of this disaster Big Oil seeks changes to many federal laws which will weaken air and water protection policies.

While both the Clean Air Act and Clean Water Act have their shortcomings, it is clearly not time to dismantle either of them. Rather, it is time to call upon Congress to fix the problems and strengthen these two critical pieces of legislation.

The Clean Air Act is currently under attack. Oil and coal interests are pushing to weaken the act in the name of "national security." While gaining access to our resources may be important to "national security" the resources we seek to harness needs to be in the best interest of all citizens of the country. Rather than changing laws to ignore the external costs of oil and coal, we need to recognize and properly price these external costs. Only when we recognize full cradle to grave costs, will we see our abundent, clean energy sources as clearly being superior to increased reliance on oil and coal.

Follow the link and join Repower America in pushing for a new energy future.

"Life, Liberty and the Pursuit of Happiness" An Argument Against Zoning?

It is always interesting how the Constitution, Federalist Papers, and now even the Declaration of Independence get drawn into the land use regulatory sphere. In the linked opinion letter, the writer uses the basic principles of the Declaration of Independence to support an anti-zoning position.

"We hold these truths to be self-evident: that all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed..."

The letter writer opines that their "pursuit of happiness" extends until it infringes upon the rights of others. It is the writers belief that it is their right to develop property free of any restrictions until it is proven that they are harming others.

They seem to lose the point that the pursuit of happiness by one individual may, necessarily, conflict with the pursuit of happiness by another. My "happy" asphalt plant might conflict with his "happy" housing development. From these inate conflicts, whether in land use or just about any other endeavor, made us into a land of laws.

Zoning provides a framework within which people can pursue a level of happiness, with an understanding that their neighbor's pursuit will be in a similar vein. As I noted in a previous post, there is no conflict between land use regulations and the goals of our founding fathers. These conflicts are generally only found when the desires of a special segment attempt to ignore society in general to tie into the exemplary writing of our founders.

And Yet They Still Oppose Wind Power

They do not believe the radiation is from VT Yankee, but then blame Chernobyl....

Radioactive Fish Near VT Nuke Plant Deemed Common

Given the problems in the Gulf, and the leak at VT Yankee this past week, I am hearing strains of the Beach Boys "Don't Go Near The Water."

Imagine a Land Development Process Like This….

Imagine a land development process where months if not years of planning, review and permitting could be undone in short time. That appears to be a part of the land management process in Israel. The “Sheves regulation” allows a development permit to be modified increasing development intensities by 20%.

The story can be found here: Back door to build more.

The process seems more convoluted than even Massachusetts Chapter 40B in that the process plays out AFTER the normal permitting process has been completed. The story reports as much as a doubling of building heights under “Sheves” permits. This approach is quite unbelievable, and seems to defeat public participation and any semblance of fairness.

History Repeating Itself

As planners we deal with numerous social issues. Homelessness, overcrowded housing, lack of adequate employment opportunities, etc. Often we find ourselves on the frontlines on these issues or even in the crossfire. Whether it is the changes in Arizona’s laws as they relate to undocumented aliens, the case about the college student or various factory raids that have occurred, we can find precedent for these actions in our nation’s history. Economically hard times seem to increase these tensions.

The immigrant groups that historically have drawn the most attention have been those that arrived in the deepest levels of poverty. Whether it is the Irish of the Potato Famine, Asian boat people, or the present influx of Hispanics from South and Central America.

It is interesting when one reads a historical piece about some of these groups, their habits are all generally the same, and the reaction of U.S. society is pretty much the same. For instance, the following items illustrate almost a name your large immigrant population list:

• “Upon arrival in America, the ____ found the going to be quite tough.”
• “With no one to help them, they immediately settled into the lowest rung of society and waged a daily battle for survival.”
• “…their city was undergoing nothing short of an unwanted "social revolution"….”
• “______ took any unskilled jobs they could find such as cleaning….”
• “…they fell victim to unscrupulous landlords….”
• “There were only a limited number of unskilled jobs available. Intense rivalry quickly developed between the _____ and working class [American]________ over these jobs.”
• “Their resentment, combined with growing anti-_____ and anti-[religious]_________ sentiment among all classes in ______ led to 'No ______ Need Apply' signs being posted in shop windows, factory gates and workshop doors throughout the city.”
• “Wherever they settled, the ______ kept to themselves to the exclusion of everyone else, and thus were slow to assimilate.”
• “Militant anti-[immigrant]___________ formed a third political party nicknamed the '______' seeking to curtail _______ immigration and keep them from becoming naturalized Americans in order to prevent them from ever gaining any political power.”
• “Throughout America, anti-_____ sentiment was becoming fashionable.”

