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."

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.

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

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).

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.

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? 

Land Use Partnership Act - Random Thoughts on Changes

Yesterday I received an email with the following query:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Land Use Partnership Act - Where to From Here?

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

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

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

Just my thoughts. Your opinions are greatly appreciated.

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

I am going to try to address this section in one post, which will just about wrap up my personal thoughts on this legislation. My biggest concern is that, while they are proposing changes that "will only affect certified plan communities" they are making changes to portions of Chapter 41 Section 81 that could be viewed as being implemented more broadly. Adding simple caveats into the legislation reflecting more clearly what is intended (which has been placed in one of the definitions changes being proposed).

III. MODIFICATIONS TO LOCAL LAND USE REGULATION AFFECTING CERTIFIED PLAN COMMUNITIES

1) ANR, minor subdivision review

Insert the following new paragraphs within Section 81L of Chapter 41:

“Certified plan community” shall have the meaning set forth in Section [2] of Chapter 41.

This change is simple enough, giving Certified Plan Communities recognition within Chapter 41.

“Minor subdivision review ” shall mean an alternative method of approval under the subdivision control law, applicable to any proposed division of a tract of land into four or fewer lots, under which: (a) no preliminary plan is required; (b) approval is granted by a simple majority of the planning board; (c) decisions are made within 60 days, or else deemed constructively approved, as defined in Section [2] of Chapter 41; (c) approval shall be based solely on the compliance of the lots shown with reasonable rules and regulations regarding the adequacy of access, utilities and stormwater drainage controls and on the compliance of the lots shown with the zoning ordinance or by-law; and (d) such rules and regulations may include a requirement that two or more of the lots have shared access to an existing public way, but may not impose design or construction requirements on such shared access other than those minimally necessary to provide for public safety. Lots approved under minor subdivision review may not be re-subdivided so as to create additional lots under minor subdivision review for a period of ten years after initial approval.

Here the proposal is to add a new definition for plans subjected to Minor Subdivision Review. We are in a definition section, this definition reads like it could be applied in any community. The definition should be changed to add reference to the community being a Certified Plan Community. This really should be right up front, I would suggest that the change be made in the opening clause such that it might read "“Minor subdivision review ” shall mean an alternative method of approval in Certified Plan Communities under the subdivision control law...."

Modify the definition of “subdivision” within Section 81L of Chapter 41 as follows:
“Subdivision” shall mean the division of a tract of land into two or more lots and shall include resubdivision, and, when appropriate to the context, shall relate to the process of subdivision or the land or territory subdivided; provided, however, unless a municipality is a certified plan community and has in effect minor subdivision review procedures, that the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision within the meaning of the subdivision control law if, at the time when it is made, every lot within the tract so divided has frontage on (a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon. Such frontage shall be of at least such distance as is then required by zoning or other ordinance or by-law, if any, of said city or town for erection of a building on such lot, and if no distance is so required, such frontage shall be of at least twenty feet. If a municipality is a certified plan community and has in effect minor subdivision review procedures, then any division of a tract of land into two or more lots, including resubdivision, shall be deemed to constitute a subdivision within the meaning of the subdivision control law, except as provided in the following sentence. Conveyances or other instruments adding to, taking away from, or changing the size and shape of, lots in such a manner as not to leave any lot so affected without the frontage above set forth, or the division of a tract of land on which two or more buildings were standing when the subdivision control law went into effect in the city or town in which the land lies into separate lots on each of which one of such buildings remains standing, shall not constitute a subdivision. Within a certified plan community that has adopted minor subdivision review procedures as of the municipality’s effective date, a tract of land that was divided into two or more lots pursuant to Chapter 41, Section 81P of the General Laws prior to the municipality’s effective date, but after December 1, 2008, shall be deemed a subdivision within the meaning of the subdivision control law with respect to the lots so created for which a building permit has not been issued by the municipality prior to the municipality’s effective date.

This section has the verbiage that should have been included in the previous definition change.

