Legislature should protect local decision-making over zoning, land use

From the Beacon, November 2017
 
The MMA has completed an extensive evaluation of a sweeping housing and zoning bill that has been re-filed for consideration during the current legislative session, and we recently testified before the Legislature to outline our reservations regarding many of its key provisions.
 
Changes to our zoning and land use laws will have profound and long-lasting impacts on our communities and residents, and will affect the quality of life in cities and towns for generations to come. For this reason, proposed amendments to zoning and land use statutes require careful consideration, and we respectfully suggest that legislators should consult closely with municipal officials in their districts to understand the full impact on communities and neighborhoods.
 
While various proposals to better connect planning and zoning practices have been in circulation and discussion for many years, the pending legislation (S. 81) is a sweeping departure from earlier versions of zoning reform.
 
Prior to 2016, the bills that were filed reflected a balanced approach, and incorporated many hours of study and negotiation between all affected parties. In 2016, however, a new bill surfaced in the Senate that had a greatly expanded scope and reach. That measure, which narrowly passed the Senate in an unusually close vote, would have overridden basic zoning and permitting authority at the local level. Fortunately, the House chose to wait and receive further input, and the bill did not pass. However, it has been refiled for this session as S. 81.
 
We believe that any reform to state zoning laws must contain strong protection of local decision-making authority, and we strongly oppose “by-right” language that would override zoning bylaws that have been established by citizens and their elected and appointed leaders. S. 81 would provide for-profit developers with unprecedented power to override existing bylaws and ordinances, and also empower state agencies to effectively rewrite zoning codes for thousands of neighborhoods across Massachusetts.
 
The MMA’s concerns are outlined below. These sections, many of which would erode local control and provide windfalls for developers, would place a heavy burden on already understaffed and overworked municipal governments while doing little to actually encourage affordable housing.
 
Mandated “by-right” multi-family housing districts
S. 81 would mandate every city and town to establish “by-right” zoning districts for multi-family housing, removing any special permit or local approval process except for normal site plan review, with no provisions that these housing units meet the affordability needs of the community, and prohibiting communities from setting density provisions at fewer than eight units per acre in rural communities and 15 units per acre in all other communities. The MMA is greatly concerned that this proposal would increase the cost of housing in cities and towns and make it harder to meet affordable housing targets because developers would almost always pursue luxury and high-end developments that yield the highest profits.
 
Mandated “by-right” accessory apartments
S. 81 would mandate every city and town to approve accessory apartments in all residential districts, granting homeowners “by-right” ability to add additions, separate buildings or property renovations as long as the accessory apartment is no larger than half of the entire structure or 900 square feet and meets building code standards. Although cities and towns could cap accessory apartments to no more than 5 percent of the total non-seasonal housing units in the community, this would be difficult to monitor. These zoning changes would certainly lead to unanticipated neighborhood impacts due to reduced homeowner input or municipal oversight.
 
A 2004 analysis done by the Pioneer Institute on accessory apartment zoning in eastern Massachusetts showed that of the roughly 186 cities and towns surveyed, a great majority (104) allow accessory apartments, including in the suburbs, while 82 did not have explicit authorizations. Most of these allow accessory apartments through special permits (71 of the 104). And most of the bylaws and ordinances have specific criteria for granting permits that varied substantially. Overriding these existing bylaws would present enormous difficulties for communities that have already acted to address this issue.
 
Mandated “open space residential developments”
Every city and town would be required to approve “by-right” residential development projects with greater density if the projects are designed to preserve open space in or adjacent to the development. These are “compact” or “cluster” developments that are designed to allow for a portion of the land to remain undeveloped, yet they would increase density in some areas.
 
“Discriminatory land-use practices” section
We are particularly concerned with Section 34A, on discriminatory land use practice. This vague section raises the prospect of excessive litigation, at great expense to municipal governments and local taxpayers, regarding almost any local zoning decision. We fear that this provision would open a floodgate of litigation against municipalities and be abused as a tactic to challenge even routine zoning and other actions.
 
