Just A Town Planner

Only 15 Years Late

2011-10-09T00:03:00.002-04:00

Wow, way back, almost half a career ago I was part of the Greater Boston Clean Cities Program. We convinced the Boston MPO to put aside funds that created the first EV Pilot Program in the state. About 17 years ago EV charging stations were placed in Alewife and Braintree Stations in hopes of seeing these installed all over the Boston region.

I am glad to see the first private facilities being installed. I just want to know, what took so long?

Lenox Hotel installs EV Charging

Carless on Cape Cod: Expanding The Walking Area

2011-08-22T22:29:00.000-04:00

After walking for a few days I have noticed that in 20 minutes I can cover more distance, bringing my "market" area to about a mile from home. This brings our village center into consideration. Unfortunately, as with many villages on Cape Cod, the mix of uses lend themselves to the tourism market and not the day to day needs of area residents.

Yes you can find fine coffees and teas, sandwiches, pizzas and snack foods. But the people who live and work here must leave the area for their basic needs. Not to mention those who live in the surrounding neighborhoods. Overall, the village fails as a live-work-shop location.

Expanding beyond the 20 minute walk, to 30 minutes, brings a chain convenience store into play. Better prices, but still a very limited selection. The walk score of 20 sure seems generous, on a sustainability rating I think is far lower.

Carless on Cape Cod - Trash Day

2011-08-21T22:54:00.002-04:00

So Sunday is supposed to be trash day. We actually live within walking distance of the tansfer station by way of an old paper street. The right of way currently has a trail that is used by hikers and mountain bikers. So you would think that we could dispose of our trash without a car.

No such luck.

Our town requires you to be a "resident" of town to dispose of your trash. You would think that residency could be easy to show, after all there are so many ways to show residency. Not so fast. Those "non-resident taxpayers" don't deserve to throw their trash away at resident rates, thus the tax bill is not a valid measure for access to the transfer station. Voter roll, also unacceptable. The Town has chosen to use where you register your vehile, and every pass is tied to your vehicle.

No vehicle, no access to dispose of your trash. Car sharing programs (Zip Car) and rental cars do not cut it. you get to buy a pass based upon paying your vehicle excise tax

So trash day does not pass the carless test.

Carless on Cape Cod: The Farm Stand

2011-08-21T22:25:00.001-04:00

Walkscore.com gives our neighborhood an index of 20, this means we are considered "car dependent." Check out your score here: walkscore.com.

The convenience store I previously talked about is about 3/4's of a mile from our house. Walkscore shows the farm stand as a "grocery" as well. After being disappointed by the selection at the convenience store, we chose to walk to the farm stand.

From spring to fall this stand provides fresh vegetables, eggs and other homemade items such as pies, salad dressings and preserves. Since we did not find anything we wanted at the other store, we hoped for more luck at the Farm Stand. Today we were looking for potatoes, carrots, salad items and dressing. Found everything but the carrots, substituted zucchini as the days vegetable of choice.

Overall, at least during the growing season, we could survive on what we can buy at the Farm Stand. Walkscore also notes that the Farm Stand is only a third of a mile from the house. It could be a doable walk, even in the rain.

Carless on Cape Cod - The First Trip To The Store

2011-08-20T19:03:00.001-04:00

Now we start to test whether where we live can support a car-less lifestyle.

First, it is clear I cannot make my commute. I am 51 and well beyond the years I rode over 20 miles each way for work. So I start from the position that I must have a vehicle for the most basic of needs.

Taking the next step, what errands are possible by foot. The convenience store nearby advertises that it has "groceries." Well, you probably could sustain yourself, minimally, on the cold cuts and tv dinners, but the food selection is limited. There is no fresh fruit or vegetables to be found in the store. The store would hardly sustain a healthy diet and given alcohol products make up at least half the shelf space, it is more of a package store than the convenience market/grocery that it bills itself as.

Size wise, the store probably could serve as a grocery, but it needs a wider variety of food products. Its offerings are clearly limited by its clientele. Most in the neighborhood probably do not think of this store as a destination for meeting one's day to day needs. Needing to survive financially, it lives down to those expectations. In the end, one has to conclude that this store does not support a car-less of car-free lifestyle.

I guess this neighborhood is sinking fast into being one where a car is mandatory.

Carless on Cape Cod The 20 Minute Walk

2011-08-20T16:28:00.001-04:00

If you are carless, you need to fill your basic needs within walking distance. A good walk from where we live, in our 70's style subdivision, is about 20 minutes. Within this walking distance we find:

A convenience store which advertises they have groceries;
A farm stand, which, at least during harvest season can meet some needs;
The town transfer station: and
A pizza place.

Not too shabby at first glance. What is a within a twenty minute walk of your home?

Carless on Cape Cod

2011-08-19T23:07:00.002-04:00

Okay, here is the challenge. Think about what is available to you within a 20 minute walk. Can you meet your most baxic needs? Most will immediately realize they could not get to work. But, what else would you be deprived of?

Traditionally villages grew around their church, market and common services. So, until you stop and think about where you live, or find yourself temporarily carless, do the problems of modern day (Euclidean) separation of land uses become so apparent.

So, I challenge you park your car for a few days, put your T pass away, and see if you can find your basec needs within walking distance.

I will share our experiences. Give it a try.

Chapter 40B and the Ballot Box

2010-09-30T18:19:00.004-04:00

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

2010-08-02T16:44:00.002-04:00

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

2010-06-05T13:02:00.002-04:00

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?

2010-06-01T13:12:00.002-04:00

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

2010-05-30T19:57:00.003-04:00

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….

2010-05-23T22:28:00.003-04:00

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

2010-05-23T17:09:00.002-04:00

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....

2010-05-03T19:52:00.000-04:00

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?

2010-05-03T19:00:00.001-04:00

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

2010-04-18T21:35:00.001-04:00

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

2010-04-11T15:55:00.004-04:00

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

2010-04-09T12:22:00.002-04:00

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

2010-04-07T16:22:00.003-04:00

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

2010-03-24T18:35:00.000-04:00

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

2010-03-23T12:15:00.003-04:00

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

2010-03-15T18:00:00.004-04:00

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

2010-03-13T12:12:00.002-05:00

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

2010-03-11T18:27:00.003-05:00

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

2010-03-05T18:08:00.002-05:00

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

2010-02-15T13:30:00.002-05:00

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

2010-02-11T10:58:00.006-05:00

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?

2010-02-02T19:41:00.002-05:00

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

2010-01-29T13:35:00.002-05:00

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.

2010-01-25T13:55:00.006-05:00

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

2010-01-22T16:16:00.003-05:00

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

2010-01-07T15:09:00.002-05:00

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

2010-01-01T21:26:00.005-05:00

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.

How Would We Zone For This Today?

2009-12-28T21:54:00.003-05:00

I saw this article circulated by Planetizen, The High Cost of Ignoring Beauty, and wondered about some our more creative structures. Given the strictness of zoning, could uniqueness be foreclosed upon?

Hammond Castle, Gloucester Built 1920's

Searles Castle, Great Barrington, circa 1888

Usen Castle, Waltham, circa 1928

Blantyre Castle, Lenox, 1903

These are just a few of the Castles of Massachusetts.

This Land - Maybe I'm Old

2009-12-18T18:17:00.003-05:00

Heard a child, probably 5 years old singing "This Land." However, it wasn't the version we are all used to. I looked up the version, and saw discussions saying the parody has been around for years and sung, by kids in the hallways, in many schools. I even saw one post where Arlo suggested Woody actually wrote the parody.

The ideals of the original and the parody provide stark contrast.

This Land is Your Land, This Land is My Land

Whether we agree or not, these lyrics make a statement that the land, America, belongs to all of us, and we all have a stake in the country. In contrast,

This land is my land, it isn't your land

Provides us with a statement that the land belongs to the haves, and others need not apply. It could be viewed as a broad statement on slamming the doors on immigration (with or without proper papers), we are here, now close the doors on all others. Woody's original lyrics are all enclusive, the parody sung by a five year old, clearly exclusionary.

From California to the New York Island

From the Redwood Forests to the Gulf Stream Waters

This Land Was Made for Your and Me

The land is the whole country, it belongs to all of us. We all have a stake in its future. While definitely Woody had a socialist bent to him, the song was an inspiring one about how we all share a common fate.

I got a shotgun, and you don' got one

If you don't get off, I'll blow your head off

This land is private property

Might makes right, threat of violence. Quite the statement on its own, shocking when it comes from a 5 year old. Instead of This Land being a song about all of us being in this together, we get an anthem for private property and violence.

Beyond the context of the words being issued by a 5 year old, to which myself and several other adults listening shook our heads, one can think about many societal issues. From a planner's perspective, the Private Property Rights interests versus the Henry George thoughts that all private property value comes from government investments.

We actually see it everyday. One property owner strips or regrades their property and those down hill have to deal with the water that runs off the property. Their "private property rights" interfere with another's private property rights. The parody words for This Land and the whole private property movement it reflects flies in the face of the old cowboy adage Don't Fence Me In as reflected in the Cole Porter song of the same name which states, in part:

Oh, give me land, lots of land
Under starry skies above,
Don't fence me in.
Let me ride through the wild open
Country that I love,
Don't fence me in.
Let me be by myself in the evening breeze-
Listen to the murmer of the cottonwood trees,
Send me off forever, but I ask you please,
Don't fence me in.
Just turn me loose,
Let me straddle my old saddle
Underneath the western sky.
On my cayuse,
Let me wander over yonder
Till I see the mountains rise.
I want to ride to the ridge
Where the west commences,
Gaze at the moon till I lose my senses,
Can't look at hobbles and I can't stand fences,
Don't fence me in.

Avulsion, Accretion, Re-Nourishment, Sea Level Rise, My Head Is Spinning

2009-12-09T14:47:00.001-05:00

So I got curious about the law surrounding a news article this past week in the Cape Cod Times, Chatham land claim turns the tide. It seems that the breach of the Chatham Spit, and avulsion, has provided a windfall to nearby property owners through the accretion of sand on their properties.

So I got curious and Googled the question, about how the changes in land affects property rights and found that exactly that question has landed in the U.S. Supreme Court, Stop the Beach Renourishment, Inc., Petitioner v. Florida Department of Environmental Protection, et al. and here. It is a discussion that has people buzzing on both sides of the issue. On one side is the property rights people who want to protect the new beachfront property owners "rights" to beachfront property. On the other side are people who feel that restoring the lost beach area will provide future protection to the new beachfront property owners.

The case may have relevance MA should we ever codify the boundary defined as "Mean High Water." In Florida they have codified, post recent hurricanes that the present mean high water line as a property boundary defined as a new Erosion Control Line (ECL). Essentially the state has "taken" land that lies below the mean high water (essentially by the deeds land that now belongs to the public trust). The law allows the state to renourish beaches below the ECL. By establishing the formal property boundary as this new ECL and only providing easement rights to the water for adjacent property owners, property owners claim there has been a taking of their "land" as it has "taken" their waterfront rights after the state renourishes the beach.

The issue is also presently being played out in New Jersey Courts where there are several different issues progressing at once. First there is the City of Long Branch v. Liu case which involves a property owner whose land is being taken by eminent domain. He is seeking compensation not only for the upland area, but also for a beach area that was restored at public expense. The state courts, so far, have ruled that he has gained no personal value from the public expenditure. Separately there is a begining of another case known as Harvey Cedars and here. In this case, it appears that Harvey Cedars, NJ has issued an eminent domain easement taking in order to restore dunes. The dunes will be restored and the town will maintain control of the land for dune maintenance. As the MSNBC article illustrates, there are significant divisions between land owners. Without the maintenance some appear at risk of losing their homes to the ocean.

The Cape Cod Times article deals with accretion of sand. The accretion has resulted in "lands" that were formerly in the Public Trust being converted to private property. While generally, Public Trust lands cannot be taken by adverse possession, there are many deeds written in such a fashion that as the mean high water line changes, so do their property (and that of the Public Trust).

