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.