This new provision is exceedingly broad: it would make unlawful not only intentional discrimination (which is already unlawful), but any action that had an adverse incidental effect on the availability of affordable housing. This section has the potential to threaten local taxpayers and communities with high legal costs, as virtually any party could initiate litigation if they disagree with decisions made or not made, and actions that are taken or not taken.
 
This provision is also unnecessary. There are clear legal remedies for intentional discrimination under federal law. U.S. Civil Rights and Fair Housing laws already regulate intentionally discriminatory municipal action. The provision in S. 81 would go far beyond the current legal framework, giving courts unprecedented authority to rule on even unintended outcomes of a wide range of public policies. These could include open space protections, environmental protections, transportation system build-out decisions, and much more.
 
Finally, the provision would eliminate the usual deference afforded municipal decision-making under home-rule powers. Without this home-rule deference, municipalities would be forced to meet a much more stringent standard to support local decisions and rulings, resulting in far greater costs to municipalities seeking to defend themselves, as well as overburdening the judicial system and reducing the resources available to hear unrelated cases.
 
We are urging the removal of this section from any zoning or land-use bill going forward.
 
Zoning refinements
The MMA and local officials have been working on zoning legislation for many years to address several problems at the local level, and S. 81 includes several of these, including the following:
 
• Inclusionary zoning: The MMA has been a champion of legislation to clearly authorize cities and towns to adopt inclusionary zoning bylaws and ordinances to require developers to include affordable housing as an important component of large projects. This is the only clear way that cities and towns can ensure that new developments help to expand the stock of affordable housing. As part of ongoing efforts by cities and towns across the Commonwealth to add to the affordable housing stock, many local governments are passing and expanding inclusionary zoning bylaws, and we encourage the Legislature to support their efforts.
 
We have suggested minor changes to this section in order to ensure that the intended impact would be realized, consistent with a study by the Lincoln  Institute of Land Policy that demonstrated that inclusionary zoning bylaws are less effective when they include “in lieu of” provisions, which allow developers to make payments or provide housing units elsewhere in lieu of inclusionary zoning in the development in question.
 
• Development impact fees: Communities could charge development impact fees, to be used only for studies to review the specific project or for infrastructure improvements, but not for personnel-related costs, and all unspent money, plus interest, would need to be returned to the developer within six years.
 
• Master plan votes: In order to better connect planning and zoning, communities would be required to develop a comprehensive master plan, and communities would be given the option to reduce the two-thirds majority legislative vote required to make zoning changes down to a simple majority or a percentage in between.
 
• Site plan review: Site plan review would be codified in statute, with a statutory deadline of 120 days for local review.
 
• Land use dispute avoidance: The MMA supports the 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 the open meeting law and other factors as recommended by the Massachusetts Office of Dispute Resolution.
 
• ANR/minor subdivisions: The bill would address concerns over the “approval not required” issue by authorizing communities to adopt a minor subdivision zoning bylaw to provide for local review of subdivisions of six units or fewer. Permitting of minor subdivisions on existing rights-of-way would be required within 65 days, and approval of minor subdivisions on new rights-of-way would be required within 95 days.
 
Unfortunately, these six advances are more than eclipsed by the top-down weakening of local decision-making authority in S. 81. Overall, we feel that the bill presents an unbalanced package that benefits the for-profit development community at the expense of local control over basic neighborhood zoning and land use issues.
 
The pending legislation is far-reaching and complex, and proposes enormous changes that would have dramatic, widespread and unintentional impacts on municipalities, local residents and businesses for generations to come. We are encouraging legislators to return to the original goal of zoning reform, which is to develop a balanced package of updates and refinements to preserve local zoning authority, integrate modern planning approaches with zoning, and ensure a sustainable approach to building out neighborhoods and communities throughout the state.