Who is a member?
Our members are the local governments of Massachusetts and their elected and appointed leadership.
The Honorable James Eldridge, Senate Chair
The Honorable Paul Donato, House Chair
Joint Committee on Municipalities and Regional Government
State House, Boston
Re: Zoning Reform Legislation
Dear Chairmen Eldridge and Donato,
On behalf of the cities and towns of the Commonwealth, the Massachusetts Municipal Association wishes to offer general comments with respect to zoning reform legislation before your committee, specifically recommendations offered by the Patrick Administration (H. 3572/S. 765) and comprehensive zoning reform (S. 783), or CPA II, offered by the Zoning Reform Working Group.
Several years ago, the MMA Board endorsed the then Land Use Reform Act and further amendments that enhance local control. That proposed legislation provided for positive changes to much of Chapter 40A, as well as complementary subdivision controls to be offset by the duty to make local zoning thereafter, within five years, not inconsistent with a master land-use plan to be adopted by the local legislative body. Over the years this legislation was modified by what became known as the Zoning Reform Working Group to become the Community Planning Act, and a recent version of CPA II was included in the MMA’s 2007-08 legislative package.
Community Planning Act (CPA II)
Notable obstacles that 40A places in the way of municipal land use authority are that it (a) includes loopholes that undermine local planning – notably Approval Not Required (ANR) subdivisions and excessive grandfathering provisions, (b) limits local authority to change existing zoning, and (c) exempts certain land uses from local zoning, such as use of land for religious and educational purposes.
For several years, the MMA and many other stakeholders have been working together as part of the Zoning Reform Working Group to develop CPA II. This legislation would improve the local planning process, close loopholes that undermine planning, increase flexibility in zoning and planning, and provide communities with effective planning tools such as inclusionary zoning.
CPA II provides the opportunity to remove many state-imposed obstacles to effective local planning and land use regulation, and provides cities and towns with new tools to develop and create housing. For example, CPA II:
• Brings “grandfathering” provisions in line with the rest of the country;
• Removes ANR provisions where the municipality has no control;
• Authorizes cities and towns to levy impact fees on growth;
• Creates a mediation process to reduce court challenges to local zoning decisions; and
• Expressly allows cities and towns to use inclusionary zoning.
While the MMA had previously endorsed CPA II as part of its legislative package last session, the MMA decided against doing so this session because of some new components of the legislation, notably changes made to those provisions that would impose additional requirements to local master plans.
Land Use Partnership Act (LUPA)
For the past 18 months, the MMA has been participating on a group that has been convened and chaired by the Patrick Administration in order to develop comprehensive zoning reform legislation. During those meetings, the MMA has stressed that CPA II must serve, at the very least, as the foundation upon which further reforms can be built. If more is to be done, it should be in the form of further incentives, such as funding technical assistance for plan development and drafting zoning ordinances to make the plan effective, or allowing large-lot zoning where it is needed for resource or rural protection, as well as denser zoning where certain redevelopment makes sense.
The LUPA model as currently proposed would provide, like Chapter 40R, that communities could “opt in” if they were interested in achieving some relief from limitations of existing state law, in return for taking on the burden of planning in advance of their zoning and making their zoning consistent, and having both planning and zoning reviewed by Regional Planning Agencies under state oversight. While the MMA has reservations about RPA oversight and approval of said plans, this model is preferable to imposing substantially more planning and zoning burdens on municipalities statewide, since it allows municipalities to choose to participate. On the other hand, the legislation may miss an opportunity to assist all municipalities, and not just those that opt in, and also imposes new requirements on all municipalities which are not, as in the case of CPA II, generally offset by increased opportunities for shaping their land-use futures. The general perspective we have offered on behalf of the MMA has been to avoid burdensome statewide changes for non-participating communities, and to make the opt-in choice more desirable for those that do. For example, it is helpful to provide express authority for impact fees and inclusionary zoning statewide, but unwise to impose detailed statewide limits on road design incident to subdivision approval.
The Zoning Reform Working Group has submitted formal comments to Secretary Bialecki, most of which we agree with (for sake of simplicity, we will not duplicate that thoughtful analysis here), and we especially support the concern expressed about the effect on local land-use decision-making other than zoning and subdivision control. Those areas where we differ with the Zoning Reform Working Group comments are not great, but are still important. For example, the MMA, as noted above, supports retaining the rezoning supermajority as the default. (CPA II had a compromise that retained the supermajority as the default, but allowed local option to change it to a majority. Current law requires a supermajority, which makes sense because of the relative permanence of land-use decisions.) The MMA also supports having the chief executive of the municipality act on its behalf (since someone has to), and prefers local planning to be “not inconsistent,” rather than consistent with the local plan. We are also cautious about endorsing changes in the statutes on special permits or variances without offsetting protections for affected neighboring properties, including sufficient resources for local planning advice to aid in making such proposals fit well into their surroundings.
In addition, we have several other concerns with LUPA that need elaboration:
A. The need for adequate planning assistance for opt-in communities, but not at the expense of those that do not opt in. The basic model for an opt-in community is that it must meet certain state requirements, including preparing a land-use plan certified by its Regional Planning Agency as meeting certain criteria, and also make its zoning consistent, rather than “not inconsistent” as CPA II provided. This planning and rezoning requirement is one which will be a challenge for communities who cannot afford planners (much less teachers or police), though there is a hope that the Regional Planning Agencies can help provide technical assistance. The administration promises funding to opt-in communities, but we are all aware of the state’s own fiscal crisis. The bill raises the possibility – and indeed it is apparently the administration’s intent – that state grants with land-use impacts, and other local aid of similar kind, will be targeted to those communities that want to opt in, and possibly therefore deprive those who do not, like an enhanced Commonwealth Capital scorecard. The MMA has concerns about skewing local aid opportunities in this way. While providing planning assistance is important, it is also important not to deprive other communities that also need planning help.
B. Performance standards for opt-in communities need flexibility. In addition to other requirements, communities that opt in will have to meet a housing production target. If there is not a legitimate waiver provision for these and various other requirements, municipalities that do not fit all the targets or plan requirements may not opt in.
C. Even if a good local plan is adopted, communities need the authority to make it fully effective. Also, while there are some zoning benefits to offset the burdens for opt-in communities, they are not of much benefit to many already built-out communities, as would greater control over projects or those uses already subject to state zoning exemptions that are often redevelopment or expansions of existing uses. It seems challenging to ask municipalities to plan in accordance with statewide goals under Regional Planning Agency supervision and yet make it impossible for those plans to be fully effective when other statewide land use exemptions or other limits on local authority are retained.
Thank you for the opportunity to provide these general comments. The time for true reform to our state’s archaic and unworkable zoning statutes is now at hand, and the MMA stands ready and willing to work with you and your committee to achieve that objective.
Sincerely,
Geoffrey C. Beckwith
MMA Executive Director