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Our members are the local governments of Massachusetts and their elected and appointed leadership.
Committee on Municipalities and Regional Government
State House, Boston
Dear Chairman Kane, Chairman Welch and Members of the Committee,
On behalf of the cities and towns of the Commonwealth, the Massachusetts Municipal Association would like to offer comment on the land use legislation before the Committee for public hearing today.
Land-use planning and the regulation of development are fundamental local-level decisions where citizens can plan for the future of their communities and adopt a framework of rules to guide development toward that end. These are the tools that cities and towns use to protect the public health and safety and encourage the economic growth that helps pay for local school and municipal spending through the property tax.
Over the past several years, the MMA has participated in a number of work groups on land-use reform, including most recently the Zoning Reform Working Group that has focused on the comprehensive land use bill reported favorably by this Committee last May. This bill is before you today as Senate 1019, filed by Senator James Eldridge. There are other comprehensive bills that have been filed, but our comments will focus on S. 1019 in this letter.
It is generally recognized that land use law in Massachusetts is increasingly obsolete and in need of reform and re-organization. Basic statutes related to planning, zoning and subdivision control are decades old and do not provide adequate tools to guide growth in a densely populated, economically active state with ambitious and complex development goals. New tools are needed to allow cities and towns to effectively plan and create land-use frameworks that facilitate and balance sometimes competing goals, such as housing production, including affordable housing, and open space retention and “smart growth.” As the 2007-2009 recession fades and a recovery takes hold, it would be enormously beneficial to have in place a modern system of planning and land-use regulation.
Principles of Review
The several comprehensive land use bills that have been filed over the past several sessions are complex and would make significant and long-lasting changes across a broad area of law and regulation. To help evaluate the different proposals, the MMA developed a set of review principles to ensure that core local government interests are considered.
1. Legislation should enhance and strengthen the ability of cities and towns to guide development toward the objectives of local land-use plans.
2. Legislation should support the presumption of validity of locally adopted bylaws and ordinances and avoid state preemption of local decisions.
3. Legislation should provide a permanent and reliable revenue stream for local land-use planning and zoning purposes and not impose any unfunded mandates on cities and towns.
Comments on S. 1019
S. 1019 would amend the Zoning Act (Chapter 40A) and the Master Plan and Subdivision Control statutes in Chapter 41 of the General Laws to update and modernize current land-use law. There are many provisions in S. 1019 that we strongly support, but there are also provisions that are contrary to the local government principles listed above and require us to oppose the bill as it is drafted. We hope to continue discussions with the Zoning Reform Working Group, members of this Committee, and other interested parties to find common ground on reforms and draft a bill that we can all support.
Below are some of the positive ideas included in S. 1019. The general descriptions are adapted from a summary prepared by the Zoning Reform Work Group:
• The Zoning Act would be reorganized and consolidated into a more user-friendly outline format with topic headings for most paragraphs.
• While it is implicit in current law, the bill would explicitly establish that municipalities have the capacity to control the use of land within their borders to the extent not preempted by state law, as provided by the Home Rule Amendment to the Constitution of the Commonwealth.
• While some cities and towns have been able to adopt new practices, the bill would explicitly confirm the statutory authority of cities and towns relative to the use of impact fees, inclusionary zoning, unified development ordinances, form-based zoning, transfers of development rights, and cluster development.
• The bill would modify excessive “grandfathering” provisions so that amendments to zoning ordinances and bylaws may proceed without circumvention by landowners.
• The bill would increase local control by allowing communities the option to reduce the vote majority for adoption of zoning bylaws and ordinances from two-thirds down to a simple majority.
• The bill would increase local control by allowing cities and towns to reduce the vote majority to approve special permit to simple majority, and it would provide a clear lapse/extension process.
• The bill would increase local control by providing explicit statutory authority for inclusionary zoning to require the creation of affordable housing in development projects.
• The bill would provide explicit statutory authority to require payment of impact fees associated with development projects.
• The bill would provide a means to avoid costly land-use dispute litigation using an “off-line” avenue for an applicant and town to resolve difficulties in prospective development projects so the approval process is successful.