The Florida and New Jersey situations illustrate the problem, do we pursue beach renourishment as a mechanism to protect private property from the impacts of storm surges? If we do, what are the public rights to that property? With Sea Level Rise, will we be simply delaying the inevitable? One estimate I saw for the Harvey Cedars project was that the renourishment would cost $25 million plus the costs associated with the eminent domain takings - valued within the past week as $480,000 on just one property. Obviously losing these coastal properties to the ocean will have a significant impact on the town's overall property values, but could the overall costs be put to a better use such as preparing the community for the day when the ocean takes this area as it is trying to do?

I do believe it is necessary now, and going to be even more necessary in the future to protect our coastal properties, but do we do this in areas where the property owners cannot recognize the long term value to themselves of these public actions? This really gets to the heart of all of these issues, the public good is to protect private property from flood damage. Looking at the storm surge impacts of the recent major hurricanes, it is easy to see justification for these efforts.

In the Florida case, the questions asked by the Supreme Court Justices as to the added value to the adjacent properties due to the public expenditure to protect their properties, need to be considered. The costs in New Jersey to protect 82 homes from the ocean could be viewed as using public money for private benefit. Far more than a taking issue, this should be viewed as a situation where a public/private partnership is needed. The public, the town and the Army Corps have anted up their share, the property owners are simply being asked to allow the proper erosion controls to be placed on "their land." Land that from the looks of the MSNBC site will soon be in the Public Trust if the ocean is allowed to continue to have its way. Or, perhaps the homeowners in all these cases should be required to undertake the appropriate measures at their own costs?

This will all be interesting to watch. However, it clearly raises the question, should we do something to officially establish a boundary for the Public Trust lands now? We clearly have better surveying equipment today than was had in colonial times. Something to think about.

I'm Not Growing Older Just Wiser...

2009-12-07T17:38:00.002-05:00

So, as some of you may know, I have spent much of my Planning Career following court cases and trying to figure out the direction we are heading in. Over the years the Tahoe Regional Planning Agency has been a leader in the Planning field, they have wound up before the U.S. Supreme Court twice over this leadership. In the 1980's the Regional Planning Agency was challenged over growth moratorias. It took years to roll its way through the courts and ultimately wound up being decided by the US Supreme Courtover the question as to whether a temporary moratoria amounted to a compensable taking. You can find a summary of this court case here: Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency.

In the 1990's the Tahoe Regional Planning Agency again was taken to the Supreme Court. The second time was over development prohibitions to protect Lake Tahoe. The second case involved a parcel that was determined to have transferable development rights, but due to various factors could not be built upon itself. Again the agency was challenged on the taking principle, and again the agency prevailed, however, on a ripeness argument the second time around. This second decision Suitum v. Tahoe Regional Planning Agency became one of a set of court cases in the mid-1990's that helped to define takings and development exactions.

So, what is all this about? Well I just read the following article, Tahoe faces new development battle: green vs. green, and from the court history we have been exposed to, it seems odd that environmental groups are criticizing the Tahoe Regional Planning Agency as being too pro-development. From an outsider's perspective, the exact opposite would seem appropriate.

As you read the article it becomes clear that the Tahoe Regional Planning Agency really has not changed from its positions in the 80's and 90's. They are promoting smart growth, encouraging re-use of sites over stripping greenfields for new development, and ultimately hoping that smart redevelopment can undo the years of destruction that occurred to the Tahoe environment before their creation. The opposition appears to prefer that these greyfield areas be reverted to greenfields.

So, now 28 years after the creation of the original moritoria on growth the battle lines over the Tahoe Regional Planning Agency are still drawn, the agency's position does not appear to have changed much, but one's perspective on the agency may have changed. The Tahoe Regional Planning Agency has grown wiser.

A Case Of Selective Enforcement?

2009-11-27T00:16:00.005-05:00

You may have seen the articles recently on the bikini clad coffee barristas in Bellevue Washington. This article, Bellevue bikini espresso stand told to close its drive-thru, provides some fairly serious issues - whether you support the businesses means of attracting customers or not.

A few of the more choice, anti-business quotes:

"Bellevue Deputy Mayor Claudia Balducci said during Monday's city council meeting that residents should shame Knotty Bodies customers by taking photos of the patrons and posting them on the Internet."

"Balducci also said residents should boycott the Chevron gas station where the espresso stand is located."

"The city council asked city staff to find ways of "aggressively" enforcing codes that pertain to Knotty Bodies. The council also asked staff to research further regulations that could restrict such businesses in the future."

First thing that comes to mind is that the city should always be aggressively enforcing its code. The comments suggest that they do not. If they do not, then a civil rights challenge may be hanging out there for the city.

But of even greater concern is that the city is encouraging people to boycott a business they do not like AND to try to embarrass people just for buying a cup of joe. It sounds like a city out of control.

Green Lawns and Water Quality

2009-11-23T19:34:00.006-05:00

Recently I was charged with researching whether towns could regulate the use of fertilizer on lawns. It turns out that in Massachusetts has a law on the books, from way back, that prohibits anyone other than the state from regulating fertilizer and specifically the ingredients in fertilizer. Massachusetts is in the process of studying whether it makes sense to change how it regulates fertilizer.

The State of Maine is way ahead of us. Recognizing that its clean water ways are a vital part of its economy, especially its tourist economy, the state has taken steps the change how it restricts the use of fertilizer. They are now restricting the sale of phosphorous based fertilizers for lawn application.

This past summer many lakes on Cape Cod were impacted by high levels of algae. While direct links have not been identified, the blooms are considered to be tied to run-off related to the heavy storms this past spring. This run-off contained many sources of contamination, but lawn fertilizers were probably a significant player in the equation.

Maine's lead is definitely a direction Massachusetts should follow. For more information on Maine's program go here: Lawns Green Water Clean

Maine has also posted a partial list of phosphorous free fertilizers (available in Maine hopefully available in Massachusetts as well): P Free Fertilizers

Green Spaces

2009-11-22T21:55:00.001-05:00

Saw this article, Parks, Green Spaces Protect Your Health, it provides a rather interesting perspective. We have been working for some time on promoting new village style developments (we meaning much of the planning community) as "Smart Growth." The article clearly points out the need to maintain a balance as we plan these areas. We cannot forget the need for parks in this planning. The analysis cited suggests a rather wide area, one-half mile, can serve this green space need. Other studies have supported the benefit of seeing trees from a persons window (thus the Million Tree effort in NYC). I think these green areas should be much closer to where we live and work. Such close proximity can provide significant calming benefits.

Basically, the article reminds us all of the importance of green areas and that we should not only be thinking of density as we think of smart growth. Those open areas are so important.

And Occasionally We Still Have The Good Corporate Citizen

2009-11-18T14:37:00.001-05:00

In my previous post I commented on Pfizer pulling out of New London after the city went to the mat to provide the company with everything they could have hoped for. I commented on the concept of many corporations not being good corporate citizens and making a commitment to their communities.

HOWEVER, it is always thrilling to see that some entities recognize what the spirit of community means. Hats off to Sterilite for all it has done for the Town of Townsend! Hopefully others will follow such an example.

A grand gift to the town from the man you can’t see

Kelo Redux

2009-11-17T14:25:00.001-05:00

These articles crossed my desk this week.

Pfizer's Leaving – But New London Opportunities Remain

Pfizer to Leave City That Won Land-Use Case

A Turning Point for Eminent Domain?

Given all the hoopla that was stirred up when Kelo V. New London first happened, I am surprised there has not been more about this occurrence. Unfortunately for New London, and perhaps equally unfortunate for anyone in the economic development field, Pfizer's decision to pull out of New London casts a dark shadow over the eminent domain discussion.

As the "Turning Point" discussion points out, the Kelo decision was not about Pfizer. It was about the extent to which a community could pursue eminent domain proceedings to better a community. However, the Pfizer move is clearly an example of how tenuous economic development can be. Long ago the idea of corporate responsibility to a community started to lag and disappear. Corporate tax breaks and land deals have promoted a footloose and fancy free approach for most corporations that are driven more by a bottom line than being good economic citizens in a community. This example only tends to reinforce that notion.

A Few Choice Quotes From The NY Times

2009-11-14T23:36:00.002-05:00

The NY Times had an interesting article/opinion piece today, Home Builders (You Heard That Right) Get a Gift. The article deals with a new tax relief program that provides benefit home builders. That, however, is not the focus of my interest. Back several months ago I was comenting on several articles in the Boston Globe related to housing. Those articles were blaming the state's economic crisis on inadequate home building and suggesting we would be better off being more like Florida or California. Here are the quotes:

"Among the biggest beneficiaries are home builders, analysts say. Once again, at the front of the government assistance line, stand some of the very companies that contributed mightily to the credit crisis by building and financing too many homes. "

"But dropping helicopter money on the home builders — the folks who massively overbuilt in community after community — seems decidedly less urgent (unless you are one of these companies, of course). Given that the supply of housing far outstrips demand, it is unlikely that these companies will use these tax breaks to hire workers (unless they go into a completely new line of business)."

Hopefully those who believe the lower levels of housing constuction in Massachusetts will soon understand that balancing supply and demand is more appropriate than hoping "if you build it they will they will come."

On The Front Lines Of Being Green

2009-10-12T08:02:00.002-04:00

We are all looking for ways to save on our energy bills. Sometimes all we need to do is to look to our past. How many of us remember fresh sheets or towels straight off the clothesline? Who would have thought these simple devices would wind up defining the battlefield over being green, energy savings, and property rights? The following articles from the NY times provides a little enlightenment:

Debate Follows Bills to Remove Clotheslines Bans

A Line in the Yard: The Battle Over the Right to Dry Outside

Recently, local energy companies have challenged us to reduce our energy use by 3%. Given both these aticles suggest that dryers consume 6% of household energy use, line drying would make this an easy to accomplish goal.

For years homeowners associations have been trying to enforce uniformity, establishing prohibitions on clotheslines, placing requirements on lawn cutting, etc. They see it as "protecting property rights." But whose rights are they protecting? In establishing these "protections" they are trampling all over the rights of individual property owners.

Clotheslines are just one restriction. Many also restrict solar panels and other energy savings devices that may change the look of the outside of the home. It is clearly time for homeowners associations to realize that the "rights" they are protecting are actually infringements on the rights of many.

Right Sizing

2009-09-30T23:06:00.000-04:00

Make the Motor City Smaller, I have seen several articles lately about how Detroit is changing. Much of it addressing how the city is adjusting to the loss of jobs and over a million residents. The changes taking place will be interesting to follow. Right sizing the city could create many new opportunities for promoting the greening of the city, urban gardening and new, urban, homesteading. However, the changes also could threaten many historical resources. Thereby losing much of what created the Motor City. You can look at some of our older cities here in Massachusetts at similar impacts, but on a smaller scale. The Valley Arena in Holyoke had a great history, hosting many famous boxers. It became vacant, burned, and was never replaced. Many of the paper and silk mills in Holyoke are also gone, or are barely shells of their old selves. As cities right size, we will all have to work towards preserving the history, through promoting reuse, that will otherwise be lost forever.

WOW! Harsh

2009-09-17T21:12:00.004-04:00

Saw this article last week, Appeal of 'illegal' Milford two-family house denied, there is one quote I found telling. The comment that the owners of the million dollar homes were the only ones who mattered when it came to the vision for that particular neighborhood. There is no denying the property owner in question violated zoning and was in the wrong. It is too bad though that the people who seem to have recently moved to the area believe that the people who do all the grunt work do not deserve to live near the water.

And We Thought The ANR Process Was Bad...

2009-09-16T19:52:00.001-04:00

It is not statewide, but can you imagine a zoning by-law that essentially gave family land transfers a free walk when it came to subdivision? That is what the following article suggests is allowed in Suffolk Virginia. From the tone of the editorial, the process if far more ripe for abuse than even our Approval Not Required process!

Developers chummy with family land law

Interesting Smart Growth Discussions

2009-09-02T21:50:00.003-04:00

A couple of interesting items on "Smart Growth." What makes them interesting is that they point out some of the flaws in the thought process.