The final change deals with adding additional verbiage to Chapter 40A Section 6. Outside of the fact that Section 6 is already long, tedious and difficult to read, the additional wording really only applies to communities with certified plans and reads as follows:

2) Zoning plan freeze

Insert the following new paragraph after the new paragraphs that follow the new paragraphs of Section 6 of Chapter 40A (see I(A)(6) above):

Within a municipality that is a certified plan community, if a declaration of development intent is submitted to a planning board on or after the municipality’s effective date, and written notice of such submission has been given to the city or town clerk, the development described in such declaration shall be governed by the applicable provisions of the zoning ordinance or by-law and all other local land use regulations, if any, in effect at the time of such written notice of submission, for a vesting period that ends either: (a) three years from the date of such written notice of submission, or (b) to the extent the land shown on the plan has been previously been disturbed, and if there has been substantial investment in site preparation and/or infrastructure construction within such three years, five years from the date of such written notice of submission; provided that (i) the development described in such declaration shall be subject to subsequent amendment of the zoning ordinance or by-law or of any other local land use regulations, if the first notice thereof was posted prior to the date of such written notice of submission, and (ii) the development described in such declaration shall be subject to subsequent amendment of the zoning ordinance or by-law or of any other local land use regulations, unless a definitive plan, or a preliminary plan followed within seven months by a definitive plan, is submitted to a planning board for approval under the subdivision control law prior to such amendment, and, if such definitive plan or an amendment thereof is thereafter finally approved. Whatever the length of such vesting period, it shall be extended by a period equal to the time which a city or town imposes or has imposed upon it by a state, a federal agency or a court, a moratorium on construction, the issuance of permits or utility connections. The provisions of this paragraph shall not apply to development substantially different in use or substantially greater in extent from the development described in the declaration of development intent.

All the proposed changes in this section provide relief to communities with certified plans. I am not really sure whether the change from Approval Not Required to Minor Subdivision Approval is really all that big a change. It would be great to have the extra time and the requirement that the lots comply with zoning, which ANR lots do not have to do, but the costs associated with getting certification may be too great a burden.

Similarly the zoning freeze change to only three years, over the current eight sounds great, but the other changes that are proposed, the letter of intent to develop, the minimum two year life of a permit, etc, are, again, too great a cost.

The final section of the proposed act, Section 4, deals with providing funding, outside of the fact that $1,000,000 will provide far too little funding for communities to develop these plans, I really do not have anything to say.

Anyway, thanks for listening to my month long rant on this proposal. Hopefully it will open up some eyes, get the committee that crafted this looking at the proposal from the local level, and withdraw it to re-write the act.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 11)

This comment will focus on Section 11 of Part 2 of the proposes Land Use Partnership Act. It is probably the best aspect of the entire legislation, and should be made much broader. First, the section reads as follows:

11) Consideration under State Programs

State agencies responsible for regulatory and/or capital spending programs that have a material effect on land use and development within certified plan communities shall take into account the land use goals, objectives and policies of such communities, as set forth in their certified community land use plans, in administering such programs.

The section calls for state programs and regulations to be sensitive to the goals, objectives and policies of local plans certified under this section. This is laudable, but should be expanded upon. The state should be seeking to encourage local planning. Planning that is consistent with Chapter 41 Section 81D. As such, the state should embrace and seek to support the goals, objectives and policies of any plan endorsed by town meeting that meets the stated goals of the existing state planning act.

LUPA Sponsors

Found this on the CHAPA website. Please let your legislators know this act has many problems for your community.

Land Use Partnership Act

Lead Sponsors: Rep. Kevin Honan and Sen. Harriette Chandler

STATE REPRESENTATIVE KEVIN G. HONAN
State House
District Office
Room 38
192 Faneuil Street
State House
Brighton, MA 02135
Boston, MA 02133

Party Affiliation - DEMOCRAT

DISTRICT REPRESENTED: Seventeenth Suffolk. - Consisting of precincts 3, 5, 6, 7, 8, 9, 10, 11 and 12 of ward 21, and precincts 2, 3, 6, 9 and 10 of ward 22, of the city of Boston, in the county of Suffolk.