This history truly could apply to just about any major immigration group. These immigrants all took on the menial jobs many others would not touch. Today it seems fine to many to take advantage of immigrants by giving them temporary H2B visas to allow them to work in motels and restaurants cleaning toilets and such. But, it seems society does not want to provide these immigrants with any opportunities to advance themselves.

As planners we see both sides of this equation. With any affordable housing or public transportation project we hear the “we do not want those types in our community." We find ourselves having to fight the mentality that affordable housing or public transportation breeds crime.

From where I sit, I fear the current economic and political climate is throwing us back and causing us to lose almost a hundred and fifty years of progress and understanding.

By the way, all the passages above came from a piece about the Irish, the Potato Famine and societies reaction to the arrival of Irish into our communities. Did you read them and place some other immigrant group into the blanks?

Planning Funnies? Maybe Not....

Citing the Constitution and the Federalist Papers planning and zoning has come under fire. Maybe my Political Science background will really come in handy after all.

It is not a new thing to see the Constitution cited when fighting land use regulations. However Penn Central and several other major cases have clearly illustrated that some level of regulation is necessary and allowable. Obviously we will always be dealing with those who feel that any regulation that limits what can happen on a property results in taking of their property. In the Winona example, the Constitution is used to fend off new flood zone restrictions as well as protections for the tops of bluffs. As we have all seen in the course of the first several months of 2010, whether in Massachusetts or Tennessee not protecting against inappropriate construction in at-risk area creates hazards to personal property and safety. Risks not just borne by the individual property owner, but all of society under some conditions.

Bringing into play the Federalist Papers is something new that I have not encountered before. The citation in the Hutchinson, Kansas situation:

"Federalist Papers" (No. 12, Nov. 27, 1787), "The prosperity of commerce is now perceived and acknowledged, by all enlightened statesmen, to be the most useful as well as the most productive source of national wealth; and has accordingly become a primary object of their political cares."

The concept argued in this passage is being used to argue that the pursuit of wealth outweighs everything. It is being used in Kansas to argue against home occupation restrictions which would otherwise prohibit manufacturing type uses within residential settings. Essentially the pursuit of individual wealth, at the expense of ones neighbors is being argued to be more important than the protection of ones neighbors individual property rights.

These two cases provide an interesting juxtaposition. I could take the argument being made in the Hutchinson, Kansas situation to argue that by allowing a home occupation that includes a machine shop or other noisy use, the City of Hutchinson is taking my property value as it relates to how I enjoy my own property. I know some will argue that this is a stretch of the takings clause in the Constitution, but it is not an unusual one - look at most challenges to permits allowing development and the appellants are arguing exactly that, diminished property values.

Looking back at the Federalist Papers, James Madison noted (Number 10, November 22, 1787)

"But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government."

So, Madison noted that property is not equally distributed, such unequal distribution was a cause for problems between people, and that resolving these conflicting interests was a necessary part of governmental regulation. One could say that Madison anticipated and addressed Hamilton's commerce issues.

Further on, in Federalist Paper Number 54, the issue was addressed again:

"Government is instituted no less for protection of the property, than of the persons, of individuals."

This document, which is credited to both Hamilton and Madison, also notes the role of government in the broadly stated protection of people and property.

The conclusion, both Alexander Hamilton and James Madison seem to have anticipated the inevitable conflicts involving property and protecting both people and property. In crafting the Federalist Papers, which helped to form the Constitution and is used to interpret the Constitution, they anticipated the need for legislation to protect property and people. Whether it be the flood zone and bluff area protections under discussion in Winona or the home occupation discussion in Hutchinson, when taken as a whole, neither the Constitution or the Federalist Papers really provide much basis to support those opposed to these proposed zoning controls.

Oil? Wind?

Last week Cape Wind passed a major hurdle. No sooner had it cleared that hurdle than a number of opposing voices came forward pushing for legal challenges.

We are all also reading about this massive oil spill in the Gulf. Most recent analysis suggests that this spill now exceeds the Exxon Valdez spill. All the while the spill continues to flow.