New study shows promise and pitfalls of 'smart growth' planning

Smart Growth Policies

The Lincoln Institute Survey, and the New Jersey Conservation Foundation opinion piece point out that smart growth should not be taken up in a piece-meal fashion where everyone gets a piece of everything. The Pinelands, Meadowlands and Highlands regions of New Jersey are highlighted. I have been to a couple presentations on the Pinelands Commission and can recognize what they are doing, at the regional level, is far superior to some proposals currently floating around.

The idea of smart growth needs to start with the idea that not all areas are equal. Some areas should be seen for their value as recreational areas, some as farm lands, and some as urban nodes. Not every community will have all three. Certain parts of the state need to be recognized for their ability to meet a set of needs, and be protected against competing state interests.

For instance, housing is important in areas where there are jobs, transit facilities and pedestrian access. Housing replacing farmland because everybody must have more homes, simply is not smart growth. These policies cost us open space, increase the use of the automobile and places needy families into areas without job support. Hardly smart.

As the discussions continue on zoning reform, an emphasis needs to be placed on knowing what particular regions of the state are all about, and establishing a zoning reform package that can really achieve this. The Community Planning Act comes close to achieving these goals.

Pulling The Rug Out From Under The Recovery

2009-08-31T23:14:00.003-04:00

Mortgage deductions may change Scary story. Just as the housing market has begun to recover, changes are being contemplated to change the ground rules.

The mortgage tax deduction is a political minefield. On the one hand, renters are not provided an opportunity to deduct any portion of their rent from their income. Thus making the mortgage deduction an easy target in the name of housing equity.

However, the mortgage deduction is quite attractive to homebuyers and removing the mortgage interest deduction will make many by-pass home ownership. This in turn will eliminate many of the jobs that are just beginning to recover from the past couple of years downturn.

Just something to think about.

A Dangerous Affordable Housing Mandate Precedent

2009-08-25T23:19:00.003-04:00

I saw the article below and started to worry. We have towns that have met their Chapter 40B requirements in the state. We have already seen how the statute has been used to suggest that a community which has met its target can still be required to approve a project that came forward before they had achieved the target. Basically rendering the Chapter 40B attainment meaningless.

The entire Chapter 40B concept has followed closely the affordable housing policies and legal path that has occurred in New Jersey, the case discussed below puts a further burden on communities in New Jersey by establishing that, even though they may meet their mandate, that achievement means nothing and they are still subject to even greater affordable housing levels.

Nonprofit wins appeal to build low-income houses

I know the posts here suggest that I have a problem with affordable housing. That is not the case. We clearly need affordable housing. However, we need to see protections put into place for wetlands, appropriate design, and sustainable densities.

Several communities on the Cape are faced with a double whammy, pursuing Chapter 40B while also facing down sewer mandates that may be put into place under litigation. Chapter 40B clearly puts into place densities that are not always sustainable. We need to recognize this and protect our communities, in appropriate means. This can only be done with proper planning. The Community Planning Act provides such a mechanism for proper planning to achieve appropriate local goals - including appropriate levels of affordable housing.

When In Doubt Change The Rules?

2009-08-25T19:57:00.000-04:00

Base redevelopment is never easy. It is even more difficult when there are several communities involved. I grew up near Westover Air Force Base when it was closed. I would say that it has never met its full potential. When I worked in NH I got to see first hand the process with Pease Air Force Base. Even there, the redevelopment process has always been a challenge.

At Fort Devens the redevelopment process has three towns to satisfy. This is a real challenge. The process requires endorsement by all three communities. If one community says no, then a zoning action is vetoed. This recently happened:

BASE NEWS: Towns deadlock on ex-base redevelopment
Fort Devens' Vicksburg site abandoned since '96 closure

Now some may say that the action of one community should not be able to block the development desires of the other participants. It actually provides an interesting twist on home-rule, should one town be able to veto the vote of the other two participants in the process? However, should two communities be able to dictate to a neighbor? Clearly base redevelopment is tricky and requires agreement at the beginning of the process. That agreement appears to have been put into place at Fort Devens. However, as the article notes, the single town veto has raised the ire of those with particular development desires. Now they want to change the rules.

Without getting into the merits of a particular zoning plan, the idea that changing the rules when you cannot get what you want just does not sit well. Rules need to be agreed to at the beginning for a multi-community effort, otherwise, why should towns consider surrendering even a slice of their home rule powers.

Hopefully those at Fort Devens seeking to change the agreed to rules will reconsider and pursue a new development strategy that leads to buy in by all involved, rather than trying to force one community to do something the town does not believe to be in their best interest.

How Can This Be A Chapter 40B Project?

2009-08-21T23:24:00.005-04:00

Reading Boston.com and saw the following article:

His home for sale, Hastings says he’s fine

What struck me in this article was that the particular developer had a Chapter 40B project with "market rate" housing units selling for over $1 million while the affordable housing was selling in the $170,000 range. This seemed like quite the range of prices. The story below provides information on these affordable units.

Affordable housing available in Hingham

Looking further at the project the "market rate" units start at $825,000. These "market rate" housing units exceed the average household in Hingham's ability to pay by nearly doble what they could pay. The median household income in Hingham being $110,699 in 2007 which would qualify them for just under a $400,000.

In fact, this affordable housing project, if it could be called that, will mix households with incomes of about $60,000 with households of about $170,000 to almost $275,000 annually.

Chapter 40B is intended to provide "equivalent" housing, such that you cannot tell the difference between the Chapter 40B units in a project and the market rate housing units. In a project with and 800% difference in unit sales prices, it is hard to imagine that the units are equivalent on the inside and outside.

Perhaps, the project in question could have been of greater benefit to Hingham than the 5 units (as a Chapter 40B project 25% would require at least 12 of the units be affordable???) of housing described by the Patriot Ledger article had the developer been required to provide a local housing trust with 25% of the gross project value to be used for development of appropriate mixed income housing.

Scaling The Hill: 40-B Abuse

2009-08-17T18:28:00.000-04:00

I have posted a few discussions on Chapter 40B. This post is linked to a blog posting by the Massachusetts Senate Republican Caucus. It points out some of the problems. Their proposal will provide a start on reforming Chapter 40B, but there will still be a long way to go.

Scaling The Hill: 40-B Abuse

Farms and Residential Neighbors

2009-08-14T22:19:00.004-04:00

I saw the following two stories this week and they kind of brought me back to an earlier time. While in high school and college I worked on a farm in Hadley. Over the years some neighboring farms were converted to residential developments (some using Chapter 40B). These developments created conflicts for the remaining farmers as the new neighbors had many complaints. They were concerned with what we were spraying on the farms. They were concerned about the early and late hours of the farm operations. They did not like the dust that was kicked up during the spring and fall. They did not like the 7 day a week operations. It was quite clear that the proximity of the houses to the active farm operations were not a "marraige made in heaven."

So, I have to agree with the farmers in New country dwellers worry some regional farmers I believe that they are right. The new neighbors will be complaining about the farm operations. You only need to look at this more nearby story, Town To Keep Eye On Pigs' Stinky Situation, the farm operation has expanded, in the words of the neighbors. If you Google this farm, Krochmal Farm, and look at the cached pages (it looks like the farm took down its website) you find that the farm has been in existence for a hundred years. The houses clearly came to them.

Why am I going on about this? It simply once again points out that, without a comprehensive land use policy at all levels, we will continue to promote land conflicts. Chapter 40B, the Land Use Partnership Act and many other state growth policies conflict with our state's agricultural history and our needs to protect our farms and open spaces.

"Where Are We Going to Charge Our Cars?"

2009-08-13T20:21:00.004-04:00

Planetizen provided the following teaser for a Wall Street Journal story Where Are We Going To Charge Our Cars? I found the question interesting. Twelve years ago I left the Metropolitan Area Planning Council. At that time I had been working for several years through the Clean Cities Program to promote the development of electric vehicle facilities. The MBTA has located EV charging facilities in Braintree and Alewife Stations. These facilities were powered with solar panels.

The program was to be a model for all to follow. Boston Edison, one of the participants, and the MAPC were promoting the concept of electric vehicle recharging facilities at major employment centers and shopping centers. Opportunity recharge was a big part of preparing the Boston Region for the introduction of EV's. In addition, Boston Edison was working to promote paddle type electric vehicle chargers, known as fast chargers, at gasoline stations. The fast charge was intended to provide a five minute or less charge, in line with normal gasoline refilling. Unfortunately, the state backed off of the ZEV requirements (pushed by EPA I believe), if not, we would not be asking this basic question today.

I know after I left MAPC, the agency lost interest in the Clean Cities Program and the Electric Vehicle Pilot Program. The project was picked up by DOER and has moved forward cautiously ever since. The new push for EV's may be just what the Clean Cities Program needs to gain momentum once again.

In Massachusetts, the model is there for EV recharging. Just dust off the Electric Vehicle Pilot Program from the early and mid 1990's that was spearheaded by MAPC and DOER.

Why Propose A Development So Out Of Line With Zoning?

2009-08-11T21:15:00.002-04:00

This article from the Boston Globe is simply astounding. Zoning in this section of Boston allows for 15 stories, the proposal calls for 50 to 70 stories, almost five times the height limit. The article notes an 18 to 24 month review, why? It would seem that since zoning does not allow it, the project should be a non-starter.

While I know the City of Boston has its own zoning rules, the question clearly arises, why would a person buy a property with a zoning limit 1/5th of what he desires, unless he knew he could get around the limits? Just one of he strange things we all have to ponder.

"Instead of just waiting for the economy to come around, how do we shape our future?"

2009-08-09T20:48:00.002-04:00

Technorati Tags: Town Planning,Master Plan

The post title is a question posed by Governor Patrick that will be addressed at an upcoming State Economic Summit. The Governor states in the Boston Globe article he wants to "bring together key business, financial and state officials from important job sectors and different regions in the state." It is unfortunate that local government is being left out of this discussion. I know we could be a major asset to the process.

I think we could start by pulling together a comprehensive state wide planning process. Not the piecemeal right-hand not knowing what the left-hand is doing process that is currently in place.

The framework needs to look at all the required planning documents impacting local government and move forward from there. Every five years we are required to pull together an Open Space and Recreation Plan a major goal of which is to identify land preservation needs. We are now also required to prepare a Multi-Hazard Mitigation Plan which requires us to identify areas at risk of flood, wind, fire or other hazards and to identify methods for reducing or eliminating the potential for risk to human life or property. We are also required to prepare a Local Housing Action Plan to address the creation of affordable housing.

It is interesting that while the above are required, the idea of having an up-to-date Local Comprehensive Plan is optional. Also, while some towns have created Economic Development Plans these plans are also optional.

So, "how do we shape our future?" It is a good question, lets start with the plan. We need an Office of State Planning. The Office would be above Housing and Economic Development, above Transportation, and above Energy and Environment. They would direct the activities of these other agencies and pull together the state comprehensive plan.

Local Comprehensive Plans would also need to be required. These local plans would need to address and pull together all the items we currently are required and encouraged to study. Open Space, Housing, Hazards, Economic Development, Infrastructure, Waste Water Management all need to be pulled into a single document.

This is taking a long term view, and will not address the immediate economic situation. However, the long term view will set us up for a stronger economic future.

Some Competing Editorials on Chapter 40B

2009-07-14T14:30:00.002-04:00

Here are links to a couple of competing positions by local newspapers on Chapter 40B:

http://www.dailynewstribune.com/editorials/x89169293/Editorial-Repair-dont-abandon-Chapter-40B

http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20090625/OPINION/906250331/-1/OPINION0301

http://www.patriotledger.com/opinions/x1795889435/COMMENTARY-Chapter-40B-is-misguided-and-beyond-repair

What do you think?