SENATOR HARRIETTE L. CHANDLER
State House
Room 312-D
Boston, MA 02133

Party Affiliation - DEMOCRAT

DISTRICT REPRESENTED: FIRST WORCESTER. & #151; Worcester, wards 1 to 4, inclusive, 9 and 10, Berlin, Boylston, Clinton, precincts 3 and 4, Holden, Northborough, precincts 1, 2 and 4, Paxton, Princeton and West Boylston.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 10)

SHORT SECTION WITH MAJOR IMPACTS!!!!

Section 10 directs state discretionary spending towards certified plan communities. This will reduce funding opportunities to any community that is unable to meet the requirements of this proposal. This could reduce, or eliminate, access to state discretionary funding for many communities. Essentially penalizing communities unable to meet the requirements, even though the requirements of this section are impossible for most communities to achieve - both urban and rural. If nothing else changes in this act, the legislature needs to know that this particular section clearly needs to be removed from the act.

Section 10 reads:

10) Priority for Infrastructure Funding

The executive office of housing and economic development, the executive office of energy and environmental affairs, the executive office of transportation, and the executive office of administration and finance shall, when awarding discretionary funds for local infrastructure improvements, give priority consideration to infrastructure improvements identified in the certified plans of certified plan communities.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 9)

This section is very simple establishing the valid life of the plan and the subsequent impacts on certification. The section reads;

9) Expiration and renewal of certified plan community status; amendments.

(a) A municipality’s status as a certified plan community shall expire ten years after the municipality’s effective date, unless a renewal plan, together with any necessary implementing regulations, is prepared, certified, and adopted in accordance with the provisions hereof prior to such date. Each such renewal plan shall also expire in ten years.

(b) From and after a municipality’s effective date, any material amendment to a certified plan or to any certified implementing regulations shall be prepared, certified and adopted in accordance with the provisions hereof. The Interagency Planning Board may by regulation define categories of amendments that shall be deemed non-material.

This is pretty straight forward, the plans and certifications are valid for a ten year time period, this is pretty standard. The requirement for renewal matches normal requirements for updating and readopting local plans. The amendment process also seems rather straight-forward.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 8)

Section 8 of the Land Use Partnership Act establishes a review process by which the Interagency Planning Board reviews the actions taken by a regional planning agency. Essentially this section provides an avenue for relief by a community if it feels that it has not been treated fairly by its regional planning agency. However, it also reads like "Big Brother" keeping tabs on what happens at the regional level due to the provision for the Interagency Planning Board to, at its own initiative, review actions of the regional planning agencies. Let's look at Section 8 piece by piece:

8) Review of certification by regional planning agency

Any certification or determination of non-certification by a regional planning agency with respect to a plan or implementing regulations or a material amendment of either is subject to review by the Interagency Planning Board. The Interagency Planning Board may, upon the request of the subject municipality or upon its own motion, review any such decision in an informal, non-adjudicatory proceeding, may request information from any third party and may modify or reverse such decision if the same does not comply with the provisions hereof.

Plain and simple, why do we need to give this Interagency Planning Board the ability to review an action by a regional planning agency without an appeal by a community. Giving the IPB the ability to initiate its own review, places it into a prosecutor, judge and jury wrapped into one.

If a municipality provides written notice to the Interagency Planning Board of the certification by a regional planning agency of a plan or implementing regulations or a material amendment of either (including a deemed certification resulting from a regional planning agency’s failure to act), then the board may only review such certification if it commences such review with 60 days of such certification.

Okay, I have searched the proposed legislation and have not found a requirement for a community to notify the IPB of an approval, so why would a community provide such a notification? On the flip side, if a community does not notify the IPB, does this mean that the restriction on the IPB review never expires? Seems like a step has been considered, notification to the IPB, but not actually included in the proposal. To be honest I do not believe there is a need for such a review authority.

The Interagency Planning Board may through regulation establish a procedure for reviewing and approving guidelines prepared by regional planning agencies to be used in the certification of plans, implementing regulations and material amendments. If a certification or determination of non-certification under review by the Interagency Planning Board has been issued by the regional planning agency based upon an approved guideline, then the board may only modify or reverse such decision for inconsistency with the approved guideline.