The opposition to Cape Wind comes from many angles. One is the potential impact of these platforms on sea life.

Dead turtles and other sea life have started to wash up along the Gulf Coast from the current oil spill. Reports are that if the slick is caught up into the Gulf Stream Current the spill will move out of the Gulf and into the Atlantic.

Cape Wind is reported to "occupy" 25 square miles. Of this, about 54 acres will be truly physically occupied.

The 1975 "Florida" oil spill in Buzzards Bay impacted 5,000 acres of ocean bottom and 500 acres of marsh. These areas illustrated "95% of the animals collected were dead." The more recent "Bouchard 120" spill impacted 90 miles of shore line.

So, why are these planning issues? The reasons are clearly many. First, economically, as many have stated, we need economic independence. Yes, more oil development can provide that, but at what cost? Is it appropriate for other entire industries to be injured when a large or small spill occurs? How will the fishing industry cope in the Gulf? How about the vacation industry when pristine white beaches are spoiled by oil?

Wind may not be as economical (in direct costs) as oil. But environmentally, it appears more sound. When oil starts to pay for society's costs (air pollution, water pollution, health issues due to smog) the two energy sources start to balance out.

Cape Wind, on-shore wind farms, solar farms, geo-thermal all need to be part of our future.

Of course, to ensure clean energy meets "clean" standards, we also need to ensure that these facilities are manufactured within the US as our environmental control standards for manufacturing exceeds those found anywhere else.

Now This is Different

Read this from CBS News

"Straw Man" Battles Zoning Law With Wall of Hay

Would our enforcement laws provide us similar considerations?

Hollow Victory - Water Conservation A Needed Program

I was reading the following article about water shortage issues in Atlanta, Harvesting rainwater to east Atlanta's water woes, when I was reminded about changes that the state of Massachusetts attempted to implement in the water withdrawal registration renewal process recently. You can read about that case here.

Starting with the case in MA. The courts found that the state had acted improperly in attempting to enforce conservation efforts on the renewal process for existing water withdrawal registrations that were simply being renewed. The court noted a few things, first, that the state could impose water conservation on anything that required a permit (permits being differentiated from registrations in that permits were issued for new water withdrawal requests and registrations were to continue withdrawals at levels that were in existence prior to the original state permit/registration process). The court also felt that the state could also place conservation requirements on registration renewals, but needed the regulations in place to do so. Ultimately, in January of this year, the court found that the state had not established such a regulation.

I see this as a hollow victory in two ways, first the towns that challenged the state simply delayed the inevitable. While ruling for the towns, the court clearly found the state could do what it had intended, it just had to follow the proper process. It is also a hollow victory as water is a limited resource, and conservation measures are needed whether imposed by the state or not. If existing local water use is not controlled there is limited water that will be available to support economic growth. Ultimately it means these towns beat the state, but did not really help themselves.

So how is this tied to the Atlanta article? Ultimately, the water conservation efforts we adopt will need to look at how we can contain the seasonal fluctation of rainfall, collect it, and then reuse it in the drier times of the year. This means finding ways to harvest run-off (which could reduce the flooding concerns we have experienced here in the Northeast this past spring), containing it, and then using the collected water for summertime irrigation - and removing irrigation from being a draw on the public water supply.

Some areas can clearly look to irrigation ponds. But this is not necessarily a good solution in residential neighborhoods (mosquitos illustrating one of many issues to consider). It may be more appropriate to consider requiring water containment as part of site design, whether for single family homes or commercial plazas. Underground cisterns could provide significant water storage opportunities. These devices could contain water that would usually runoff a property into our rivers and streams reducing flooding, and provide irrigation opportunities in drier months. This irrigation also providing some opportunities for groundwater recharge during these dry periods.

As we planners in MA start to think about meeting this 65 gallon per capita water use limit that was imposed prior to the court case, we need to start to build into our planning discussions real water conservation measures.

Economic Stimulus Bill

The Massachusetts State Senate yesterday passed SB 2345, a bill aimed at streamlining state permitting, getting rid of duplication of permit requirements across state agencies, and to make it easier to move through the state permitting process. The goals are clearly laudible.

Having not read the entire bill as of yet, I will withhold passing judgement. However, the bill is not without its issues. One of which I will discuss below.

