MMA testimony to Committee on Municipalities on zoning reform legislation

The Honorable Sarah K. Peake, House Chair
The Honorable Linda Dorcena Forry, Senate Chair
Joint Committee on Municipalities and Regional Government
State House, Boston
 
Dear Representative Peake, Senator Forry, and Distinguished Committee Members,
 
On behalf of the cities and towns of the Commonwealth, the Massachusetts Municipal Association appreciates the opportunity to offer comment on H. 1859, 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 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 will 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, grandfathering existing local practices, and, in the case of local options, employing an opt-in rather than an opt-out model. The MMA would have very serious reservations regarding H. 1859 if these comments and recommended improvements are not incorporated into the bill.
 
Definitions and Statutory Authority
Sections 1 and 2
The definition of “permit granting authority” in Section 1 should be amended to include city council, and should be moved to Section 2 of the bill for consistency.
 
Zoning Vote
Sections 4 and 5
The MMA opposes these sections pertaining to changing the zoning vote threshold, as written, but would support language changes to allow a municipality to opt-in to a standard between a simple majority and a supermajority for zoning amendments consistent with a master plan approved by a local legislative body, or accompanied by a complementary revision of the master plan. Other zoning amendments not related to the master plan would still require the supermajority for adoption. A supermajority standard for other amendments ensures that proposed zoning changes must be crafted in a way that will garner a high standard of community support, indicating that the change is widely considered appropriate to gain approval. To avoid confusion and potential litigation over which voting majority applies, the bill should be amended to indicate that if a vote threshold lower than two-thirds is to apply, the local planning board would need to vote by a supermajority to certify that the proposed change is not inconsistent with a duly adopted local master plan. If no such plan had been adopted, then the existing legislative supermajority would continue to apply. Additionally, the existing law has a landowner protest trigger for an even greater supermajority that needs recognition.
 
Vested Rights
Sections 6 through 12
The MMA supports the conceptual changes made in the sections pertaining to vested rights. The language should be clarified to indicate that the first notice of public hearing is the time to which a property may be subject to subsequently enacted zoning amendments. The MMA suggests a language review to ensure that the changes reflect true improvement over established precedent.
 
Special Permit Vote and Length
Sections 16 and 17
The MMA supports a language change in Section 16, pertaining to the majority vote required for issuance of a special permit, to make changing the supermajority vote required for a special permit into a local option. As written, a municipality's special permit granting authority would require only a simple majority vote to issue a special permit unless a greater threshold is specified in a local ordinance or by-law. The MMA does not support an automatic change in the threshold that would apply to municipalities without a supermajority specified in a local ordinance or by-law. The MMA supports changing the language in Section 17, regarding the term of special permits, to allow a special permit to be issued for a term of up to 3 years, from a minimum of 3 years as currently written in the bill. Additionally, any extension of the permit should require notice and a public hearing. If the permit granting authority does not grant an extension within 65 days, the new permit should require a new application, notice, and public hearing. The MMA does not support the language of this section as written, because the language would establish three-year special permit terms that could be renewed without a public hearing for an additional three years. The establishment of what is effectively a six-year special permit term decreases transparency and local control, and is not in the public interest.
 
Site Plan Review
Section 20
The MMA supports this section, regarding site plan review, if modifications are made to avoid onerous evidentiary requirements and time delimited approvals, which are problematic in that a time period of 95 days from the submission of an application may be too short for an adequate review process. The language of this section must be clarified to indicate that an application will not be approved if requirements are not met. Mitigation for directly attributable adverse impacts of a project should extend to nearby properties, and not only those that are adjacent to the development.
 
Development Impact Fees
Section 21
The MMA supports the statutory authorization of development impact fees, with language changes to this section as currently drafted. The language should clearly authorize studies relative to mitigation impacts to be conducted on a project-by-project basis, by consultants as needed and financed by the project applicant under Section 53G of Chapter 44. The language proposed in the bill appears to allow a project-responsive fee, but the language should be carefully reviewed to ensure it does so.
 