Erosion of Home Rule Redux

2009-07-14T08:52:00.002-04:00

Back in June I wrote about the proposal to modify wind energy siting, a proposal that has been likened to Chapter 40B for energy companies. The following link will provide you with more information on this proposal and provide you with the opportunity to speak out on the subject:

http://greenberkshires.com/

The petition has been signed by residents across the state from all walks of life. Simply put, wind power is an important part of our future. However, wind power must be properly and carefully sited so as not to detract from the overall economy of a region.

An Interesting Read...

2009-07-09T22:59:00.000-04:00

Found this article: Mass. development chief Bialecki on state, town relationship and tech. Unfortunately there are terms used, such as zoning is a hurdle, that only towns that seek high growth targets "get it" that are inflammatory and do not recognize that smart planning needs to look at the entire picture - open space, quality of life, resource protection along with compatible growth centers matched to a community vision and its place in the region and the state.

Smart Growth - By Special Permit

2009-06-07T23:22:00.001-04:00

Here is an interesting story from the Boston Globe last week, Town centers seen as ripe for growth. In particular, my attention was drawn to the comments of Marc Draisen, Executive Director of the Metrpolitan Area Planning Council. The recognition that, even in Smart Growth areas, towns may want to maintain some level of control is quite telling. I only hope that this position will carry over to the MAPC's on-going input to the Land Use Partnership Act discussions.

I firmly support Smart Growth, but also know that such growth patterns require continued local control to ensure it happens correctly.

Erosion of Home Rule

2009-06-03T14:54:00.000-04:00

I have spent a lot of time harping on how the Land Use Partnership Act infringes on Home Rule Authority of Massachusetts cities and towns. There is a second piece of legislation which is an equal intrusion into community affairs. This legislation has to do with wind turbines. The proposal calls for changing the review process at the local level for wind turbines of 2 megawatts or larger - the largest of the largest turbines. In areas identified by a state commission, these turbines will receive an expedited review by a committee comprised of one Planning Board member, one Zoning Board member and one Conservation Commission member. The proposal will be reviewed at the local level based upon criteria established by the state. While the proposal may be rejected by the city or town, such an action will be reviewed by the State Facilities Siting Board for determination as to whether the action is consistent with state plans. It has been referred to as a Chapter 40B for the utility companies. The following link will take you to a Cape Cod Times editorial on the subject:

End Of Home Rule?

When too Many Forces Collide

2009-05-29T11:40:00.003-04:00

Yet another article on the housing debacle in Florida. This article is clearly worth reading. It actually reinforces many of my thoughts on the contrasts between the Land Use Partnership Act and the Community Planning Act. The former, along with Chapter 40B, really espouses growth everywhere at all costs. While the latter espouses proper planning for local resources and capabilities.

The article is important in that it points out that, even in the greatest real estate failure on record, proper development in the urban core of Dade County, things are not so bad. However, in the uncontrolled sprawl areas disaster is a kind word when talking about the conditions.

Just something to think about

Proper Planning Is Making Some Progress Against All The Pushback

2009-05-26T21:14:00.003-04:00

Recently with all the discussions about the Zoning Act reforms, the entire discussion of whether planning is improving, and lasting reforms are being made. The Mass Audubon Society has released its latest report on land use which you can find here: Mass Audubon report.

The report illustrates that gains are being made to protect the state's critical resources. Even the Boston Globe has published a positive review of this report, Boston.com story, on the report. Given all the rhetoric recently, much of it covered far more extensively than the state's need to protect its resources, about how the state is not meeting its housing growth needs, it was actually a breathe of fresh air to see the Globe not make negative comments about how protecting open space will hurt the state's housing market.

Before the naysayers jump onto this report, or at least use the findings to attack communities on housing policy, it is important to look at this shift towards increased land protection as having occurred while the state housing supply has grown by 0.55%, a rate faster than its population growth, and added twice the number of housing units of any other New England state.

As a planner, I applaud my fellow planners for realizing that housing and open space preservation do work together, and, in spite of the ideas being espoused at the state level, planning and zoning in the state is not broken.

More Housing Information To Think About

2009-05-24T16:41:00.001-04:00

The focus for the past several months has been how cities and towns need to do more to spur housing. One particular area of the housing market that has brought much criticism of cities and towns has been the multi-family market. It seems that those who have been leading this discussion feel that cities and towns are discouraging the construction of multi-family housing.

Recently I asked my colleagues around the state for information on stalled housing projects. The results was that there were thousands of approved housing units, many in multi-family configurations, waiting for the applicants to request building permits. Even one builder acknowledged that units were approved, but the mortgage market was stalling the ability to construct the approved housing.

The following article, from Boston.com illustrates that this problem is not just a planner's wild imagination:

New rules on condo loans hindering some buyers

As the article relates, there are homes. There are buyers. The access to mortgages are not there.

While the article has many things to consider, one particular passage really illustrates a point I have been hearing from the home building community:

"Peter Milewski, an official at MassHousing, the state's afford able housing bank, said condos are considered more problematic to lenders because a few foreclosures can affect property values for an entire complex. Also, he said, they carry monthly fees and special assessments that can create massive collective debts if individual unit owners fall behind on payments."

Simply put, lenders are not willing to lend to home buyers due to the threat of foreclosures in other units. Thus constructed housing is going unoccupied. This unoccupied housing increases strains on builders and on the condominium complex. Carrying these empty units impacts the developers ability to make a profit off of the project, and limits their ability to undertake other permitted projects. Essentially, stretching the builder beyond their means. When the builder defaults, the banks expectations become a self-fulfilling prophecy.

Many who are pushing for local planning and zoning to include housing construction annual targets, seem to forget that it is a much larger picture. What we really need is good land planning (as put forth in the Community Planning Act), good financial planning by the building community (which many I deal with seem to follow), and proper support for housing from the banking community (which means eliminating the risky mortgage practices of the past decade while not bailing out completely on the housing market).

The Latest on Using Recycled Tires for Play Areas

2009-05-18T18:09:00.004-04:00

Driving to work today I heard a radio news story from ABC Radio News on one of the local radio stations regarding on going concerns about the use of recycled tires on synthetic playing fields. In the following story concerns are raised about the ingestion and inhalation of rubber dust on synthetic fields which use crushed rubber.

Synthetic Turf Fields Kicking up Safety Concerns

Looking this story up, also led to finding the following archived news story I had heard about last summer, also on ABC Radio News.

Hot Park Equipment No Child's Play

I have to admit, while I was keenly aware of the risks associated with inhaling rubber dust, and had considered the fumes that might be generated by hot rubber surfaces, I had never thought about just how how these surfaces could get.

Just to wrap it up, here is one more ABC News story on Latex. Read the comments, they are eye opening.

Latex Lurks in Unexpected Places

Smart Growth or Not So Smart Growth?

2009-05-14T23:50:00.001-04:00

As we continue the discussion of the Land Use Partnership Act (LUPA) and Community Planning Act II (CPA II) there are many issues to think about. Here is one article that needs to be considered. A key quote to consider is "Just having the ability to walk or bike to recurring destinations, such as a food store, school or workplace, makes it more likely people will be more active...." Is Chapter 40B smart? Can LUPA make the grade? What about CPA II?

Are specified housing targets smart growth? Is a program to construct housing in every community to achieve 10% affordability promoting sprawl? Is setting a target for 5% housing growth in every community, every ten years smart growth, or is it promoting more automobile travel?

Is placing restrictions on a community's ability to require sidewalks as mitigation for development impacts improving people's health or promoting driving?

Just some things to think about.

Housing And State Consistency

2009-05-09T20:34:00.010-04:00

So the Land Use Partnership Act believes that communities are not supporting state goals for housing and economic development. The state establishes a 5% housing growth target over a 10 year time frame. The belief is that cities and towns are blocking the states ability to meet this goal. However, if the state believes that 5% housing growth over 10 years is the appropriate target, what do the numbers really illustrate?

The U.S. Census reports that housing has increased by 3.8% between the 2000 Census and 2007, for an average of 0.55% annually, exceeding this target set by the state.

Looking at the Northeast Region (New England/New York/New Jersey) the Census shows the following growth figures:

.........................7 Year Growth..Average Growth ..Units Added
Massachusetts .......3.8%.................. 0.55% .................100,201
Connecticut ............3.8% ................. 0.54% ..................52,461
Rhode Island ..........2.5% .................0.36% ..................11,047
Vermont ..................5.8% .................0.83% ..................17,052
New Hampshire .....8.6% .................1.23% ...................47,028
Maine .......................6.9% .................0.98% ..................44,710
New York ................3.4% .................0.48% .................260,539
New Jersey .............5.7% .................0.82% .................189,131

As the chart above illustrates, Massachusetts added nearly twice the number of housing units of the other New England states. The rates of growth are larger in those other states due to the smaller starting base. Another interesting figure compares housing growth to population growth.

....................................Housing to Population
.............................................Rate of
.....................................Growth Ratio
Massachusetts ..................2.4:1
Connecticut .......................1.3:1
Rhode Island ....................2.8:1
Vermont ............................2.8:1
New Hampshire ................1.3:1
Maine .................................2.1:1
New York ..........................2.0:1
New Jersey .......................1.8:1

Again, Massachusetts is around the high end for this analysis as well. However, California, Arizona and Florida have been held up as the yardstick for comparison. California has experienced a 1.28% annual increase in housing which relates to a 1.13:1 rate of growth ratio. For Arizona the relevant numbers were 3.12% and 0.92:1. Finally for Florida the numbers were 5.37% and 2.6:1.

So, what does all this mean? Housing growth in Massachusetts is not all that out of character with these other regions. Our housing growth rate in comparison to population growth rate is higher than in these other areas. While our population growth may be slower than some other region's, we are actually providing far more housing opportunities than Arizona or California for our population growth than these rapidly growing states.

Of course, numbers can be manipulated to support any cause. I personally look at these numbers and say things look pretty good. Others will try to say the numbers illustrate that somehow we are holding back growth. Draw your own conclusions.

Back on the Land Use Partnership Act

2009-05-08T23:18:00.005-04:00

The Citizen's Housing and Planning Association provides the following summary for the Land Use Partnership Act - it should be noted that in December the entire act was referred to as the Land Use Partnership Act, in the January submittal that has changed with Section 18 and later being known as the Land Use Partnership Act.

Sections 1 - 17 establishes changes to the existing zoning and subdivision regulations. Changes that are intended to make planning, zoning and subdivision control more difficult for communities. While organizations like CHAPA may feel that these changes will, in and of themselves, create more housing and more affordable housing, there are historically no examples of home builders building and selling at levels below what the market will support. Really, in the early 2000's did any of them sell homes for their asking prices when offers were exceeding asking price?

"CHAPA has participated in an 18-month process to identify land use statutes that require updates to make it possible to build housing through local zoning at the necessary densities to accommodate affordability and to prevent environmental degradation and sprawl. The proposal would create a local option for municipalities to create growth districts that include prompt and predictable permitting for housing and additional tools to manage growth in areas they prefer to restrict from development. It also includes modest changes to statewide laws to update land use and planning statutes that haven’t been modified in thirty-five years."

This summary requires an itemized response.

...land use statutes that require updates to make it possible to build housing through local zoning at the necessary densities to accommodate affordability....

The zoning act, Chapter 40A, allows communities to establish densities based upon a variety of local needs. Communities with central water and/or sewer are capable of accommodating development at greater densities than communities without central water and/or sewer. There is nothing about the changes in Sections 1 - 17 of H. 3572/S. 765 which will modify density. There are devices in the act that will make it more costly for towns to provide some of the protections that were recommended they adopt in the 1960's and 70's to protect groundwater resources. However, given the nature of today's drinking water protection requirements, without significant state funding for increased water and sewer services, zoning lot sizes are unlikely to change due to the changes in this legislation.

...to prevent environmental degradation....

H. 3572/S. 765 provides very little new for the protection of the environment. Section 9 on Transfer of Development Rights clarifies existing standards, but provides no truly new devices. Similarly, Section 10 on Cluster Development simply restates the current state of the practice for these types of development. The words may change, but the intent and practice will not.

...and sprawl....

