Carless on Cape Cod: Expanding The Walking Area

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

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

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

Carless on Cape Cod - Trash Day

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

No such luck.

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

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

So trash day does not pass the carless test.

Carless on Cape Cod: The Farm Stand

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

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

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

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

Carless on Cape Cod The 20 Minute Walk

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

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

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

Carless on Cape Cod

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

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

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

I will share our experiences.  Give it a try.

"Life, Liberty and the Pursuit of Happiness" An Argument Against Zoning?

It is always interesting how the Constitution, Federalist Papers, and now even the Declaration of Independence get drawn into the land use regulatory sphere. In the linked opinion letter, the writer uses the basic principles of the Declaration of Independence to support an anti-zoning position.

"We hold these truths to be self-evident: that all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed..."

The letter writer opines that their "pursuit of happiness" extends until it infringes upon the rights of others. It is the writers belief that it is their right to develop property free of any restrictions until it is proven that they are harming others.

They seem to lose the point that the pursuit of happiness by one individual may, necessarily, conflict with the pursuit of happiness by another. My "happy" asphalt plant might conflict with his "happy" housing development. From these inate conflicts, whether in land use or just about any other endeavor, made us into a land of laws.

Zoning provides a framework within which people can pursue a level of happiness, with an understanding that their neighbor's pursuit will be in a similar vein. As I noted in a previous post, there is no conflict between land use regulations and the goals of our founding fathers. These conflicts are generally only found when the desires of a special segment attempt to ignore society in general to tie into the exemplary writing of our founders.

Planning Funnies? Maybe Not....

Citing the Constitution and the Federalist Papers planning and zoning has come under fire. Maybe my Political Science background will really come in handy after all.

It is not a new thing to see the Constitution cited when fighting land use regulations. However Penn Central and several other major cases have clearly illustrated that some level of regulation is necessary and allowable. Obviously we will always be dealing with those who feel that any regulation that limits what can happen on a property results in taking of their property. In the Winona example, the Constitution is used to fend off new flood zone restrictions as well as protections for the tops of bluffs. As we have all seen in the course of the first several months of 2010, whether in Massachusetts or Tennessee not protecting against inappropriate construction in at-risk area creates hazards to personal property and safety. Risks not just borne by the individual property owner, but all of society under some conditions.

Bringing into play the Federalist Papers is something new that I have not encountered before. The citation in the Hutchinson, Kansas situation:

"Federalist Papers" (No. 12, Nov. 27, 1787), "The prosperity of commerce is now perceived and acknowledged, by all enlightened statesmen, to be the most useful as well as the most productive source of national wealth; and has accordingly become a primary object of their political cares."

The concept argued in this passage is being used to argue that the pursuit of wealth outweighs everything. It is being used in Kansas to argue against home occupation restrictions which would otherwise prohibit manufacturing type uses within residential settings. Essentially the pursuit of individual wealth, at the expense of ones neighbors is being argued to be more important than the protection of ones neighbors individual property rights.

These two cases provide an interesting juxtaposition. I could take the argument being made in the Hutchinson, Kansas situation to argue that by allowing a home occupation that includes a machine shop or other noisy use, the City of Hutchinson is taking my property value as it relates to how I enjoy my own property. I know some will argue that this is a stretch of the takings clause in the Constitution, but it is not an unusual one - look at most challenges to permits allowing development and the appellants are arguing exactly that, diminished property values.

Looking back at the Federalist Papers, James Madison noted (Number 10, November 22, 1787)

"But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government."

So, Madison noted that property is not equally distributed, such unequal distribution was a cause for problems between people, and that resolving these conflicting interests was a necessary part of governmental regulation. One could say that Madison anticipated and addressed Hamilton's commerce issues.

Further on, in Federalist Paper Number 54, the issue was addressed again:

"Government is instituted no less for protection of the property, than of the persons, of individuals."

This document, which is credited to both Hamilton and Madison, also notes the role of government in the broadly stated protection of people and property.

The conclusion, both Alexander Hamilton and James Madison seem to have anticipated the inevitable conflicts involving property and protecting both people and property. In crafting the Federalist Papers, which helped to form the Constitution and is used to interpret the Constitution, they anticipated the need for legislation to protect property and people. Whether it be the flood zone and bluff area protections under discussion in Winona or the home occupation discussion in Hutchinson, when taken as a whole, neither the Constitution or the Federalist Papers really provide much basis to support those opposed to these proposed zoning controls.