Inclusionary Zoning
Section 22
The MMA supports the conceptual objective of this section pertaining to inclusionary zoning, if the language is authorizing in nature and not preemptive of any existing local ordinances to the same effect. It is critically important that saving language for local ordinances or bylaws around inclusionary zoning be included in the bill.
 
Land Use Dispute Avoidance
Section 23
The MMA supports this section on Land Use Dispute Avoidance as a means to resolve differences prior to formal permit approvals or denials, with suggested minor language changes to ensure consistency with open meeting law and other factors as recommended by the Massachusetts Office of Dispute Resolution.
 
Variances
Section 24
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 changing the language of this section to state that the granting of a variance must avoid detriment to the health, safety, and welfare of a neighborhood, rather than merely weighing the benefits to the grantee against the detriment to a neighborhood or community, as written. Additionally, the criteria for the granting of a variance should explicitly state that the claimed hardship relating to the property in question must be unique, such as circumstances relating to soil conditions, shape or topography especially affecting the property. The MMA does not support this section as currently written.
 
Notices to Boards of Health
Section 25
The MMA supports this section, regarding notices to Boards of Health, as written. This section would ensure that Boards of Health are notified of zoning hearings.
 
Consolidated Permitting
Section 26
The MMA supports authorizing language for consolidated permitting, but the section must not be a mandate and should instead be a local option. The threshold for an “eligible project” must be appropriate for all municipalities, and the MMA supports a new definition. Applications should be required to be fully complete in advance of the start of the time period during which the consolidated permitting process may be completed. Further, a 45-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 90 days (a timeframe that is shorter than the combined timeframes it would take to apply for each permit serially).
 
Planning Ahead for Growth
Section 27
The Planning Ahead for Growth section is a local option, but its objectives would be more broadly advanced by opening up some or all of the planning tools presented as incentives to those municipalities that adopt this section, to all municipalities statewide. Otherwise, municipalities without the capacity to meet the requirements enumerated in this section would fall behind their neighbors in the areas of planning and economic development. The language should include a provision to fund local planning to promote the success of the objectives of this section.
 
Master Plans
Section 28
This section restructures 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 Section 28 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. Adoption of the master plan, or extension or revision, 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 6 months after the vote is taken.
 
Approval Not Required (ANR)
Section 32
The language of this section, as written, includes a 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. That language should be removed from the bill, so that municipalities to can 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.
 
Subdivision Roadway Standards
Section 33
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. The MMA supports striking this language because 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.
 
Parks and Playgrounds
Section 36
The MMA supports this section, regarding parks and playgrounds in subdivisions, as written. This section would allow municipalities to require the designation of up to 5 percent of the land in new subdivisions for park or playground use.
 
Appeals
Sections 40 through 42
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, should be clarified. It is unclear from the language as written what the practical impacts on municipalities would be.
 
Master Planning Incentive
Section 43
The MMA supports a language change in this section pertaining to a master planning incentive. Rather than using a standard of consistency, as the bill is currently written, a court should instead employ a standard that determines if a provision of a challenged zoning ordinance or by-law is not inconsistent with a master plan adopted pursuant to state statute or local charter, by-law or ordinance. If the court determines that a challenged provision is not inconsistent with the municipality's master plan, than the provision shall be deemed to serve a public purpose.
 
Once again, thank you for your consideration of our comments and recommendations. Attached you will find a concise summary of these comments, as well as recommended language amendments superimposed into relevant sections of the bill.
 
This bill is far-reaching and complex, and proposes enormous changes that would have dramatic and widespread impacts on municipalities and local residents and businesses for generations to come. We strongly urge you to adopt the language changes identified above (and in the accompanying documents) in order to preserve the local control of land use that must remain in place, and 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.
 
Thank you very much for devoting your time and energy to these vitally important policy matters. If you have any questions, please do not hesitate to have your staff contact Catherine Rollins of the MMA staff at 617-426-7272 at any time.
 
Again, thank you.
 
Sincerely,
Geoffrey C. Beckwith
Executive Director, MMA

• MMA’s proposed language changes/amendments to H. 1859 (276K PDF)
• MMA’s recommendations and comments, by topic, to H. 1859 (68K PDF)