There are a number of items in H. 3572/S. 765 that will not only not stop sprawl but might actually increase it. One of the easiest examples is to look at the Cape Cod Commission Act. Development on the Cape either triggers Commission review which increases review time and cost, or stays below the review threshold. Most seek to stay under that threshold. This has led to the Cape model for several larger chain stores. Off Cape they have a particular sized building for a particular market area. On Cape they have a smaller model for a smaller market area. The end result is more of these retail stores. H. 3572/S. 765 will lead to some similar knee-jerk reactions. Changes to Site Plan Review for instance, in Section 8 of the act, when coupled with the Impact Fee provisions in Section 12 restricts a communities ability to make by-right development ensure that they do not create off-site problems that are immediately assignable to that project. There are similar provisions for subdivisions. The immediate reaction will be to modify zoning controls for towns to recover what these sections take away from them. By these, I would suggest that communities will change zoning such that more projects will trigger Special Permit requirements, thus increasing local control by reducing "by-right" development opportunities. As long as communities remember that a land owner needs to be able to do one thing on their property by-right, Special Permit Control is wide open. This would be a tremendous anti-development reaction to an act that purports to promote development in the state. However, since the cities and towns need to protect themselves, and this act makes that quite difficult, cities and towns will need to react.

Relative to subdivisions, when I worked in NH we worked quite hard on matching land densities to a variety of carrying capacities. In MA most of this effort has focused on groundwater resource protection. In NH after the Lewis Builders case many communities asked their Regional Planning Agencies to look closely at their roadway network, existing traffic volumes, roadway width, and traffic capacity for those roads. Given the number of narrow, winding country roads in most towns, roadway carrying capacity became a limiting factor for development. A factor which triggered recommendations for reducing density to ensure that the towns were not required to widen roads. It was not unreasonable in NH to have a development project on Route 1 in Hampton or Portsmouth turned down as "premature and scattered" an important term in the NH Planning Statute which ensured that communities and developers were on equal footing.

By removing the balance that is present in the subdivision and site plan review efforts of communities, which ensure that by-right developments must be approved, but may be approved based upon conditions that prevent adverse impacts on cities and towns, down-zoning and increased sprawl is almost predictable.

The proposal would create a local option for municipalities to create growth districts...

The Land Use Partnership Act, Section 18 and beyond in H. 3572/S. 765 are beyond the reach of many communities. Communities can create growth districts today. Many have. The growth districts today represent desirable opportunities for communities seeking to promote particular forms of development. Many communities on Cape Cod are working with the Cape Cod Commission on such districts. Off-Cape there are numerous such examples. The "Partnership" aspect of H. 3572/S. 765 is that after cities and towns have been penalized the state will offer back a half a loaf to communities, and ensure that the half a loaf is well outside the reach of those communities.

...that include prompt and predictable permitting for housing...

Ah, the concept of prompt and predictable, as if communities are not prompt and predictable. This is really the starting point for the entire proposal. Communities are not implementing statewide goals for housing, communities are blocking the state's economic development goals, etc. The lobby of a particular conservative think tank that believes cities and towns are bad, cannot be trusted and work against the greater good. It is quite interesting that MA has been relatively insulated from the general market collapse that has taken place in areas such as Arizona, Florida and California to name a few. In part it is because the state did not overdevelop for the past eight years. In fact, housing growth for the past eight years has met the stated goal of 5% housing growth over a ten year time period, and has exceeded that target. At present thousands of approved housing units are unable to be constructed due to the economic meltdown caused in large part by mortgage companies seeking to find creative ways to finance homes as they made their profits off of the mortgage fees. Had banking been more controlled, there would have been a far less drastic economic collapse than we have experienced. The bubble was due to burst, it was just set up to be too big a bubble to begin with.

Housing is now even more out of the reach of many people. Houses are being foreclosed upon due to these creative financing devices which made costs far lower than the realistic costs associated with them. The over-development of the market, yes even here in MA, has led to decreased housing values, leaving real estate developers and home owners with homes and properties valued at less than outstanding mortgages.

...and additional tools to manage growth in areas they prefer to restrict from development.

Honestly, I have not found a single one. The statute seeks to clarify or place into statute tools we currently use. These tools are limiting upon what towns can do presently under Home Rule. For instance, Site Plan Review is a tool that the courts have recognized as evolving from Home Rule powers. Site Plan Review mirrors Chapter 40A Section 9 and simply allows a review to protect health, safety and welfare for otherwise by-right development projects. The proposal will reduce community powers under Site Plan Review, restrict the review period available to a community and basically tie the community's hands. Hardly an additional tool. Similarly there is a provision to specifically explain the restriction on zoning's reach into the interior of a home. This particular provision originally came about to ensure that cities and towns were not making requirements that only expensive homes were being built. While the courts have consistently interpreted this statute to allow significant leeway to communities, the change proposed will reopen the entire litigation question all over again.

...It also includes modest changes to statewide laws...

There is little that is modest about the changes that take place in Sections 1 -17 of H. 3572/S. 765. Modesty is clearly dependent upon what side of the fence you are on.

...to update land use...

The act does not require communities to update land uses, the Community Planning Act makes far more of a direct connection between local comprehensive plans and land use than H. 3572/S. 765. If the desire is to update land use plans and provide a direct connection between these plans and zoning, then the Community Planning Act is the correct too.

...and planning statutes that haven’t been modified in thirty-five years.

The overall planning statute has not been updated in 35 years, however, piecemeal changes have been made almost annually. This proposal provides a new piecemeal set of changes to the statute. It is not comprehensive, but is quite punitive. The best part of the provisions are placed outside of the zoning act and out of reach of most communities. If CHAPA wants to get behind true zoning reform, the Community Planning Act is the correct mechanism.

Something That Really Bothers Me

2009-05-04T22:07:00.004-04:00

Sitting watching Town Meeting. One presenter raised the question on an affordable housing issue about keeping out "illegals." This seems to be a recurring issue here in this, the Oldest Town On Cape Cod. I cannot help but wonder what the discussion would have been had the Pilgrims been met with such hostility?

Personally, I can trace my roots back to the marriage of Martin Prevost, a French explorer, and Marie Olivier Manitouabeouich, an Indian, in 1644 the first documented marriage between a European and a Native American. Europeans were welcomed 365 years ago. Many European settlers, economic and political refugees, have been welcomed since then.

Now we have Latin Americans needing the same opportunity that these Europeans needed, yet we have become far less welcoming. We hardly live up to the slogan most European settlers traveled past on Lady Liberty:

"Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me.
I lift my lamp beside the golden door."

Are Land Use Policies Really To Blame For The Mortgage Meltdown?

2009-05-04T20:26:00.002-04:00

I will start out by agreeing that, yes, land use policies can weigh into the high price of housing. However, there seems to be many who want to blame land use policies for all of our housing woes. Read the following article, Urban Land-Use Controls and the Subprime Mortgage Crisis, from Northwestern University's Kellogg School of Management, to gain one concept. The author is of a clear belief that low density housing caused the current housing crisis. This is a rather specious argument when one considers much of the real world literature that is out there, and works from other real estate research groups.

First, there is this story from the Chicago Tribune, Dreams turn into a dump; Builder vanishes, leaving a community in disarray, here we have a case where a project of significant density, with rather reasonable prices has failed. The problems seem to be much more in dealing with the availability of money to lend than with land use density.

Second, the High Tide for Housing, from Texas A & M's Real Estate Center provides an interesting counterpoint to the Northwestern University paper. The Texas A & M paper points out a number of "causes" of the mortgage meltdown. The idea that housing is an investment rather than shelter, land speculation, strong second home demand, all drive up demand. Simply Google the concept of people offering to pay for homes at higher than the asking price, and one sees numerous news articles from the early 2000's of the phenomenon happening. In my previous post on the Florida Foreclosure Disaster, the article cited reference homes being flipped in a single day for exceedingly higher prices.

In the mid-cape area, many communities have 40% or more of their housing units owned as second homes, seasonal rentals or other investment properties. If all these second homes were available to the local employee, with no out of region or out of state influences, there would be little or no need for subsidized affordable homes.

The current housing crisis is far too severe to to oversimplify the answer. Those who would like to place the blame solely on land use policies are doing just that. Too many want to believe that a trickle down housing plan will meet all of our housing needs. Personally, I believe that the trickle down concept does not work. An increased housing supply will not simply equate to lower housing prices. In fact, an out-of-control housing boom has in the past, and once again, contributed to the current housing crisis.

Latex, A Response

2009-04-20T14:08:00.003-04:00

Usually I would not clear an anonymous comment, however, for the sake of better exploring the issues with latex I posted a comment made to my previous discussion. I did this more to address the issues, some of which I have seen in a number of sources, about the supposed issue of latex and tires. The basic comment about children playing on tire swings for a century with no problem is a significant position of the latex industry.

The fact is, yes children have been playing on tire swings for a century. Has there not been any problems? Far from certain. Latex allergies have only been recognized for a very short time. Exposure issues quite likely have been around since we first started using latex, people just did not know what to ascribe the problems to. I would suggest that it is entirely too late to ask anyone who ever had a rash after playing on a tire swing to get tested for sensitivity to the latex protein.

It is also generally agreed that the vuclanized version of latex in a tire is more stable than the latex used in gloves or swim caps. However, there is significant documentation that as tires wear, and after tires are de-vulcanized (frozen to extreme temperatures so that they can easily be crushed to remove the steel lining) that the latex protein is released.

The following data sources provide significant information that essentially supports a more cautious approach than the scraptires site or the author of the comment:

A Case Study of Tire Crumb Use on Playgrounds: Risk Analysis and
Communication When Major Clinical Knowledge Gaps Exist

A couple key passages:

Regarding our central question of potential harm to children, the published literature
contained some information about the product, including an in vitro toxicity
model, but traditional published resources and a network of environmental health
experts could not establish the product’s safety in use with children. (Gapin Children Research page 1)

Risks may exist in working with the product, but the question regarding hazards posed tochildren playing on the amended playgrounds is left unanswered. (Gapin Children Research page 3)

Impacts of Tire Debris

The interaction between inhaled particles and lung cells is described in literature [66,67], as well as the correlation between tire particles and the release of latex allergy proteins [23,68].

In this study the latex protein extracted from car tires is nearly as high as the latex protein found in latex gloves, the study notes that it had expected the vulcanization process to destroy natural latex proteins, the authors found it notable that the presence of latex allergens in tire tread was confirmed across several different tests.

The commentor also noted:

There are hundreds of millions of tires in use on motor vehicles today. These tires wear off particles of rubber into our environment during their normal use with no known long term health hazard. Once removed from service, their composition does not change. If they are made up of materials that are hazardous to any portion of the population then we need to stop their production, unless there is no significant hazard here.

The following comments will illustrate that, in fact, there is a known problem.

Latex Allergens in Tire Dust and Airborne Particles

In conclusion, the latex allergens or latex cross-reactive material present in sedimented and airborne particulate material, derived from tire debris, and generated by heavy urban vehicle traffic could be important factors in producing latex allergy and asthma symptoms associated with air pollution particles.

As tires wear out, rubber is presumably deposited on the road
surface. Where is all that rubber?

All over the place, bud--including maybe in your lungs. For a long time conventional wisdom had it that tire particles were too coarse to do much harm and simply wound up as one more component of urban grit. Now we know better. Asthma and latex allergies have been on the rise in recent years, and some think tire dust is why.

Fine rubber particles, whether latex or synthetic, can lodge in your lungs and even enter your bloodstream. The Environmental Protection Agency has a whole category designated for such problematic particles: PM2.5, or particulate matter less than 2.5 microns in size. Excessive exposure can lead to reduced lung capacity, bronchitis, asthma, accelerated heart disease, and death. One study claims that nearly 60 percent of airborne tire particles are small enough to be easily inhaled.

Paving, Asphalt, Tires and Latex Allergies:
What is the Relationship?

If you are a latex allergy victim and you experience any type of reaction around streets that are being paved, or asphalt that is being added to roof structures, there is a very good reason. Asphalt, when combined with ground up tires in the paving process, contains natural rubber.