Section 122 of the bill as posted on the Senate's website (SB 2345) includes provisions extending the life of numerous local permits, licenses, variances, etc. These permits are extended for a period of three years beyond the "normal" life of the permit. Thus a permit for one year, becomes one for four years, a two year approval becomes 5, and so on.

A few highlights of what permits are extended:

• Chapter 21 extends, among other things, wastewater permits;
• Chapter 40 governs all municipal regulations and by-laws other than those specifically identified in other chapters;
• Chapter 40A extends all special permits, variances and other project approvals regardless of the fact that certain provisions in chapter 40A specifically limit the maximum period a permit is valid for and identifies certain actions that could lead to the rights granted in a permit to no longer be valid;
• Chapter 40B extends all Comprehensive Permits for an additional three years;
• Chapter 91 governs all waterways licenses; and
• Chapter 143 governs all building permits.

Finally, Section 122 includes the catch-all phrase, "and any local by-law or ordinance" which will extend its reach to any local permit or license a community may have adopted under its home rule powers that could be considered to impact "development." "Development" being very broadly defined to include the division, excavation, and filling of land, construction or change of use of structures.

Process already exist for addressing delays in the construction process. These processes involve returning to the permitting agency and having a proper determination made as to whether the provisions and findings surrounding the original approval are still valid. This proposal by-passes that process and for the next few years, overrides other local actions such as zoning changes which may have modified the final plan approval or outright prohibited the proposed use.

In my opinion, Section 122 should be removed. In its place, the state might want to urge communities when considering extending a lapsing permit, weigh the current economic situation. Section 122 does not do anything to immediately stimulate the economy. In fact, it supports actions that might delay new construction projects by extending a time-frame for construction which may encourage developers to wait for a better economic climate.

Chapter 40B and Land Use Reform

The next few months should be quite interesting. Two sides are squaring off on the question of whether Chapter 40B should be repealed. Many of the same parties are involved in discussions of whether or not the current land planning structure in the Commonwealth should be overhauled.

All to often in these discussions the good ideas get mixed in with not so good ideas, and we wind up with campaigns that are as much innuendo as fact.

Take Chapter 40B. There is little argument that Chapter 40B has created housing. There is quite the debate though as to what it has meant to housing affordability. One side wants you to consider the pure numbers of housing units created. The other side argues the growing affordability gap illustrates the failure of the system.

Looking at the arguments, both are right. Chapter 40B has succeeded in seeing affordable housing built. Chapter 40B has also promoted the construction of between 3 and 4 market rate housing units for every affordable housing unit constructed. If 75% or 80% of the units constructed are market rate, it becomes quite apparent that Chapter 40B is contributing to the continued growth of higher end housing in numbers larger than that of the affordable units.

Moving to Local Planning and Zoning, much of the same issues play out. Communities have many diverse interests. Many of these are directed by various state or federal mandates. Here are a few examples:

• Recent flooding has illustrated the problems with growing urbanization. Fewer areas are available for storm water to absorb into the soil. Federal flood initiatives direct communities to work on plans to improve storm water storage for flood management. Various forums have even suggested undeveloping areas to reduce flood risks.
• We are also all directed to develop and maintain local Open Space and Recreation Plans. These plans direct communities to provide particular amounts of open land areas for recreational purposes based upon the number of residents. These plans are also directed to promote methods to implement open space initiatives in the State Comprehensive Opens Space and Recreation Plan. Again, planning documents directed to protecting development.
• The state has mandated towns develop housing creation plans. These plans are intended to identify the strategies cities and towns are going to pursue to meet local affordability targets. When developed locally, these plans can be crafted cooperatively with the two planning projects noted above.

Recently, efforts have started to push to reform the state planning act. These efforts have come from two sides, much like under Chapter 40B. There is the side that calls for improving the planning and zoning process to give communities more control over their own future. This control coming in the form of new local planning requirements, and improving the zoning process.

The alternate proposal calls for changes to planning and zoning focusing on a development approach to planning and zoning, as opposed to the more traditional community vision approach. The push for these efforts have come from the side of the equation that feels that local visions, local development controls, etc., are stymieing the state economy. To some extent, the changes proposed ignore, if not walk all over, the other local mandates.

The arguments over planning and zoning reform face the same issues as reforming Chapter 40B. One side strongly believes that the system is broken and that communities cannot properly address the growth needs of the Commonwealth. The other side argues that the current system is broken and that provisions such as approval not required land division, and generous grandfathering rights destroy local planning abilities before a community could ever properly develop a city or town vision.