We need procedures, however, these procedures need to be established prior to any plans being reviewed. If they are not, then it leads to a suggestion that the procedures are being created to keep cities, towns and regional planning agencies in check.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 7)

Section 7 of this section of the Land Use Partnership Act is particularly scary. The Lewis Builders cases in New Hampshire essentially established a "builder's remedy" for developers to argue that a community's zoning did not implement or contradicted the local plan. At a minimum, the proposals within this document does exactly the same - if not outright declares a communities old zoning invalid. Communities pursuing certification under this statute will need to clearly understand that to certify their plan, and zoning calls for far more than bringing the plan, and proposed zoning changes through the regional review process prior to adoption. It really also entails having the regional planning agency review the town's complete zoning scheme reviewed and certified - even the zoning that is not changing. After having the full zoning scheme certified, the entire zoning by-law will need to be re-adopted by the town. Failure to carefully follow this process will trigger a determination that any existing zoning not certified as consistent as void. Such an occurrence will leave large sections of communities without any zoning protection at all.

In addition, there are provisions in the proposal that essentially provide certified communities no protection at all. In fact, it is so open to private manipulation that it leaves communities with almost no protection even if they are certified!

7) Effect of certified plan status on zoning and land use regulation

(a) Following the municipality’s effective date, local zoning ordinances or by-laws, subdivision rules and regulations, and other local land use regulations (other than certified implementing regulations) which are determined to be inconsistent with the certified plan or the certified implementing regulations shall be deemed invalid. Such a determination may be sought and obtained through any means otherwise available by statute for the determination of the validity of such land use regulations. Any material amendment to a certified plan or certified implementing regulations that has not been prepared, certified and adopted in accordance with the provisions hereof shall be presumed to be inconsistent with the certified plan.

While not specifically calling for certification of existing zoning, this section leaves open the challenge as inconsistent any existing zoning that has not been certified. That's the bad part of this regulation. Unfortunately it outweighs the good part, which is the protections provided by requiring changes to the implementing regulations to be certified - something that protects towns from hostile attacks on zoning by special interests.

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

This is an attempt to legislate authorization for actions that have had fairly strict judicial review. Outside of Cape Cod, communities have been restricted to proving a need for a building cap and limiting the length of the cap to allow for eventually solving the problem that led to the cap. This provision allows for an open ended restriction on building, as long as the community remains certified. However, the requirement is based upon having the residential development districts in place, and only allows for limiting building permits within these designated districts. It does not limit building permits town-wide, or provide any level of protection for communities outside of the residential development districts.

(c) Following the municipality’s effective date, a zoning ordinance or by-law that requires a minimum lot area of two acres or more for single-family residential development upon farmland, forest land or other land of environmental resource value shall not be declared exclusionary or otherwise against public policy.

Not really sure what this grants to communities with certified plans. The courts have already established the large lot zoning can be implemented if it is the minimum necessary to protect a valued resource, specifically the types of areas that this seeks to protect. Essentially the proposal grants towns something they already have. This begs the question, will adding this section to the certified plan community's list of protections alter the existing court position on the use of such standards in non-certified plan communities? I for one do not want to find out. This section should be stricken quickly from this proposal, and leave the existing court standards unchanged.

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

This provision is very difficult to follow, lets break it into its parts to decipher:

If at any time more than two years after the municipality’s effective date the total number of housing units for which building permits have been applied for within the residential development districts since the municipality’s effective date is greater than the housing target number (adjusted pro rata for the number of years since the municipality’s effective date), but the total number of housing units for which building permits have been issued within the residential development districts is less than the pro rata housing target number, then the provisions of this subsection shall be in effect....

So, to start, the town issues building permits that exceed what they are required to issue, but the builders do not build those units.....

....then the provisions of this subsection shall be in effect.

...special restrictions come into play.

During such time period, any applications for building permits or other local land use permits for residential development within such residential development districts shall deemed constructively approved if not acted upon within 180 days after receipt of permit applications.

Even though the community met its requirements to provide housing opportunities, and the permits are issued, the fact that builders choose not to build These special provisions essentially places the fault on the community and make things easier for private developers to acquire more permits....