Now This is Different

Read this from CBS News

"Straw Man" Battles Zoning Law With Wall of Hay

Would our enforcement laws provide us similar considerations?

High Speed Rail and Sprawl

I saw this article today and had to share it, High-Speed Rail As a Conduit of Sprawl. Years ago, when I wore my Transportation Planner hat, I made similar assertions regarding Commuter Rail services between Boston and Worcester. I argued, based upon data for residential development patterns along other rail lines, that the rail network between the two cities would open up new areas between them for additional sprawl. I based this upon basic travel times. If the average commuter is willing to spend XX amount of time commuting and we open up new areas to that travel time, why wouldn't you expect people to locate in those areas?

When I offered this argument, nearly twenty years ago, I was soundly criticized as being anti-transit and anti-rail. So i feel somewhat vindicated by reading quotes such as the one below. The authors are correct, before we expand high speed rail, we need to address suburban and exurban land use.

“High-speed rail will simply add another layer of access to the far-flung suburbs/exurbs and Central Valley, resulting in more mass-produced subdivisions,” warns Robert Cervero, director of the University of California Transportation Center and author of Development Around Transit.

Approval Not Required and Zoning Freezes

An interesting article out of Easthampton, MA, Easthampton Landowners move to 'defend' Route 10 property for possible development. Without getting into the merits of the zoning proposal, the article is quite revealing relative to the absurdity of grandfathering in Massachusetts. These Approval Not Required Plans lock in land use "rights" even when, in the words of one land owner, "There are no plans to develop the parcel immediately."

It really is amazing that one can vest "rights" for something that has not been even conceived in ones imagination. This truly illustrates the need to do away with the "Approval Not Required Plan".

This Is Just So Wrong On So Many Levels

I subscribe through RSS to Planning and Zoning Headlines. It provides me with an opportunity to see news reports from around the country on various planning issues. I have found it to be quite interesting to read about various planning initiatives in other areas. It is quite amazing the number of different news stories that come up everyday. However, occasionally an article comes along that makes you ask "is this for real?"

The following story out of Greensboro provides one such example, Zoning Says Students, Chemicals a Good Mix. The article clearly points out the importance of Master Planning, and sticking to it. To think that residents would essentially use other people as the "canary in a coal mine" to try to force out a long-time business is astounding. The fact that the zoning panel in the article actually agreed with the neighbors who supported a rezoning so that people would be living on top of a chemical plant is dumbfounding.

No one in the article is quoted as saying the paint factory should be rezoned. The description of the land uses in the article clearly illustrate that the heavy industry zoning for the property is appropriate. The idea of rezoning land, located on top of such a zoning district to any form of residential seems mistaken.

What Goes Around, Comes Around

The American Planning Association put up one of its historic Planning Advisory Service documents this month for all to consider, Hot Rods, Car Clubs and Drag Strips. After reading it, I was surprised how easily it would be to substitute one of today's more popular activities, off road recreational vehicles, for the hot rods.

The PAS report, from 1955 discusses how popular hot rods and drag racing were becoming in that era. It provided information on how some communities were adapting to these new demands by creating areas for car clubs and even sanctioned drag strips.

Today, the same could be said about the two, three and four wheel off-road recreational vehicles, except that the idea that areas should be set aside for sanctioned activities.

As planners, we should think about the needs of everyone in the community. Do we have significant, moto-cross type activities occurring? Do they have sanctioned, safe facilities? Can the community find a location for such a facility? If so, perhaps the same approach as took place in the 1950's for hot rods and drag strips should be taken for these newer activities.

Just something to think about. We can learn from our past, and repeating these lessons may not be a bad idea.

What goes around, most certainly comes around when it comes to recreational activities.

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.

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

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.

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?

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.

Work Force Housing - A Good Idea

The State of New Hamphire has adopted a statute that goes into effect July 1st requiring cities and towns to consider the housing needs of the work force when planning for the future of their communities. You can read about the implementation of the statute here. You can also read the actual legislation here. To an extent this statute would codify past legal determinations that have been made regarding the purposes of planning in the state.

In the past, the New Hampshire Courts have struck down zoning by-laws that limited growth to levels below the region's average growth as being exclusionary. They have also struck down design requirements that raised the cost of construction. Finally, the courts also have made findings that particular lot sizes, which lead increased housing costs, were exclusionary if the town did not also have provisions to allow for smaller lots and more affordable housing.

