How Would We Zone For This Today?

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

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

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...

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?

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

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

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

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

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

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

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

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

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...

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

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

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

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?

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?

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

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

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?"

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?

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?"

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

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

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...

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

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

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

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

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

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

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?

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

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

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

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?

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

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.