A study of blood samples from asthmatics and healthy persons from the Los Angeles area showed a high correlation in the increased incidence of latex allergen antibodies in asthmatics. Victims of latex protein hypersensitivity should avoid areas that are being paved or roofed when asphalt is being used. The airborne particles of natural latex proteins emitted in these processes are known to cause reactions in latex allergic individuals.

This particular study explores the impact of heat on latex. It is commonly thought that the vulcanization process will reduce the latex protein in tires. However, as the Groce article in the Latex from Tires notes, the heating process of rubber tires when included in asphalt releases the latex protein into the air. Why is this important in the framework of the poured rubber surface and rubber tiles surfaces at the playgrounds? From what we have found is that these surfaces use devulcanized rubber, devulcanization is a process to breakdown the binding aspects of vulcanized rubber to extract the natural latex rubber from the hardened tire. The devulcanized rubber appears to free the latex protein that may have been bound up in the hardening of the vulcanization process.

Latex Allergy in 2004
What’s Known, What’s Now, What’s Next

There is not yet good research about many aspects of preventing or managing latex allergy. For example, the use of recycled tires for surfacing playgrounds and athletic tracks is controversial. Given the current knowledge about latex allergy, we recommend that:

• In the general healthcare environment, non-latex or low-allergen unpowdered gloves should be the standard. This will reduce future sensitization.

• All individuals with spina bifida and related conditions should have a latex-safe environment from birth. This means in hospital, at clinics, in school and camp and in the community at large, including restaurants and shopping malls.

While this is a report provided for patients with Spina Bifida, the recommendations hold true for any latex allergic person.

So, back to the rubber industry quote “after all children have been swinging on tires for a century…” as a means of supporting the use of tires in playgrounds. Personally we recognized a problem on the Wing School Playground over two years ago when our son experienced hives when playing on the equipment. The contact hives were determined to generate from the black rubber bridge that was on the playground. This bridge was one element removed on the playground to make the area safer for latex allergic children. Of course, the starting point is recognizing the existence of a latex allergy in a child. Without that, connections are not made. A child could go into shock due to a latex allergy, and if that child is not known to be one of the between 2% and 8% of the general population considered to be allergic to latex the connection will not be made (Looking out for Latex).

So, anyway, yes tires can be landfilled in some states. Many, if not most landfills discourage such disposal of tires as they do not decompose (even though a properly sealed landfill will never decompose any of the buried material). I am far more familiar with the tire piles that have led to major pollution problems - especially when they have caught on fire:

Problems associated with landfilling of scrap tires Landfilling of scrap tires causes serious environmental pollution and health problems. Of the 283 million scrap tires generated in the United States in 2003, nearly one-fourth wound up in landfills. This is in addition to more than 300 million tires already stockpiled across the country. The estimated cost of cleaning up the existing tire stockpiles in the United States is in the range of $800 million to $1 billion. The most obvious hazard with the stockpiling of scrap tires is the potential for large uncontrolled fires. Scrap tires are petroleum-rich products, and as tires burn, they release particulate pollutants to the atmosphere and hazardous chemicals into groundwater. Several uncontrolled fires have recently occurred in tire stockpiles (e.g. California, 1999), which have posed tremendous hazards to the environment. Tire piles are also prime breeding grounds for mosquitoes and other vermin, which are vectors for human diseases such as Dengue fever, Malaria, and West Nile virus. The World Health Organization estimates that over two billion people live in areas at risk for epidemic transmission of these diseases.

Finally, in closing (while I have a tremendous number of other sources including ones looking at the dust on artificial football fields using rubber dust for the base) I found this post while writing this reply:

How Safe is Your Child’s Playground? Recycled Tire Cushioning Poses Health Concerns

"The next time my kids want to play on a recycled tire playground, I think we will walk on by to a playground made with safer materials."

Planning For Everyone

2009-04-18T12:56:00.002-04:00

This post may seem unrelated to the functions of most planners. However it relates to an issue that is near and dear to my heart, and it reflects a set of issues that we need to all think carefully about. I am talking about ensuring that our planning efforts are designed to be as inclusive as possible.

My son is a prime example, he is among a growing segment of society that is allergic to the latex protein. The allergy leads to hives, breathing difficulties and ultimately could lead to shock and death. This allergy has led my wife and I to have to look carefully at many aspects of life that others take for granted. We need to ensure that he uses leather basketballs, not latex ones for instance. And, even with these, he has to be reminded that the bladder is latex rubber and to let someone else fill the basketball if it needs air.

Where am I going with this? And, why is it a planner's issue?

Latex rubber is a problem. It has been a growing problem since the first rubber tires were rolled off the assembly line, and will remain so long after the last tire is removed from the market.

Tires cannot be land-filled. Tires should not be stockpiled as they become fire and other biological problems.

So, planners and other solid waste experts are looking for new ways to re-use tires. Spreading the toxic latex further into society than ever before. Used latex tires are being crushed and the crumb rubber being re-used in many ways. Some nearly permanently sealing the latex protein in other binders, such as when used in asphalt. Others re-uses are increasing direct exposure to latex to hazardous levels.

Especially for latex allergic people.

It is this latter re-use that many planners are involved with, not just the solid waste experts, but many of us. Crumb rubber is being used for playgrounds, athletic fields and numerous other items that bring latex into closer proximity to children than ever before. Some, in smaller particles than ever before.

Crumb rubber is being crushed and used as the soft surface under swing sets to replace wood chips. There are reports about young children ingesting these crumbs directly.

Crumb rubber is being rebound and used for solid tiles under swing sets as well. These tiles are intended to make these play areas more accessible to wheel chairs. However, the use is excluding a new group of people from these play areas - some who are even those targeted for improved access. While these tiles are more secure than the crumb rubber noted above they still may release latex into the air due to heating and simple wear and tear.

Finally, crumb rubber is being promoted for new artificial athletic surfaces as the new fields do not require watering, reducing water demand. However, if you watch a football game on these fields, such as the one in Foxborough, watch the little clouds of dust every time a player is tackled. These clouds include fine particles of rubber dust. Players are inhaling this dust. While for most this may simply be an irritant, and in itself poses a problem for asthmatics, it is a deadly risk for a latex allergic child or adult who is introducing an allergen directly into their respiratory system.

As planners, we have many decisions to make. As a parent of a latex allergic child, I want to encourage all planners to consider all possible allergens as we plan for public facilities. Especially public facilities that are intended to serve our young.

Of Inclusionary Housing, Environmental Regulations and Conservative Thinkers

2009-03-21T16:57:00.002-04:00

Time to spout off about a couple of things I read over the past two days.

First, lets start with the column written by Thomas Sowell, conservative economist from Stanford. In the column Local environmental-protection laws to blame for housing bust, Sowell sets out to blame the housing crash on local planners. He approaches this in an interesting way. He takes the position that programs to provide affordable housing (specifically the funding mechanisms to place people into homes) was unnecessary. The "real problem" in Sowell's eyes are local zoning and other land regulatory mechanisms that increase the price of housing. Specifically, he targets environmental protection, open space laws and "smart growth."

It is interesting that some of the environmental protections he targets date back 37 years now, to a major conservative president. In 1972 the Clean Water Act became law, followed in 1973 by the Endangered Species Act. As Barry Goldwater is reported to have stated back then, conservatives put the conserve in conservation.

It is interesting that he targets a progression of strategies. First there was outright environmental protection. Soon it came to be realized that environmental protection and development could be balanced, that is what brought us open space laws. Laws that essentially concentrate development into smaller areas while protecting important environmental areas. Finally, we have arrived at "smart growth" which further seeks to targets accommodating higher densities of housing in areas where the infrastructure and other services are available to serve the development.

It is interesting that greed never came into the discussion - but that is a point I will reserve for later.

The second report I came across is the latest missive from the Rappaport Institute. The report, entitled Silver Bullet or Trojan Horse - The Effects of Inclusionary Zoning on Local Housing Markets In Greater Boston, concludes that local Inclusionary Housing By-laws do not work.

The study surveyed 187 communities in what they refer to as Greater Boston - most of the Worcester metropolitan area is included as "greater Boston." The study found that 48 communities adopted Inclusionary Zoning between 2000 and 2004, 60% of those with these type of by-laws. Of the 187 communities surveyed, 99 had inclusionary zoning, just over half of the communities. If one were looking for positives, the rising significance of inclusionary zoning at the local level should be applauded.

The study also notes that communities with inclusionary zoning in place for 5-14 years had a better chance of having created housing than those with less than two years experience. While this is kind of a no-brainer that longer exposure to zoning provisions will lead to a greater level of production, the time period of the study, ending in 2004, was also the middle of the economic downturn caused by the "dot com" bust. A period that had a significant economic impact on the Greater Boston area which saw many business failures. The study prefers to chalk this up to how long it takes to get a project permitted, rather than real economic issues.

Now we get to the fun part of the report, one that should call into question the entire Chapter 40B process. The study states

Many economists and developers believe
that, because IZ acts as a tax on new housing
development, it is likely to reduce the production
of new housing and increase prices of both new
and existing houses.

There analysis suggests that permits, based upon a regression analysis, permits will decrease in communities with inclusionary zoning! They actually suggest a 10% to 30% reduction in permit issuance the longer a community has IZ in place.

Finally, in coming to its conclusion that IZ has no benefit in Greater Boston, the report tries to suggest a lack of unit production. However, that conclusion is quite interesting. The report suggests that there were 21 units of housing created in San Francisco metropolitan area under inclusionary housing, and 180 units in the Washington DC metropolitan area, then states that 43% of the communities with IZ in greater Boston had no unit production. A little apples and oranges here! If the communities that did produce housing, produced only one unit apiece in this time period, at least 56 units of housing were produced! Far better than San Francisco which has had IZ far longer than our local brethren. The community I work for is not part of that study, but within the time frame of the study, more than 20 deed restricted units were created.

So, where does greed come in to play? Thomas Sowell and the Rappaport Institute attempt to place blame on local officials for increased housing prices. Predominantly and continuously looking at community character preservation goals, environmental goals and other local regulations as the catalyst for increased housing costs. No one looks at the rapid loss of land, which Mass Audubon suggests is as much as 40 acres a day in Massachusetts as being part of why housing prices are going up.

In fact, builders will, justifiably, try to earn as much as they can from every transaction. They do have families to feed as well, and can only work so many hours a year. And, they clearly need to be able to protect themselves against downturns such as the current one and the one of the late 80's and early 90's. However, there are others simply taking advantage of people, as noted in The Ponzi State; Florida's foreclosure disaster, flipping of houses became big business during the recent housing bubble. Similarly many builders only sought out high end projects since money was flowing freely. Who wanted to build smaller, more affordable units when one McMansion could generate as much profit as several less costly homes? Greed is found everywhere. Truly, it is the basic profit motive. People are in business to make money and take care of their own self interest.

I will leave you with one simple thought for today, and it is based upon a front page editorial in the Manchester Union Leader, everyone is in favor of affordable housing, until it is in their neighborhood. The Union Leader plasters Live Free or Die on its masthead. However, over twenty years ago endorsed a piece of legislation targeted to improving community land use tools (increasing restrictions on land) with the ominous statement "perhaps the next big housing project will be in your backyard...." On affordable housing people walk the walk, and talk the talk, until it comes close to home.

NH Work Force Housing

2009-03-06T19:49:00.004-05:00

I wrote about the NH Work Force Housing planning requirement previously. When I reviewed the idea, I did not notice the requirement that towns accommodate a 60% of median income target. From this Concord Monitor article, Workforce housing changes on ballots ; Towns scramble to comply with new law, it appears that the communities in NH are having a hard time meeting this mandate within their local by-laws. I continue to think that this type of a mandate is important, and should be looked at here in Massachusetts as well, with the caveat, that Chapter 40B would go by the wayside.

It should be noted that this statute seeks the ability to create affordable housing, it is not a sheer housing construction numbers game that some feel is necessary here in Massachusetts.