In addition, an application received under this section shall be subject only to those conditions that are necessary to ensure substantial compliance of the proposed development project with applicable laws and regulations;

...even to the extent of removing any conditions the town may have placed on the application....

and it may be denied only on the grounds that: (i) the proposed development project does not substantially comply with applicable laws and regulations, or

...restricts a community's ability to deny a project that does not fully comply with zoning (here we get that substantially comply standard established again which suggests that projects that do not strictly comply have some rational basis for approval)...

(ii) the applicant failed to submit information and fees required by applicable laws and regulations and necessary for an adequate and timely review of the development project.

Gee, no brainer, lack of adequate plans or application fees would seem to equal no application actually being filed, anywhere except Massachusetts that is.

The foregoing provisions shall no longer be in effect once the total number of housing units for which building permits have been issued within such residential development districts equals or exceed the pro rata housing target number.

And, finally, as long as the builders do not build housing equal to 2% of the housing in the community over a two year time frame the certified plan provides the community no protection.

As I said, this section is quite scary.

Personal Thoughts on the Land Use Partnership Act - New Framework for Local/Regional Planning (Part 6)

Section 6 addresses the process for having zoning by-laws certified as consistent with the required plan. The section is merely process. The one positive about this section is that having zoning found consistent with the plan described in Sections 3 - 5 provides a community with protections from the changes the proposal imposes on communities without certified plans and by-laws.

As I previously discussed, the legislation calls for changes to how zoning gets adopted, allowing for a simple majority at town meeting as opposed to the current super majority. The changes also allow for increased levels of grandfather protection in un-certified communities. These changes will allow for special interests to petition for zoning changes that may be inconsistent with the local plan adopted under Chapter 41 Section 81D, stack town meeting to ensure passage, submit an intent to develop based upon the new zoning, and thereby acquire grandfather rights before proper community planning can recover.

The processes in Section 6 establish that, in a certified plan community, before a zoning change can go to town meeting, the zoning change must be certified by the regional planning agency as consistent with the local plan. Essentially halting in their tracts special interest zoning petitions.

While I have not thought out the ramifications, it may be appropriate for such a review of all zoning changes in any community - especially if the proposal to change the process and allow easier grandfather rights to be established were to be approved.

Section 6 reads:

6) Certification and adoption of implementing regulations

(a) Prior to or following municipal adoption of a certified plan, the municipality may prepare implementing regulations. To assist municipalities in this effort, the regulations to be promulgated by the Interagency Planning Board hereunder shall include at least one model provision for implementing regulations for open space residential design, low impact development, and clean energy generation/cogeneration facilities that would satisfy the standards hereof.

(b) The chief executive officer of the municipality may submit the implementing regulations to the regional planning agency for certification. Within 90 days of receiving a submission, the regional planning agency shall determine whether the implementing regulations are consistent with the certified plan. The implementing regulations shall be deemed consistent with the certified plan if they effectuate the minimum standards for consistency with the Commonwealth’s land use objectives established or required by the certified plan. If the regional planning agency determines that the implementing regulations are consistent with the certified plan, then the agency shall issue a written certification to that effect. If the regional planning agency determines that it is unable to issue such a certification, then the agency shall provide the municipality with a written statement of the reasons for its determination. A municipality may re-submit for certification at any time modified implementing regulations that address the issues set forth in the agency’s statement of reasons. If the regional planning agency does not issue a certification or provide a statement of reasons within 90 days after receiving implementing regulations (including re-submitted implementing regulations), then the implementing regulations shall be deemed certified. The municipality shall have the option of submitting its implementing regulations together with its submission of its community land use plan pursuant to Section 4, in which case the regional planning agency shall review both the plan and the implementing regulations within the same 90 day period.

(c) Following certification by the regional planning agency, the implementing regulations may be adopted by the municipality by a simple majority vote of its legislative body. On the date of receipt by the regional planning agency of proof of adoption of the certified implementing regulations pursuant to a certified plan, a municipality shall be deemed a “certified plan community”. Such date shall be deemed the “municipality’s effective date”.