If you read the first paragraph of the new RSA, you will find all the general terms that make for a good lawsuit. You also find generally a good directive to towns.

674:59 Workforce Housing Opportunities.
I. In every municipality that exercises the power to adopt land use ordinances and regulations, such ordinances and regulations shall provide reasonable and realistic opportunities for the development of workforce housing, including rental multi-family housing. In order to provide such opportunities, lot size and overall density requirements for workforce housing shall be reasonable. A municipality that adopts land use ordinances and regulations shall allow workforce housing to be located in a majority, but not necessarily all, of the land area that is zoned to permit residential uses within the municipality. Such a municipality shall have the discretion to determine what land areas are appropriate to meet this obligation. This obligation may be satisfied by the adoption of inclusionary zoning as defined in RSA 674:21, IV(a). This paragraph shall not be construed to require a municipality to allow for the development of multifamily housing in a majority of its land zoned to permit residential uses.

The idea of the statute is to encourage communities to think about their housing needs. To encourage affordable housing through-out the community. The problem will come with the interpretation of reasonable and realistic opportunities. For years the NH Courts have insisted that there be some connection between the carrying capacity of the land, and the actual densities. Communities with septic systems and wells, obviously required larger lot sizes than communities with sewers or centralized water distribution. It will be interesting to see how this statute actually plays out. For instance, if a coastal community such as New Castle were to make reasonable attempts to allow for work-force housing, will they still get credit? The coastal town has some of the best water views available in the entire state. It is also one of the most desirable addresses in the Seacoast. If the higher densities do not lead to affordable housing, due to market demand, will that mean the community was not reasonable?

Beyond the phraseology, the statute is much better than our own Chapter 40B. The third paragraph of the statute states:

III. A municipality’s existing housing stock shall be taken into consideration in determining its compliance with this section. If a municipality’s existing housing stock is sufficient to accommodate its fair share of the current and reasonably foreseeable regional need for such housing, the municipality shall be deemed to be in compliance with this subdivision and RSA 672:1, III-e.

Think about how many communities would meet the Chapter 40B standards if their existing housing stock were taken into consideration. There is really no reason why that should not be the case. Deed restrictions do not make a community affordable. A truly affordable community has housing readily available, regardless of the deed status, to working people.

The procedures that are laid out in the second RSA 674:60 are quite illuminating as well. It lays out a procedure for communities to follow in reviewing a project proposal. The local board reviews the proposal, establishes conditions for approval. After conditional approval, the applicant creates a pro-forma analysis of the financial implications of the conditions which the local board then reviews to determine whether any of the conditions should be reconsidered. The process, if it were to replace the current Chapter 40B process, would allow a project to be reviewed on its merits, determine what is really needed to off-set the impacts of the project. Only after the project has been reviewed on its merits, does the financial feasibility come into play. The financial discussion then takes place with its own independent set of give and take. The final decision is issued after the financial discussion is completed, unless the applicant feels that there is no need to debate the financial feasibility.

As the Lowell Sun article and this one fromthe Nashua Telegraph illustrates, communities are jumping on this legislation to adopt inclusionary zoning provisions, which appear to have been previously authorized (RSA 674:21), but without the stick that this statute reflects.

Having worked in both states, I continue to believe that the planning statutes in the "Live Free or Die" state continue to be better than those we find down here in the flatlands. RSA 674, even though it has been revised since I last worked in NH, is far more progressive than ours - the statute provides for a careful balance between community rights and land use rights. These housing requirements and allowances reinforce that communities must plan for their community needs, but leaves meeting those needs to local devices (albeit open to challenge in court) as opposed to having a statute, like Chapter 40B, which over-rides local concerns.

Personal Thoughts on the Land Use Partnership Act - Part 7 - Miscellaneous Zoning Comments

The proposal contains two section which are for more innocuous than the other zoning provisions previous discussed. These deal with amendments on housing size and form based code. These two changes are recommendations for changes to Section 3.

2) Ability to regulate maximum interior floor area

The beginning of the second paragraph of Section 3 of Chapter 40A is modified as follows:

No zoning ordinance or by-law shall regulate or restrict the minimum interior area of a single family residential building . . .

This change is supposed to provide communities the ability to regulate "mcmansions." While it will provide some of that protection, it has other shortcomings. If we are looking for housing diversity, communities need some level of ability to ensure that houses of various sizes are created. A healthy community will need studio, one, two and three bedroom units for instance. The proposal, as with the current statute, does not give communities any real ability to influence the choice of housing types being constructed. While I am not sure if there is a good solution, the proposal is not the answer. Perhaps simply removing the existing reference in Section 3 altogether and ensure that in the Comprehensive Plan Guidelines, there are provisions that require communities to ensure housing availability to all family sizes.