While both sides agree that provisions in the current planning and zoning structure in the state need to be fixed, there is clear disagreement on what is broken and how it should be fixed.

The Chapter 40B discussion ought to be interesting, if not for any other reason than to learn if community interests or land development interests will prevail. One sure thing, a reasoned approach to affordable housing will be the ultimate loser. This reasoned approach can only come about by looking at the broken system, and developing a consensus that promotes properly created affordable housing.

More on Erosion and Takings

A New York Times article, A Stake in the Sand, provides more information on a subject I wrote about back in December. Given all the flooding issues I have been reading about lately, I find some of the landowner arguments humorous. On the one hand we have the state taking steps to protect private property owners from the destructive forces of the sea. In doing this, the state is establishing a stake in the newly created beach area (formerly submerged) for the public. The private property owners, who were at risk of losing their homes without the government intervention are arguing that they should be the sole people able to enjoy the benefits of this public investment, adding to their private land holdings, and ultimately their financial value.

I find the humor in this, in that the recent flooding in the northeast has pointed out just how much we tempt fate with our land development. We build in flood plains along our rivers. We build on top of coastal dunes. When it is suggested that these areas are unsafe, and that these areas require additional flood insurance we scream and shout about the expense. But when we are flooded, or washed away, we turn around and ask the government to cover our rebuilding expenses, and to protect us from the ocean or rivers.

The great-great-grandson of the founder of Destin said it right:

“people didn’t build over there, because only a fool would live over there....”

High Speed Rail and Sprawl

I saw this article today and had to share it, High-Speed Rail As a Conduit of Sprawl. Years ago, when I wore my Transportation Planner hat, I made similar assertions regarding Commuter Rail services between Boston and Worcester. I argued, based upon data for residential development patterns along other rail lines, that the rail network between the two cities would open up new areas between them for additional sprawl. I based this upon basic travel times. If the average commuter is willing to spend XX amount of time commuting and we open up new areas to that travel time, why wouldn't you expect people to locate in those areas?

When I offered this argument, nearly twenty years ago, I was soundly criticized as being anti-transit and anti-rail. So i feel somewhat vindicated by reading quotes such as the one below. The authors are correct, before we expand high speed rail, we need to address suburban and exurban land use.

“High-speed rail will simply add another layer of access to the far-flung suburbs/exurbs and Central Valley, resulting in more mass-produced subdivisions,” warns Robert Cervero, director of the University of California Transportation Center and author of Development Around Transit.

Approval Not Required and Zoning Freezes

An interesting article out of Easthampton, MA, Easthampton Landowners move to 'defend' Route 10 property for possible development. Without getting into the merits of the zoning proposal, the article is quite revealing relative to the absurdity of grandfathering in Massachusetts. These Approval Not Required Plans lock in land use "rights" even when, in the words of one land owner, "There are no plans to develop the parcel immediately."

It really is amazing that one can vest "rights" for something that has not been even conceived in ones imagination. This truly illustrates the need to do away with the "Approval Not Required Plan".

Fair Housing Problems - Giving Children a Place To Play

A couple of news stories:

Children's play restrictions spur suit

Single moms file bias complaint against condo manager

Lately I have been seeing more and more stories about people in multi-family condominium living arrangements having problems. Obviously living in the close quarters such as a condominium project, where there are limited private yards is going to lead to a conflict between those with children and those without. Unfortunately, it appears that these conflicts are leading to attempts to drive out children.

As planners this private conflict becomes also a public one. Many condominium projects come forward as means to either protect open areas on a site, or to make allowances for more affordable housing. Often, achieving these lofty goals, leave behind the idea of creating a user friendly environment.

As we review multi-family housing, as planners we need to remember that we are placing people in very close quarters. We need to remember that the big back yard of a traditional single family subdivision is lost, in exchange for common area. These common areas need to be designed to provide for areas where different residents can find solace, or active entertainment. A project with multiple bedroom units clearly needs to include areas specifically designated for children to play. These areas need to address areas for playing baseball or basketball or skateboarding. Things that often take place in lower density neighborhoods.

The designs should also look at more quite, contemplative areas. Areas for the older, empty-nest residents to enjoy away from the hustle and bustle of children play areas.

Passive open space, perhaps needs to be traded off to create these active areas in condominium projects.

