Who is a member?
Our members are the local governments of Massachusetts and their elected and appointed leadership.
The Honorable Brian S. Dempsey, Chair
The Honorable Stephen Kulik, Vice Chair
House Committee on Ways and Means
State House, Boston
Dear Chairman Dempsey, Vice Chairman Kulik, and Distinguished Committee Members,
On behalf of the cities and towns of the Commonwealth, the Massachusetts Municipal Association appreciates the opportunity to offer comments on H. 4065, An Act Promoting the Planning and Development of Sustainable Communities. The MMA’s Municipal and Regional Policy Committee has completed a careful and extensive evaluation of the current bill as written, with a focus on the impacts that the proposed changes to zoning and land use law would have, if implemented, on our cities and towns. Any changes to existing zoning and land use law in Massachusetts would have profound and long-lasting effects on our communities and residents and their quality of life for generations to come. For this reason, any and all proposed changes demand very careful consideration.
The comments and suggested language changes presented below by topic would strengthen and improve the bill by collectively preserving local authority and recognizing the unique character of each city and town. The MMA would have very serious reservations regarding H. 4065 if these comments and recommended improvements are not incorporated into the bill.
Vested Rights
Section 8
The MMA supports the conceptual changes made in the sections of the bill pertaining to vested rights, which in part indicate that if a completed application for a permit is filed prior to the first notice of a public hearing on a zoning amendment, then current local zoning law would apply to the subject of the application. It is important that the language of the bill clearly state that the permit application must be fully complete and ready for review, rather than merely a placeholder, and received by the appropriate permitting authority with payment for any corresponding application fees. Otherwise, landowners would be able to simply apply for a permit but proceed no further, freezing the zoning applicable to their parcels without bearing the cost of the permit or a completed application. The MMA suggests a language review to ensure that the changes reflect true improvement over established precedent.
Nonconforming Structures
Section 9
The MMA opposes language that would remove existing municipal authority to regulate abandoned nonconforming uses and structures on lots zoned as single or two-family residential. The retention of existing local regulatory authority around these lots is essential to prevent blight and promote neighborhood stability, and the next version of the legislation should strike any language that would remove this authority.
Site Plan Review
Section 21
The bill as written would provide for 95 days to complete a site plan review process, and the MMA requests that this language be clarified to indicate that the 95-day period would begin at the close of a public hearing, if any is required. This would better provide sufficient time for local review, particularly since the law prohibits extensions. If the site plan review process is integrated into other required approvals, such as a special permit or variance, the timelines for those approvals would control the timeline of the site plan review process.
Development Impact Fees
Section 22
The MMA supports the statutory authorization of development impact fees, and requests language changes as outlined to strengthen the statute. As currently written, the bill would not allow impact fees to be used for open space, and the MMA requests that open space be returned to the list of allowable uses for the fees. Additionally, the development impact fee would be due and payable to the municipality upon commencement of construction, rather than when a building permit is issued. The language of this section should be amended to allow a municipality to require the developer to pay the fee in advance of the commencement of construction if the fee is needed for infrastructure upgrades related to the development. This revision would enable a municipality to make requisite public expenditures to match the impact caused by the development in a timely manner.
Inclusionary Zoning
Section 23
The MMA supports the conceptual objective of this section pertaining to inclusionary zoning, but requests language changes to strengthen the bill. As currently written, any municipalities that have previously adopted inclusionary zoning would be required to conform to the state statute within two years. This section should include technical assistance to municipalities to assess their current ordinances or bylaws and ensure appropriate action to meet the required conformity. Additionally, the timeframe should be extended to three years to allow municipalities of all sizes appropriate time to makes any requisite changes.
The section contains language that would require a “rational nexus” between the requirement of inclusionary zoning and the impacts caused by a development. This language is inconsistent with the rest of the statute and should be deleted to avoid impeding the goal of inclusionary zoning, which is to promote affordable housing. Otherwise, this section would create a nonsensical standard whereby a “rational nexus” must be established between a housing development and the need for units of affordable housing, which would have a chilling effect on the success of inclusionary zoning and limit rather than expand affordable housing opportunities in cities and towns.
Variances
Section 25
The MMA supports a redraft of this section pertaining to variances, to ensure that the standard for granting a variance is not lowered to make it the avenue of choice for those seeking zoning relief. Under new language, variances must be sparingly granted. Retaining the character of a neighborhood must be of paramount importance. The MMA supports clarifying the language of this section to specify the physical characteristics that demonstrate hardship required for a variance, such as relating to soil conditions, shape, or topography especially affecting the property. While current law around variances references hardship derived from the land, the language in this section now includes structures, which are man-made. The inclusion of this particular type of hardship would open the door to claims that a structural feature, such as the lack of an attached garage, would warrant a variance in a side yard requirement because it relates to the physical characteristics of the existing structure. The inclusion of the current language would allow variances to become the discretionary avenue of choice for property owners who would otherwise live within the same limits as neighboring properties, and this section should therefore be revised to avoid that risk.
Further, the language of this section as drafted would require a finding that a proposed variance not have a disproportionate effect on nearby properties, without clarifying what disproportionate relates to. Instead, the language should be changed to require that the granting of a variance would not have an adverse effect, therefore avoiding the conveyance of a special benefit to one landowner at the expense of others.