3) Form-based zoning

Add the following to the end of Section 3 of Chapter 40A:

The text and diagrams in a zoning ordinance or by-law that address the location and extent of land uses, may also express community intentions regarding urban form and design. These expressions may differentiate neighborhoods, districts, and corridors, provide for a mixture of land uses and housing types within each, and provide specific measures for regulating relationships between buildings, and between buildings and outdoor public areas, including streets.[1]

"Form-Based Code" is all the rage. It has become the second biggest buzz-word of the day behind "Smart Growth" and probably just ahead of "New Urbanism". Communities are currently adopting Form-Based Codes, there is no prohibition on such zoning. Calling out this specific type of zoning code is as unwarranted as specifying "Euclidean Zoning." Calling it out may even make some courts consider that Form Based Zoning is the only proper method of zoning, rendering old practices, and any new initiatives as illegal.

In addition, as an allowed tool, why would this be placed into Section 3 which has come to be known as the section which restricts what zoning can regulate.

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[1] Adapted from California enabling act for form-based zoning.

Personal Thoughts on the Land Use Partnership Act – Part 6 – Development Impact Fees

For the record, I have been involved in reviewing development impacts and the discussion of Development Impact Fees for nearly a quarter century. I have testified before both the Massachusetts and New Hampshire legislatures on this subject. I have also made a presentation before a Congressional Sub-Committee Hearing years ago held in New York on the issue of private sector involvement in infrastructure improvements.

Development Impact Fees are long over due. However, the proposal made in this section is as noteworthy in what it takes away from communities as to what it grants them. As an old fable once said, “beware the wolf in sheep’s clothing.” I think communities need to be aware that this proposal is “the wolf in sheep’s clothing.”

11) Development impact fees

The following new Section 9D is inserted into chapter 40A:[1]

40A:9D. Development Impact Fee

(a) Authority

(1) In addition to its home rule authority to impose a development impact fee, a city or town may adopt a local ordinance or by-law under this section that requires the payment of a development impact fee as a condition of any permit or approval otherwise required for any proposed development within the scope of this section, and having development impacts as defined in the ordinance or by-law. The development impact fee may be imposed only on construction, enlargement, expansion, substantial rehabilitation, or change of use of a development. The development impact fee shall be used solely for the purposes of defraying the costs of capital infrastructure facilities to be provided or paid for by the city or town and which are caused by and necessary to support or compensate for the proposed development. Such capital infrastructure facilities may include the costs related to the provision of equipment, facilities, or studies associated with the following: water supply; sewers; storm water management and treatment; pollution abatement; solid waste processing and disposal; traffic mitigation; roadways, transit, bicycle and pedestrian facilities, and other public transportation facilities; and affordable housing; costs related to facilities such as schools, public safety facilities, and municipal offices shall be excluded.

As I mentioned in an earlier post, if you can implement an action under home rule authority, and legislative action should be viewed as limiting a town’s home rule authority. The statements in this section related to home rule authority is the first red flag. However, the courts in the Franklin decision seem to have placed extreme limits on home rule authority when it comes to impact fees. It would seem appropriate, to start, to simply remove all reference to home rule authority. Otherwise, outside of the exclusion for schools, I really have no other concerns with the authorization section.

Too bad, the legislation did not simply stop with the authorization of these fees. There is plenty of legal analysis, including at the U.S. Supreme Court level to describe the limits on impact fees. The remainder of this section really is superfluous and should have been left out.

(2) Nothing in this section shall prohibit a city or town from imposing other fees or requirements for mitigation of development impacts which it may otherwise impose under state or local law and that are consistent with the constitution and laws of the Commonwealth; except that the imposition of a development impact fee as provided in this Section 9D shall be the exclusive means by which a municipality may require the payment or performance of off-site mitigation for development impacts of the proposed use of land or structures permitted or allowed as of right under its zoning ordinance.