As the two situations described above points out, we also may need to include conditions in site approvals that protect the rights of children to play.

This Is Just So Wrong On So Many Levels

I subscribe through RSS to Planning and Zoning Headlines. It provides me with an opportunity to see news reports from around the country on various planning issues. I have found it to be quite interesting to read about various planning initiatives in other areas. It is quite amazing the number of different news stories that come up everyday. However, occasionally an article comes along that makes you ask "is this for real?"

The following story out of Greensboro provides one such example, Zoning Says Students, Chemicals a Good Mix. The article clearly points out the importance of Master Planning, and sticking to it. To think that residents would essentially use other people as the "canary in a coal mine" to try to force out a long-time business is astounding. The fact that the zoning panel in the article actually agreed with the neighbors who supported a rezoning so that people would be living on top of a chemical plant is dumbfounding.

No one in the article is quoted as saying the paint factory should be rezoned. The description of the land uses in the article clearly illustrate that the heavy industry zoning for the property is appropriate. The idea of rezoning land, located on top of such a zoning district to any form of residential seems mistaken.

Perhaps We Need a New Approach

Recently the Barnstable Old King's Highway Historic District Committee denied the erection of a wind turbine at Cape Cod Community College. This action was not an isolated incident as there are examples of similar actions across the country in historic areas. Some states have even taken to stripping historical commissions of their authority to review wind and solar installations.

Perhaps, proponents of wind and solar need to pursue a new approach. The National Park Service, among many others, has raised concerns about the impacts of acid rain on historic structure, What are we doing about acid rain?

Perhaps, we need to pursue this angle. We have focused much of our discussions on the energy savings - and dollar amount - saved by entities seeking to use solar and wind in historic areas. It might be time to quantify the savings in tons of pollutants removed, reductions in acid rain producing compounds in the environment.

As planners we might want to direct our historic committee members to read a few of the documents that are out there on the impacts of acid rain, such as Acid Rain and Our Nation's Capital which discusses the impacts of acid rain on limestone and granite buildings. We need to direct them to the impacts on homes, Acid Rain's Effect on Your Home, to illustrate the increase in maintenance costs, costs which can be quite extensive on historic properties. We need to point out, ultimately, that acid rain is directly related to fossil fuel burning for electricity.

We need to point out that, for every megawatt of energy produced by a wind or solar installation, 20 tons of sulfer dioxide and nitrogen oxide (the two leading contributors to acid rain) are avoided.

Finally, we need to point out that the same chemicals which cause acid rain also produce smog and haze, ruining most peoples views of our lovely part of the world.

Perhaps this approach needs to be explored prior to stripping historical commissions of some of their review powers.

What Goes Around, Comes Around

The American Planning Association put up one of its historic Planning Advisory Service documents this month for all to consider, Hot Rods, Car Clubs and Drag Strips. After reading it, I was surprised how easily it would be to substitute one of today's more popular activities, off road recreational vehicles, for the hot rods.

The PAS report, from 1955 discusses how popular hot rods and drag racing were becoming in that era. It provided information on how some communities were adapting to these new demands by creating areas for car clubs and even sanctioned drag strips.

Today, the same could be said about the two, three and four wheel off-road recreational vehicles, except that the idea that areas should be set aside for sanctioned activities.

As planners, we should think about the needs of everyone in the community. Do we have significant, moto-cross type activities occurring? Do they have sanctioned, safe facilities? Can the community find a location for such a facility? If so, perhaps the same approach as took place in the 1950's for hot rods and drag strips should be taken for these newer activities.

Just something to think about. We can learn from our past, and repeating these lessons may not be a bad idea.

What goes around, most certainly comes around when it comes to recreational activities.

Affordable Housing Change

The headlines are screaming it:

Affordable Housing Changes Pushed

Town Struggles with Affordable Housing

Suggestions Abound on Affordable Housing Rules

Governor Freezes Affordable Housing Rules

Unfortunately, these do not come from here in Massachusetts.

Affordable Housing Changes Pushed In New Jersey

Mount Laurel Struggles with Affordable Housing

Suggestions Abound on Affordable Housing Rules

Christie Freezes Affordable Housing Rules

These stories out of New Jersey illustrate the battles that are ensuing over housing development and growth. Mount Laurel is the focal point, as always. The town that was the landmark fair housing court battle both in the 1970's and 1980's. In their recent struggles, they have met their initial obligations. Prepared a plan for achieving the "third round" rules, only to find that the bar was raised substantially further.