And Now This From San Diego

2009-03-03T19:18:00.000-05:00

Here is an article that reflects the staggering effect of overbuilding. Defaults drag down prospects for builders. One can only wonder if the nation would be in as bad a shape as it is if these builders and banks had insisted that there be identified qualified buyers for the housing before construction began.

Home Construction Huh?

2009-02-28T23:18:00.007-05:00

Here is another Boston.com article on housing, once again blaming communities and zoning for the lack of housing construction. It is actually quite pathetic how they took some simple, national statistics, and twisted the results.

Let's start with the basic numbers, drawn from the Boston Herald story, new housing sales fell to an annualized figure of 309,000 housing units. This level was lower even than the previous record low in 1981. At the same time, annualized new housing starts (from the Boston.com article) stood at 466,000 units. Thereby housing starts outpaced demand by 157,000 homes, or almost 51%. The Herald article goes on to point out that new home inventory would take 13.3 months to exhaust. Essentially meaning that current supply has far outstripped demand.

The Boston.com article goes on to note the "boom" states of Florida, Arizona and California have been so hard hit by the recession that there are large numbers of subdivision and condo ghost towns. These are clear examples of the reckless speculation in the housing market in recent years.

If you look at the Case-Shiller data I provided here, you can see that the Boston region housing market has not been hit as hard as other parts of the country. In fact, the Herald even notes that the Northeast was the only part of the country to see increases in new home sales.

Now, one could look at all this data and conclude that the northeast in general, and the Boston region in particular, has been preserved by slower housing growth. But, even though noting the foreclosure ghost towns in the once booming (read over built) states, the article on Boston.com once again finds fault with local land use policies.

The Boston Globe and Boston.com writers need to change their mantra. They should read the New Yorker article I wrote about in my previous post, they should read some of the real estate foreclosure stories from San Diego or elsewhere in California. If Massachusetts were in the same dire straits as some of the boom regions, would they be blaming the overbuilt environment and collapse of the housing market on a lack of local leadership on land use?

Rather than looking at lots available for construction or other surrogates for the ability to build housing, the Boston Globe and Boston.com writers continue to focus on the issuance of building permits. A recent review I conducted of other planners across the state illustrate thousands of approved housing units languishing as builders have not proceeded to construction.

Over the past few years the Globe has also been full of stories about housing developers who promised the world to communities to get projects approved with visions of large profits dancing in their heads, and then had to return to the towns to ask that the conditions the developers offered to begin with, be removed.

The relative stability of the Boston region's housing market is illustrative of smart land use decisions by both community officials and the region's builders. And, unlike the Boston.com conclusion, the number of projects with valid local approvals and the lack of builder's languishing in bankruptcy, like in San Diego, will leave the region well positioned for both short and long term economic recovery.

Florida's Foreclosure Disaster - A Message For Us

2009-02-21T18:11:00.008-05:00

Just finished reading this story from the New Yorker Magazine. Then went onto Windows Live Maps and traced the latest aerial photos of State Road 54 in the Tampa area. The two-dimensional aerials are really telling, illustrating numerous empty subdivisions. Land stripped, roads put into place, some construction completed. Just totally amazing.

Pictured above is one area adjacent to State Road 54 which illustrates a new subdivision (center on the picture), an unfinished subdivision (to the left of the new subdivision) and an unfinished commercial plaza (on the right edge).

While we may not have had the rampant speculation and flipping of properties that is reported in the article, some areas of Massachusetts have experienced a rapid run-up of property values as the second home market brought in piles of outside cash to the housing market.

Then, as I thought more about it, there is some level of housing speculation involved with pursuing Chapter 40B developments over traditional land development. Albeit these projects have certain limits, there is clearly a profit to be made or those in the business would not be seeking approval of these developments.

Why do I believe that Chapter 40B projects fall into the land speculation side of the equation? Well basically, a traditional subdivision can be laid out, and then delayed until market conditions will support building the housing. Or, the housing can be custom built for particular buyers. Not a lot of risk, except perhaps for the value of putting in the infrastructure. A Chapter 40B project on the other hand is issued by way of a "comprehensive permit." These permits generally have strings attached, by the community - say it must be used within a particular time period - or the funding agency - which requires the funds be drawn down within a particular fiscal year. Either of these force construction to advance even if the market cannot support the amount of housing being proposed. Below is a one such development. To activate the permit, the road has been put in and land clearing begun.

This site is less dramatic than many others that are out there. I read regularly the postings to the egroup Reform40B. This group lists many half built projects that have stalled across the state. These projects do not provide the promised housing, either for those needing affordable homes, of for the general labor market.

These shortcomings illustrate the problems with supply-side considerations when thinking about the relationship between housing and the economy in general. It argues that the state housing programs need to be re-thought. We need more focused housing programs, not as many projects spread haphazardly through-out the state to meet the 10% rule in every community, but to ensure that regions are meeting their true needs, this includes protection of open space and focusing jobs and housing in areas served with appropriate infrastructure. While 2 acre lot sizes are not justified across the board, I firmly believe that certain areas should be pushed to open space protection zoning and agricultural protection zoning with lot sizes that are appropriate to ensure that the state does not lose its farms and open areas to ill-thought-out housing programs.

As a closing thought in this post, is it appropriate to build affordable housing in an area not served by public transit, then increase the gasoline tax to a level that is harmful to these people who must live in this remotely located affordable housing? Is our tax policy consistent with our housing policy? Or are we making it necessary for the working poor to support the transportation services made available to the high end jobs located in downtown Boston?

The Massachusetts Gasoline Tax Proposal

2009-02-21T10:52:00.003-05:00

The governor has just proposed to increase the Massachusetts Gasoline Tax. Putting on my Transportation Planner hat for a while, I can see pros and con's to this proposal. Obviously, there is a need to ensure that alternatives to the automobile are properly funded. The gasoline tax has always and should continue to serve this purpose. However, is it appropriate to use the gasoline tax as the primary source of revenue to replace tolls? That is a harder argument to swallow.

The tolls on the turnpike, the tunnels and the bridges pay for the debt service and maintenance of a key set of facilities in the heart of Boston. Specifically speaking, the Central Artery and Tunnels. For years these facilities sucked up the major portion of the federal roadway dollars destined to the state. As with many who do not use these facilities on a daily basis, it is hard to understand the argument that these facilities need to be paid for by people driving through Dalton or Cummington.

It is my personal belief that unless there are measures put into place to ensure that the revenue from the gasoline tax is returned in equal portion to the commuter sheds paying the taxes, there will continue to be an unfair redistribution of income from some of the less served areas of the state in favor of the areas with greater levels of transportation facilities. For instance, the Cape Cod Regional Transit Authority does not have the financial resources to ensure that even the public transit needs of people simply trying to travel around the two densest communities on the Cape, Barnstable and Yarmouth, have adequate opportunities to forgo the car, let alone make it possible for people living in the other communities served by the authority could make such a choice.

Clearly, this will lead to more vehicle miles per capita being traveled in suburban or rural areas, where transportation choices are the most limited. A fair mechanism is needed to return gasoline taxes to these areas to increase the choices that are available.

Here are a few thoughts on what I think could make the proposal more fair.

Parking Taxes - The Boston/Cambridge Parking Freeze really isn't. The freeze only affects public parking, forcing up the costs of people who may have an occasional need to travel to the city, while not truly discouraging employee parking. A parking tax of perhaps $2 per day levied on ALL (public and private) parking spaces within the core of the Boston Metropolitan Region should be instituted. This tax revenue should be dedicated to the MBTA.

Tolls - The governor wants to avoid toll increases on the Turnpike, tunnels and bridges leading into Boston, while at the same time suggesting that new toll facilities should be explored at the major entry points to the state. There are a number of problems with this logic. First, the toll facilities are ones which have parallel mass transit services. Metrowest, one of the noisier areas when it comes to tolls, has rail service and, from Route 128 on in, rapid transit services. There are similar services to the other areas affected by the existing tolls. If one of the goals is to reduce traffic congestion in the city, spreading the cost of maintaining these core transportation services to the hinterlands of the state, should not come with the added impact of promoting more automobile travel in the most congested portion of the state. The entire concept of congestion pricing would argue for increasing tolls, at least during the morning and afternoon rush hours. Secondly, adding tolls at certain border crossings need to be approached with due care. Would the economies of Lawrence of Haverhill or Lowell be adversely affected by tolls on Interstate 93 or Route 3 at the borders? Will we be telling potential visitors to stay home, that we do not want their shopping or tourist dollars? Will we be punishing workers in our state, especially in border communities, who were able to find more affordable housing in adjacent states? Will we be telling our own residents who may work in bordering states that it is time for them to leave? Tolls on our borders will have major image impacts, most of which will be negative.

Gasoline Taxes - Yes, a gasoline tax hike is necessary and inevitable. The tax, however, should be balanced with the other forms of transportation revenue and not be a sole revenue source. When the gasoline tax goes up, there will be impacts through-out the economy. Disposable income of residents will be reduced as people will have to spend a greater portion of their income on gasoline. When gasoline prices jumped to $4 per gallon over the last few months, other, discretionary spending was reduced. Gasoline prices will also impact other consumer products. Basic staples will cost more as transportation costs increase. Overall, consumer spending capabilities will decrease, especially in areas of the state where there are few alternatives to the automobile.

Some will argue that we need to spend our way out of this recession. That is most definitely true. However, we need to use care in how we generate the revenue to meet this crisis. If we generate the revenue in a fashion that simply takes other funds away from our residents, we need to fully understand whether there is a net benefit. Will the expenditures triggered by increasing transportation revenues (whether through the proposed gasoline tax or a balance or revenue options) off-set the lost spending capability of those who have to pay the new taxes? If not, then the proposal will be a drag on the economy, as opposed to the push that we are seeking. Unfortunately, the state needs a balanced budget and in order to support transportation bonds that could increase immediate spending above the immediate tax revenues generated, we will need to raise additional revenue. I just hope we can see real balance in both how the revenue is generated and in how the revenues are distributed across the state.

Land Use Partnership Act and, quite possibly, Community Planning Act Level Playing Field Idea

2009-02-16T17:17:00.001-05:00

In my last post I suggested I had some ideas on how to level the playing field for the development review process. The idea follows upon some concepts raised in the Land Use Partnership Act and the Community Planning Act as well as a variety of streamlined permitting reports, including that written by the MAPC. The idea would be to provide a common project development process whether you are going to be seeking Site Plan Review, Special Permit Review, Subdivision Approval, or an Approval Not Required Plan. The last possibly being no longer needed in reality.

My idea would be to revise Chapter 40A Section 6, specifically the second, fifth and sixth paragraphs. The process currently creates a situation where a person wanting to do something with their land could undertake a significant investment, only to have the rug pulled out from underneath him or her, especially in the Special Permit process. Here is where I would borrow a little from LUPA:

Step One in the development process would be to allow for a filing of a Letter of Development Intent, as called for in LUPA. The Letter would allow the developer with a 12 month window within which to complete site analysis and prepare plans for a development project. The filing would protect that parcel of land from a zoning change during that twelve month time period. I would, to protect the towns against speculation, limit the filing of a Letter of Development Intent to no more than one such letter in any 24 month time period. The idea provides a developer with expectations, and protection from a zoning proposal being petitioned as soon as people see the surveyors on the land.

The application would have to be filed within the 12 month window provided by the Letter of Intent.

Step Two would deal with the life of the approval. Here, I would suggest keeping, generally, the same approval life as we presently have, with a few changes. The changes suggest compromises that benefit both the community and the applicant. The idea would be that all approvals are good for a two year time period that is renewable under the original terms as long as substantial progress is being made on implementing the project that has been approved. Substantial progress would need to be determined as part of the renewal process and should include consideration of market conditions.

Obviously, this needs some discussion and fleshing out. It provides better development anticipation, creates similar paths for all developments, and provides an understandable process for the life of a project, while not leaving un-built projects protected forever.