Here is the “wolf”. This section, and several more detailed areas below, essentially prohibit communities from using any other mechanism to address the impacts of a project on a community. By limiting communities in this fashion, the proposal does not allow a community to require a turn lane to be added to an adjacent street to serve the access needs of the application. Such a turn lane would serve only the needs of the project in question, not the general public, except to mitigate a site specific congestion problem. Yet, this section will prohibit the town from making such an imposition. This is totally unacceptable. It essentially places every community on the same footing, regardless of their planning capabilities or the development pressures they may be experiencing. There will be situations where a project comes into a community creating an immediate infrastructure improvement need. The community may not have adequate development pressures to warrant an impact fee, as the fees collected over a five year time period may amount to no more than what the project proposed will contribute. However, the limitation on such off-site mitigation would leave a community with significant infrastructure problems. Clearly, this section should be deleted from consideration.

(b) Limitations

(1) No development impact fee under this section shall be imposed upon any dwelling unit, regardless of how created or permitted, which is subject to a restriction on sale price or rent under the provisions of G.L. c. 184 as amended ensuring that the unit will remain affordable for a period of at least 30 years to households at or below the area median income as most recently defined by the United States Department of Housing and Urban Development or successor agency, or any other dwelling unit permitted under G.L. c. 40B.

This section is good to an extent. To an extent, it goes too far as well. Deed restricted affordable housing units clearly need some relief from impact fees. However, as Chapter 40B projects include significant numbers of market rate housing units, the exemption of Chapter 40B projects from impact fees, and also due to the prohibition on off-site mitigation, any other consideration of reducing the impacts of a project on the community is a bit much. Chapter 40B projects come with significant financial rewards to development projects, density bonuses, financing from state agencies, low or no interest loans, etc. The communities are left footing the bill in terms of infrastructure improvements unless mitigation can be negotiated or imposed. Clearly the “financially unfeasible” determination included within Chapter 40B would seem to be already limiting on communities. To further restrict community review of Chapter 40B projects under Chapter 40A would seem inappropriate.

(2) The fee shall not be expended for personnel costs, normal operation and maintenance costs, or to remedy deficiencies in existing facilities, except where such deficiencies are exacerbated by the new development, in which case the fee may be assessed only in proportion to the deficiency so exacerbated.

This section simply restates what an impact fee is, versus what taxes are for. The courts have clearly weighed in on the use of impact fees. This section is consistent with the court determinations. Given, the proposal does not seek to authorize an area that has been restricted by the courts, the section would seem unnecessary.

(c) Requirements

(1) Prior to the imposition of development impact fees under this section, a city or town shall complete a study that: (i) analyzes existing capital improvement plans, or the facilities element of a plan adopted under section 81D of chapter 41, or the infrastructure improvements element of a community land use plan adopted under Section [4] of Chapter 41; (ii) estimates future development based on the then current zoning ordinance or by-law; (iii) assesses the impacts related to such development; (iv) determines the need for capital infrastructure facilities required to address the impacts of the estimated development including excess facility capacity, if any, currently planned to accommodate future development; (v) develops cost projections for the needed capital infrastructure facilities and documents costs of existing facilities with planned excess capacity; and (vi) establishes the amount of any development impact fee authorized under this section in accordance with a methodology determined pursuant to the study. The study shall be updated periodically to reflect actual development activity, actual costs of infrastructure improvements completed or underway, plan changes, or amendments to the zoning ordinance or by-law.

The requirements of this section may prohibit many communities from seeking to use them. When coupled with the outright prohibition on any other means of off-site mitigation, this act becomes a developers blessing to place all of its impacts on the back of taxpayers. In considering allowing for impact fees, the drafters of this legislation should consider that the end is to have a mechanism that can make the state more development friendly. This proposal could clearly have the opposite impact. Part of the issue is that the requirements in this section are unclear. Given the nature of the existing litigation on impact fees, and the available literature covering the subject, one has to ask, “is this looking for a local comprehensive plan to itemize every contemplated infrastructure improvement and to assign costs associated with these?” Or, “is a more generic analysis under consideration as in the reports I wrote while with the Metropolitan Area Planning Council?”

The first section is straight-forward enough. Any adequate plan should include a facilities element. The facilities element will obviously be improved by any existing capital improvement plans, especially any facility specific plans such as a corridor improvement plan for a particular roadway. Secondly, build-out analysis, again fairly straight-forward. The state even has some generic build-out figures on its website. However, the build-out analysis for a town-wide planning analysis will not be as accurate as that used in a specific corridor or neighborhood planning effort.

From here the level of technical expertise becomes a little more unclear. When you are on a town-wide plan, you have a general build-out, which creates some general ideas of your needs. Can impact fees, as contemplated be assessed on these generic studies and cost estimates?