Consolidated Permitting
Section 27
The MMA supports authorizing language for consolidated permitting, but the section must not be a mandate and should instead be a local option. As written, all boards and commissions relevant to a consolidated permit application would be required to participate in a single hearing, through a designated hearing officer representing each board or commission or with a quorum of each board or commission if no hearing officer is designated. If a hearing officer or quorum of a board or commission does not participate in the consolidated hearing, the permit or permission sought from that board or commission would be deemed constructively approved, meaning granted without the decision of the board or commission. This language around constructive approvals could have devastating impacts upon local land use and must be deleted from the bill.
While some municipalities may have the resources to participate in the consolidated permitting process outlined in the bill, others without professional staff dedicated to support the process may struggle with the burden. This difference in capacities and board and commission structures underlies the true need for the consolidated permitting process to be local option rather than mandatory, without punitive measures for nonparticipation that could change the nature of a community for years to come.
Further, the threshold for an “eligible project” must be appropriate for all municipalities, so that municipalities that routinely experience large-scale developments do not see the consolidated permitting process triggered excessively, and the MMA supports a new definition for this reason.
Applications should be required to be fully complete in advance of the start of the time period during which the consolidated permitting process must be completed. Further, a 65-day time period as written is too short to accommodate the realities of the coordination required among multiple boards in many cases, and the timeframe should therefore be changed to 95 days (a timeframe that is shorter than the combined timeframes it would take to apply for each permit serially). The MMA does not support this section as written.
Master Plans
Section 29
This section would restructure local master plans, and should be reviewed to ensure that the newly required components of a plan are realistic for a municipality to complete and do not impose an undue burden. The language of this section should be amended to indicate that any master plan in effect at the passage of this act will remain in effect and not be subject to this Act for up to 15 years, rather than 10 years as currently drafted. Adoption, extension or revision of the master plan should be by a two-thirds vote of the legislative body of the municipality. However, a municipality should have the option to change that threshold to a range anywhere between simple majority and a two-thirds majority, by a two-thirds vote majority then in effect, with any change taking effect six months after the vote is taken. A planning board should not have effective veto power over the local legislative body that must enact the zoning ordinances and bylaws that a master plan shapes.
Approval Not Required (ANR)
Section 33
The language of this section, as written, includes a deeply troubling presumption that requirements for travel lane widths in excess of 22 feet in a residential minor subdivision serve no valid purpose. The MMA opposes this restriction. The language should be removed from the bill, allowing municipalities to continue to set travel lane width standards consistent with contextual design and local needs. These needs may vary from municipality to municipality and cannot be met by a width specified in state statute. This is a classic “one-size-misfits-all” provision that would cause countless problems throughout Massachusetts.
Subdivision Roadway Standards
Section 34
This section, pertaining to subdivision roadway standards, includes language establishing a presumption that design and dimensional requirements for total travel lane widths no greater than 24 feet shall be presumed to be not excessive. This is also troublesome language and should be removed from the bill. As previously noted, municipalities must be able to set travel lane width standards based upon local needs, and this language implies that widths greater than 24 feet could be considered excessive.
Appeals
Sections 41 through 43
These sections, which pertain to appeals of an approved subdivision plan, jurisdiction over appeals relating to the development of real property, and the transference of qualified cases to the permit session of the land court, must be clarified. The language as written is unclear and it is impossible to determine the practical impacts on municipalities. These provisions should be excluded from the bill and considered independently after the enactment of this legislation, so that the impacts would be known. Including these sections now could create highly problematic and difficult legal and development issues, and undermine the legislation.
Transition Provisions
Various sections
Throughout the bill, transition language allocates two years for a municipality to bring its local zoning and planning ordinances or bylaws into compliance. Even for municipalities with significant resources, two years is simply an inadequate duration of time for the assessment, preparation and implementation of an intensive process through local legislative bodies that includes technical review, public education, and legal work, all of which would create an unfunded local burden. The two-year duration referenced in each transition provision should be increased to a minimum of three years to improve local capacity for compliance with the law.
Technical Assistance Funding
Various sections
The provisions of this legislation, many of which represent significant and complex policy changes, will not succeed without technical assistance funding to municipalities as well as to Regional Planning Agencies charged with assisting in the implementation of this Act. It is essential that adequate technical assistance funding be added to the bill to ensure that its far-reaching policy changes are appropriately enacted at the local level without imposing unworkable unfunded mandates upon municipalities that may lack capacity or resources.
Summary
This bill is far-reaching and complex, and proposes enormous changes that would have dramatic and widespread impacts on municipalities, local residents and businesses for generations to come. We strongly urge you to adopt the language changes identified above (and in the accompanying document) in order to preserve the fundamental local control of land use that must remain in place, and to ensure that this legislation is balanced enough to protect the character and quality of neighborhoods and communities throughout the state. Local officials and the citizens of Massachusetts certainly expect all legislation to honor these important principles. We look forward to continuing to work with you on this important process.
For clarity, we have enclosed a mark-up of the legislation that highlights the Massachusetts Municipal Association’s recommended amendments and language changes in the relevant sections of the bill. As stated above, we believe these changes are necessary to ensure that the legislation protects the interests of the citizens, businesses and communities of Massachusetts. Without these changes, the MMA will have very serious reservations and would not be in a position to support the measure.
Thank you very much for devoting your time and energy to this important issue, and we look forward to working closely with you and your colleagues in the Legislature. If you have any questions, please do not hesitate to have your staff contact me or Catherine Rollins of the MMA staff at (617) 426-7272 at any time.
Again, thank you.
Sincerely,
Geoffrey C. Beckwith
Executive Director, MMA