Latex, A Response

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

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

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

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

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?

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

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

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

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

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?