Mount Laurel is near, if not at, build-out. Achieving targets for over 1,400 new housing units throws out the concept of build-out.

Here in Massachusetts, the bar is about to be raised in a similar fashion. The upcoming 2010 census will establish new base housing counts. The number of units of year round housing will surely increase, even in "built out" communities. With the completion of this new count, the bar will go up.

As we talk about the future of Chapter 40B, and it is being talked about, just not at the level it is in New Jersey, we need to recognize that the new census is going to generate significant ammunition for both sides. Total housing units created and the ratio that is deed restricted affordable will become new fodder. Towns that are near 10% will find the gap, quite likely grew once again. Pro-40B voices will be quick to point out the increase in the gap. Housing growth rates will illustrate the continued loss of open land, growth of housing in areas not served by transit or near job centers. Anti-40B voices will obviously pick up on these issues.

It is time for everyone to sit down. Chapter 40B, the State Housing Inventory, and which houses count towards "affordability" need to be hammered out. Cities and towns that are inherently affordable should be recognized. Partnering programs, like use to be in existence in New Jersey, need to be considered. The zoning override, or "builder's option," needs to be reigned in. This will require the Housing Appeals Committee to rethink its process and its philosophical position. High density, low income, housing in the wrong spot does not make sense. Similarly, the lack of work force housing costs everyone in the end.

We need a solution. What we have is broken, from whichever side of the discussion you might fall on.

Etcetera, etcetera, etcetera... Where's the Outrage?

Saw this in today's paper, When the signs say 'walk'. A major commercial real estate speculator walked away from $4.4 BILLION in loans. Dropping that debt, ultimately, on all of us as part of the bank bailout. The speculator walks away with other investments worth $33 BILLION.

Essentially, the investors took a risk. Buying rent controlled property, with the idea that they could escape these controls and sell the properties at a large mark-up. Unfortunately, they overpaid for a fully rented, performing property. Paying more for the project than the rents could support, with the idea that they could quickly flip the housing for quick cash.

They lost the gamble, and we will all pay.

"Affordable Housing" It Will Just Blow Your Mind

A tragic story out of West Springfield brings to the forefont some of the decisions, which have been being made by state housing officials for years. In the article it is reported that "28 rooms in the Clarion were rented by a state housing assistance program."

If you check the Clarion website you find the cheapest rates at the West Springfield site is $79.95 per night (5 night stay). A one month stay, about $2,400 per room, could rent at least two apartments in the surrounding community. The full cost of the 28 rooms, about $67,200, could house more than double the people served for the cost.

The Boston Globe has also reported on these expenses, A room to call home. The Globe reported that the state was spending on average $85 per night for rooms, and people were staying for as long as three months. At a expense of $2 million per month - $2,663 per month per family. The Globe goes on to point out that these situations lead to increase crime calls (MassLive reports gang members taking advantage of the rooms), and safety violations.

While many people simply oppose affordable housing programs, the vast majority understand the need to meet the needs of those in need. However, waste, such as is illustrated in these two stories lead to outrage that ripples into opposition to all efforts. Understandably, emergency shelter is needed, but the goal needs to make these stays as short as possible - perhaps stays as short as one week, moving people to permanent housing in days, not months.

Replace The Citizen Volunteers With Paid Professionals? A Bad Idea.

Ray and Maria Stata Center, designed by Frank Gehry, photo from (Harmony and Home)

Planetizen had a link to the following article out of England, Amanda Levete: why architects know best. The article suggests that architects should be making all land use decisions and that planners, in particular citizen planners, were not capable of making sound decisions.

The proposition that citizens cannot make the appropriate decisions for their communities seems outlandish. As a professional planner, I feel properly versed in advising my citizen planners on local committees. However, only having a professional attachment to the communities I have either worked in or for, I would hardly feel positioned to be the final arbiter on the tastes of the community.

I have worked with many architects, as with most professionals, they have their beliefs as to what is best. These beliefs often do not mesh with zoning controls or neighborhood style. Even the article suggests that contemporary style is lost under the current citizen planning regime. Perhaps, contemporary styles are not what the community wants, but instead wants to connect with its historic style.