Impact fee analyses have been based on general figures. You can see the reports and computer program I wrote when I worked with the Metropolitan Area Planning Council for examples of the typical Impact Fee Analysis. These more facility wide approaches are the same whether you are looking at the works of Jim Duncan or Arthur Nelson and James Nicholas. I hope that this is what this section is looking for, however, too much is left to interpretation and should be clarified. Otherwise the early impact fee communities will find themselves as the new legal case studies.

(2) A development impact fee shall have a rational nexus to, and shall be roughly proportionate to, the impacts created by the development as determined by the study described in (c)(1) above evaluating said impacts, and it shall be applied to affected development projects in a consistent manner.

Rational Nexus is what has been litigated. Rational nexus provides for opportunities to follow the works of Duncan or Nelson and Nicholas or my own report for MAPC. Is that what is intended, or is (c)(1) intended to require a higher level of effort?

(3) The purposes for which the fee is expended shall reasonably benefit the proposed development.

This pretty well is covered by existing case law.

(4) The fee may not be assessed more than once for the same impact, nor may the fee be assessed for impacts, or portions thereof, offset by other dedicated means, including state or federal grants or contributions or other mitigation commitments made by the applicant undertaking the development.

Straight-forward, except for the “other mitigation commitments made by the applicant.” Normally this is straight forward as well, but given this section prohibits such requirements, why would this be here? It should be here, and the prohibitions on off-site requirements removed from elsewhere in the proposed legislation.

(d) Administration

(1) The ordinance or by-law may provide for a waiver or reduction of the development impact fee for any development that furthers an overriding public purpose as set forth in a plan adopted by the city or town under section 81D of chapter 41.

(2) If the proposed development is located in more than one municipality, the impact fee shall be apportioned among the municipalities in accordance with the land area or other equitable measure of the impacts of the proposed development in each city or town.

(3) Any development impact fee assessed under this section shall be deposited to a separate, interest bearing account in the city or town in which the proposed development is located. Unless subject to section (d)(4) below, no development impact fee shall be paid to the general treasury or used as general revenues of the city or town subject to the provisions of section 53 of chapter 44 of the General Laws.

(4) Any funds not expended or encumbered by the end of the calendar quarter immediately following 5 years from the date the development impact fee was paid shall, upon request of the applicant or its assigns, be returned with interest provided that an application for a refund prescribed in the ordinance or by-law has been submitted within one 180 calendar days prior to the expiration of the 5 year period. If no application for refund is received by the city or town within said period, any funds not expended or encumbered by the end of the calendar quarter shall then revert to and become part of the general fund under section 53 of chapter 44. In the event of any disagreement relative to who shall receive the refund, the city or town may retain said development impact fee pending instructions given in writing by the parties involved or by a court of competent jurisdiction.

The administration is fairly straight-forward. The requirement that the fees be used within a particular time frame may be limited. For instance, a project that may require state or federal funding (Transportation Improvement Program listing for instance) could take longer than 5 years to progress to construction. Changes in the economic climate could also be quite limiting. No one foresaw the current economic downturn, even a few short months before it occurred. Given the length of economic cycles, the time period for the expenditure of impact fees should be longer. A ten year time frame would be more favorable to ensuring that infrastructure improvements actually occur. If the fees lapse in too short a time period, it simply means that a greater state, federal or community contribution will be necessary, or the town drops the impact fee program altogether and takes a more anti-development posture.

Conclusions About This Section

I am a big advocate for the use of impact fees. They provide a basis for shared costs for infrastructure improvement. They are clearly more fair than the current situation. Unfortunately, as proposed, they are too restrictive, and the proposal removes other development mitigation from the equation. This limitation on tools available will restrict some communities from implementing impact fees, and will promote an anti-development posture in many. This anti-development posture is clearly not the intent of this section. However, the restriction on immediate mitigation of certain impacts will have this result.

As I noted in one of my other comments, the loss of the ability to look at off-site mitigation, will lead to more projects on Cape Cod being referred as discretionary reviews to the Cape Cod Commission. As a planner, I have to look out for the best interests of the community I serve. If I cannot require a project to add sidewalks, a turn lane, or an island to block turns, then I will have to consider what agency continues to have that power. The reviews may be limited, they may have a pre-ordained outcome, but the end result will be a more expensive review process due to the restrictions on the local requirements imposed by this proposed statute.

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[1] Adapted from CPA2.