Land Use Partnership Act - Random Thoughts on How to Fix It - Zoning Freezes

2009-02-14T14:20:00.001-05:00

The Land Use Partnership Act suggests that the permitting process at the local level is broken. Unfortunately, the document has several areas where the concept of plan approval, the granting of special permits, and the issuance of building permits are interchanged. In this post I am going to address the issue of the freeze discussion found in Section I 6, specifically the replacement of the fifth paragraph of the existing Chapter 40A Section 6.

I have had discussions which suggest the proposed is intended to shorten the grandfathering time period for subdivisions. At a minimum the section is so confusing that it is quite difficult to see, especially with adding an additional step. If the goal is to only provide zoning protection to a plan that is already filed, let's simply do that.

As it was explained to me, the letter of intent gets filed before first notice, that sustains the zoning freeze. That part I see. The first unclear aspect for me is related to plan filing. I interpret part of this to suggest the freeze is for an extended period - the eight year reference related to the letter filing. In another location it suggests that a preliminary plan or definitive plan must be filed before the vote on the amendment.

A second confusion is, the reading of the portion of the amendment related to the letter of intent, suggests that protections could be made for a project on a parcel that does not need to be subdivided. However, this is not followed up on, and the next paragraph of Chapter 40A Section 6 is not touched.

I will address how Section I subsections 5 and 6 (and the untouched ANR paragraph) could all be tied together in my next post. That will be one that should generate significant discussion -as it would expand some protections for land owners, provide a more level playing field in the permitting process, while also providing some greater limitations on grandfathering as well.

First, lets address how to change the existing Chapter 40A Section 6 fifth paragraph to meet what has been proposed. I would suggest we get rid of the confusion created by adding the additional step of the letter of intent. Either of the following would meet that goal:

Replace the fifth paragraph of Section 6 of Chapter 40A with the following:

If 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, and written notice of such submission has been given to the city or town clerk the development described in such definitive or preliminary plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of such submittal, for a vesting period that ends eight years from the date of such written notice of submission; provided that the development described in such written notice shall be subject to subsequent amendment of the zoning ordinance or by-law, if the first notice thereof was posted prior to such written notice of submission, ~~before the~~ ~~effective date of ordinance or by-law~~, the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of the first such submission while such plan or plans are being processed under the subdivision control law~~, and, if such definitive plan or an amendment thereof is finally approved, for eight years from the date of the endorsement of such approval,~~ except in the case where such plan was submitted or submitted and approved before January first, nineteen hundred and seventy-six, for seven years from the date of the endorsement of such approval. Whether such period is eight years or seven years, 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.

Or even simpler to strike the words illustrated from said paragraph:

If 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, and written notice of such submission has been given to the city or town clerk ~~before the effective date of ordinance or by-law,~~ the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of the first such submission; provided that the development described in such written notice shall be subject to subsequent amendment of the zoning ordinance or by-law, if the first notice thereof was posted prior to such written notice of submission, while such plan or plans are being processed under the subdivision control law, and, if such definitive plan or an amendment thereof is finally approved, for eight years from the date of the endorsement of such approval, except in the case where such plan was submitted or submitted and approved before January first, nineteen hundred and seventy-six, for seven years from the date of the endorsement of such approval. Whether such period is eight years or seven years, 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.

I will admit, that I am just as suspicious of how a process can be abused as the next guy. I honestly can see a property owner filing a letter of intent with the Planning Board and Town Clerk immediately after each town meeting, at the same time the submit a letter requesting to be notified of any zoning changes being posted. Thus, with the letter of intent, the sophisticated developer would be given a far more advantageous position than the typical property owner. Is this really what we want to be proposing?

Land Use Partnership Act - Random Thoughts on Changes

2009-02-12T09:23:00.006-05:00

Yesterday I received an email with the following query:

"I have reviewed LUPA a number of times via my work here .... My understanding is that the annual target in LUPA is .5% per year over 10 years year. Your posts reference 1% per year. Did this change or are you referencing a different requirement?"

While Section II of the proposed statute is NOT my primary focus for fixing this legislation, the exchange illustrated the amount of grey area within the proposal. And, as we all know at the local level, grey areas in regulations always take the most anti-community interpretation when they wind up in court.

The issue is, that the questioner's read of the legislation is that a certified plan community must only meet a 0.5% annual growth figure. This is taken from the definition of the "Housing Target Number" in combination with the number of years the plan will be approved for (10 years).

"Housing target number” shall mean a number equal to five percent (5%) of the total number of year-round housing units enumerated for the municipality in the latest available United States census as of the date on which the plan was submitted to the regional planning agency. "

I get the 1% figure from the restrictions that Section II 7 (b) place on certified plan communities:

(b) Following the municipality’s effective date, a zoning ordinance or by-law that limits the number of new housing units within residential development districts for which building permits may be issued in any twelve month period to an amount equal to or greater than one-fifth of the housing target number (but in no event less than ten new housing units) shall not be declared exclusionary or otherwise against public policy.

If you look at II 7 (b), it requires that a growth limitation by-law be consistent with public policy. That public policy calls for 1/5th of the housing target number (5%) be accomplished in any 12 month time period. So, 1/5th of 5% is 1%, this means that to adopt a growth limitation by-law you must allow for a 1% annual growth. To me it is inconceivable that the housing to be built in a non-growth cap community would be set to a number that is lower than the "public policy" figure in II 7 (b).

Taking the sender's comments to represent what was intended by the drafters of the legislation, a position I personally believe is hard to support based upon the supporting documents on the state site and the recent MHP housing study that the Globe published and I reported on here, The following changes would make Section II far more pallatable. I would propose adding the wording in bold and deleting the wording that appears in red.

“Housing target number” shall mean a number equal to five percent (5%) of the total number of year-round housing units enumerated for the municipality in the latest available United States census as of the date on which the plan was submitted to the regional planning agency to be achieved over the ten year life of the certified plan.

This clearly establishes the target as being an annual average of 0.5% housing permit issuance, achievable in many more communities than my current interpretation.

(b) Following the municipality’s effective date, a zoning ordinance or by-law that limits the number of new housing units within residential development districts for which building permits may be issued in any twelve month period to an amount equal to or greater than one-fifth of the pro-rata annual housing target number (but in no event less than ten new housing units) shall not be declared exclusionary or otherwise against public policy.

This may, again benefit far more communities than the current proposal. It essentially establishes that a housing cap community would need to provide for an annual building permit issuance of 0.1%. Previously I picked on Worcester and Alford as housing examples, so I will do that again. The 0.1% housing growth would require a minimum of 70 housing permits to be issued in Worcester under a growth cap, as opposed to the 350 permits under the 0.5% interpretation, or 704 permits under the 1% interpretation. In Alford, the numbers would be a bit different. Alford has 173 year round housing units. The 1% interpretation per year would require essentially ten housing units per year. While 1% per year is 2 housing units the minimum number under II 7 (b) is set at 10 housing units, over the life of a certified plan Alford would have to issue building permits for 100 new housing units - 57.8% growth. Under the 0.5% interpretation, there is still that II 7 (b) limit of a minimum of 10 housing units, so while the 0.5% interpretation would require just 1 housing unit, there is still the issue that "public policy" is established at a minimum of 10 housing building permits annually. My proposal would eliminate the 10 building permit minimum, it would result in a community such as Alford to have to provide, perhaps as little as 2 housing units over a ten year time period, but given the focus on concentrated development, protecting open areas, etc., this may actually be supportive of public policy. Even with this, we would need to figure out how a building moratoria - currently a very legal option for a short term "catch your breath" time period - fits into this equation.

(d) If at any time more than two years after the municipality’s effective date the total number of housing units for which building permits have been applied for within the residential development districts since the municipality’s effective date is greater than the housing target number (adjusted pro rata for the number of years since the municipality’s effective date), but the total number of housing units for which building permits have been issued within the residential development districts is less than the pro rata housing target number, then the provisions of this subsection shall be in effect. During such time period, any applications for building permits or other local land use permits for residential development within such residential development districts shall deemed constructively approved if not acted upon within 180 days after receipt of permit applications. In addition, an application received under this section shall be subject only to those conditions that are necessary to ensure substantial compliance of the proposed development project with applicable laws and regulations; and it may be denied only on the grounds that: (i) the proposed development project does not substantially comply with applicable laws and regulations, or (ii) the applicant failed to submit information and fees required by applicable laws and regulations and necessary for an adequate and timely review of the development project. The foregoing provisions shall no longer be in effect once the total number of housing units for which building permits have been issued within such residential development districts equals or exceed the pro rata housing target number.

Finally, I would suggest deleting Section II 7 (d) altogether. It essentially penalizes communities for circumstances that are completely out of a community's control. Whether a community issues 0.5% or 1% of its year round housing units in new building permits is really irrelevant to the discussion at this point. IF a community is meeting the housing target number requirements for building permit issuance, WHY should it be penalized? In my own opinion, if a community does not have any permit limitation device in place, there should be rewards for that community. On the flip side, if a community needs to limit growth due to the need to provide water or sewer or school improvements, public policy should be to direct public spending to address those needs, not to make them less eligible for the discretionary spending, THAT would allow them to remove the limitation.

Something to think about - The Messages We Send

2009-02-09T18:07:00.002-05:00

So, driving down Route 6 the other day I saw a bumper sticker "Don't Hassle Me, I'm Local." It was located on one of our local contractor's vehicles. It really got me to wondering, is our local economy so strong that the local contractor's can afford to chase off business?

The fact is, the Cape is a tourist economy. We need them, probably more than they need us. It may be time for everyone to tone down the anti-tourist rhetoric and recognize that tourists are our cash cow.

When you arrive in Hawaii, you are greeted with a lei. When you arrive on the Cape you see stickers that say "Since they call it tourist season, why can't we shoot'em?"

The Massachusetts Office of Tourism reports that dollar spent on a non-business hotel stay there is an additional $3.52 spent in the local economy. This adds up into the hundreds of millions of dollars spent in the local economy. Our beaches are clearly our greatest resource, bringing significant amounts of money. If we do not work to keep those expenditures here on the Cape, and make the tourist feel welcome, then we may as well hand them tourist brochures for the Jersey Shore, Myrtle Beach, or Virginia Beach.

Clinton once said "it's the economy stupid." We on the Cape need to realize that our economy relies heavily on the tourists and that we should not be shoeing them away.

The Land Use Partnership Act - Where to From Here?

2009-02-06T15:03:00.003-05:00

Yesterday I met with two representatives of the Massachusetts Permit Regulatory Office. They genuinely seemed interested in accepting recommendations on the proposed Land Use Partnership Act.

Given I have probably been the most outspoken person on this particular proposal, I will start to give my thoughts on what should be changed and what should just be deleted. I really want to encourage other planners out there to feed my you ideas, either publicly or anonymously, however, you feel like being involved. I will do my best to try to incorporate your thoughts.

I think the comments need to be tied directly to what they are suggesting should be changed, I do not think, at this time, their proposal should be laden down with new ideas. As planners, we need to take control of the Planning and Zoning Acts ourselves, and not look to tie too much of our desires onto other legislative proposals.

Just my thoughts. Your opinions are greatly appreciated.

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

2009-01-30T15:02:00.001-05:00

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)

2009-01-30T08:00:00.001-05:00

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

2009-01-29T23:23:00.004-05:00

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)

2009-01-29T11:56:00.001-05:00

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)

2009-01-29T08:42:00.002-05:00

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)

2009-01-28T20:32:00.002-05:00

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)

2009-01-27T14:38:00.000-05:00

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.

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)

2009-01-26T14:38:00.000-05:00

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)

2009-01-25T14:37:00.001-05:00

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.

[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)

2009-01-24T14:33:00.002-05:00

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

2009-01-22T21:30:00.003-05:00

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)

2009-01-21T17:28:00.001-05:00

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?

2009-01-20T14:32:00.003-05:00

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)

2009-01-20T11:46:00.001-05:00

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.

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.

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.

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.

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.

[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)

2009-01-19T17:54:00.001-05:00

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.