I also found it interesting that this article came out about the same time the Boston Globe Magazine ran the following, In praise of ugly buildings, an article about how the much detested architecture in downtown Boston represented the "contemporary style" of its era.

Housing Recovery - A Plan

Maybe I am becoming more bleeding heart as I get older, or maybe it is just my sense of moral outrage is growing. Today's Cape Cod Times included a story, Foreclosures rising on Cape, that illustrates the problem with the current bank bailout plan.

GMAC Financial Services has received $16.3 billion in banking bailout financing. Essentially you and I paying them for their losses on loans. That funding has not trickled down in any fashion to the homeowners who have really suffered the losses. Losses in jobs and home value due to bank and speculator fraud. Bank fraud due to deceptive lending practices and predatory lending. Speculators, as they artificially drove up home values.

I cannot find any specific values related to GMAC's bad loans. One discussion suggests it is about 10% of its $189 billion in assets. If we took this $19 billion in bad assets and considered most of these, while losing value, still held some value (the foreclosure sale price), the government bailout money would seem capable of opening the door to mortgage re-writes and principal reductions. The end result is a program that supports the banks and the property owners. With the $16.3 billion government gift to GMAC being used to support the real estate market and not to reward business executives who managed to dump their bad business decisions onto all of our banks.

National Housing Policy - Redux

In my post below, I had stated that the bank bail-out would have provided a better service to the country if the funds had actually gone towards paying off a portion of the balance of mortgages that were in default. Such a program would have allowed people to stay in their homes, rather than being forced out - and either leaving empty bank-owned properties everywhere or dumping homes on the market at deep discounts. Today I saw the following New York Times Editorial (from January 4th) This Year’s Housing Crisis. Quite clearly the commentators I was responding to - those supporting booting people out of their homes - are not gaining mainstream support. Unfortunately, neither is a housing program based upon saving people and their homes.

National Housing Policy

The following article from the NY Times January 1, 2010, U.S. Loan Effort Is Seen as Adding to Housing Woes , is one of several recently critical of the federal homeowner "bailout" program. The program provides $75 billion to rewrite and restructure home loans in danger of foreclosure. This amount, while quite substantial, is small when compared to the $700 billion bailout provided to banks, Oversight of Bank Bailouts Criticized, to address esentially the same mess.


The banks, essentially, were provided funds to cover bad debt from the mortgage meltdown. The homeowners, (in perhaps a simplistic vision) many whose debts were probably part of the ones banks were bailed out of, were provided the opportunity to re-write their loans. Little, if any, of the actual debt has been forgiven.


Now, we are seeing comments from banking and real estate interests condemning efforts to help these homeowners. The suggestions are that the government should allow them to fail, arrange short sales or allow people to surrender their deeds to the banks. Basically, they are suggesting we get to the end-game quickly so that the building banking community can get back to work.


What's wrong with this picture????

• As many community governments and residents can attest, banks are very poor property managers. Allowing vacant properties to become eyesores and neighborhood problems. (see Foreclosures spur neighborhood ghost towns)


• Foreclosures and short sales will further pull down property values, once again affecting the next round of properties.


• Where exactly will the builders find customers for new homes if an additional glut of housing is dumped on the market?


• Will we need yet another round of bank bailouts to recover from this idea?

Let's take a look at a few numbers, and draw a few conclusions. American Factfinder reports that there are 127,762,925 housing units in the United States. Of these, 75,363,085 are owner occupied. Of the owner occupied housing units 51,487,282 units carried a mortgage in 2008. Finally, the median value of all owner occupied housing was $192,400.

A HUD report, cited in Foreclosures in Rural America? Who Knows!!, reported that 5.3 million homes, or 10.8% of those carrying mortgages had been "in some state of foreclosure" in either 2007 or 2008.

Working off of the median value of homes nationwide, the total value for all foreclosures would have been a bit over $1 trillion. I have not been able to find any solid numbers but, if the total value of properties in arrears is in the $1 trillion range, and foreclosure starts within a few months of the first missed payment, the actual value people are behind on mortgages is considerably below the full value of the properties.

So, with $775 billion to bailout the housing market, a program to actually pay off the arrears on default properties, and restructuring mortgage balances may have been a better and cheaper long term strategy. Of course, strings would need to be attached to such a program, such as restrictions on re-sale without some level of government repayment, restrictions on refinancing to cash-out equity, and other credit management strategies. However, the strategies would be designed to keep people in their homes, not evict them.