• The bill would increase fines that cities and towns may assess from $300 to $1,000 per offense and would prevent old zoning violations from becoming lawfully nonconforming structures or uses unless a community so desires.
• The bill would create a presumption that a local board’s Site Plan decision was correct in the event of any appeal, whether from an abutter or an appeal of a denial by an applicant, and would provide an “off-line” mediation process for all appeals.
• The bill would provide enhanced guidance to communities in the development of their master plans, including allowing a city or town without a master plan to instead opt to adopt an existing regional plan (thus saving on the costs of plan-making).
• The bill would increase local control by providing an option to adopt regulations for “minor subdivisions” in place of current Approval Not Required (ANR) provisions. Many suburban and rural towns must bear the costs of unlimited ANR development along substandard public ways.
• The bill would increase local control by requiring that changes to the number, shape, and size of lots shown on approved subdivision plans go through the formal Chapter 41, Section 81W process unless such changes are locally defined as minor subdivisions.
• The bill would establish that the date of the next planning board meeting is the date of submittal of subdivision plans so that a planning board has the full statutory period to review.
• The bill would establish that subdivision rules and regulations may require the set-aside of up to 5 percent of a subdivision as a park or playground for the new neighborhood.
• The bill would introduce a presumption that the local board’s decision on a subdivision plan was correct in the event of any appeal and judicial review, whether from an abutter or appeal of a denial by an applicant.
Notwithstanding our support for many of these updates and enhancements to current law included in S. 1019, there are a number of policy issues where we still differ greatly from the position in the bill that, at present, lead us to oppose it. Some of the disagreements are major, others are relatively minor, and in some cases they are related to land-use issues not addressed in the bill. Given all the time and effort over many years given to this reform effort, we would like to give our best effort to resolve these differences.
We are preparing a comprehensive analysis of S. 1019 that we will share with the Committee when it is complete. Below is a discussion of one of the major policy disagreements that we are working to resolve.
S. 1019 would require that cities and towns prepare local plans and that zoning be consistent with the plan. The new Chapter 40A would provide that after January 1, 2017, no zoning ordinance or bylaw may be inconsistent with a local master plan. This would significantly weaken the presumption of validity of local land-use regulations. It would provide a statutory pathway and encouragement for developers to argue that a bylaw or ordinance impedes a plan’s goals and proposed uses. While this section would provide that local zoning bylaws and ordinances enjoy a “rebuttable presumption” of validity, it would enable a court or administrative agency to declare a zoning bylaw or ordinance “invalid.”
Our objection to this provision is two-fold. First, the master plan requirement with judicial jeopardy attached to it would impose an unfunded mandate. Good planning is expensive whether done by municipal staff or by consultants. While S. 1019 includes a state bond authorization of $11 million, this is one-time funding and there is no assurance that it would actually be included in the Governor’s already tight capital plan and made available to cities and towns. Funding of master plans needs to be an ongoing commitment on the part of the state.
Second, and most critically, S. 1019 includes an explicit statutory threat to local zoning rules that would invite developers and others to challenge bylaws and ordinances. This structure makes developers, through the courts, the enforcers of plan-to-bylaw consistency. We cannot support this structure.
One example of a smaller issue is the first item in the Purposes of Zoning Ordinances and Bylaws in Section 1 of S. 1019, which uses the term “implementation.” This suggests that cities and towns are developers and builders and can be held responsible for the timing, financing and completion of actual development projects. A possible alternative term, “establishment,” would reflect the reality that cities and towns create a regulatory framework through which developers and builders make decisions and take action based on economic conditions. The bill also would make significant changes to how zoning variances are granted, with possible adverse effects on cities and towns and on homeowners and landowners.
In addition to the provisions included in the bill there are a number of issues that should be considered as part of a fully comprehensive reform bill, including a review of the extent of the exemption for religious and educational purposes, the “Dover Amendment,” and reforms to Chapter 40B consistent with the recommendations of the Inspector General and the ability of cities and towns to plan for local affordable housing development.
Thank you for your interest in this significant local government matter. If you have any questions, please do not hesitate to contact MMA Deputy Legislative Director John Robertson at (617) 426-7272. We look forward to working with you on this important issue.
Sincerely,
Geoffrey C. Beckwith
Executive Director, MMA