MMA letter to conference committee on senate bill to restrict local zoning and impose housing mandates

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The Honorable Edward Coppinger, House Chair
The Honorable Julian Cyr, Senate Chair
Joint Committee on Community Development and Small Business State House
State House, Boston
 
Dear Chair Coppinger, Chair Cyr, and Members of the Committee,
 
On behalf of cities and towns across the Commonwealth, the Massachusetts Municipal Association is writing to express our significant concerns with S. 81, An Act promoting housing and sustainable development. The MMA’s Municipal and Regional Policy Committee completed a careful and extensive evaluation of the bill, as well as in its previous form as S. 2311 during last year’s session, and we must express our serious reservations regarding many of the key provisions of the bill.
 
Any amendments to the existing zoning and land use laws in Massachusetts will have profound and long-lasting impacts on our communities and residents, and will certainly affect the quality of life in cities and towns for generations to come. For this reason, proposed changes to zoning and land use statutes require very careful consideration.
 
While various proposals to better connect planning and zoning practices have been in circulation and discussion for some time, S. 81 reflects a sweeping departure from previous versions of zoning reform. Previous zoning proposals prior to the bill narrowly passed by the Senate last session reflected a balanced approach, and incorporated many hours of study and negotiation between all impacted parties. S. 81 has a greatly expanded scope and reach, and would override basic zoning authority at the local level. A bill this technically complex, with such wide-ranging consequences for all communities across the Commonwealth, should be carefully considered, with ample time to consult with the local governments and citizen panels that would be directed to implement these mandates. Legislation of this nature should not advance until its impact on communities and neighborhoods is fully evaluated and clearly understood.
 
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 by- laws 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 re-write zoning codes for thousands of neighborhoods across Massachusetts.
 
The MMA’s concerns are presented below by topic. These sections, many of which which would erode local control and provide unprecedented windfalls for developers, would only serve to place a heavy burden on already under-staffed and over-worked 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 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 less than 8 units per acre in rural communities and 15 units per acre in all other communities. The MMA is greatly concerned that this 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 projects for 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, and 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.
 
Additionally, 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 the suburbs, while 82 did not have explicit authorizations. Most of these allow accessory apartments through special permits (71 of the 104). Most of the bylaws and ordinances have very specific criteria for granting permits that varied substantially. Overriding these already-existing by-laws 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 those 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.
 
Unnecessary and Dangerous “Discriminatory Land-Use Practices” Section
The MMA is particularly concerned with Section 34A, on discriminatory land use practice. This poorly drafted section raises the prospect of excessive litigation, at great expense to municipal governments and local taxpayers, regarding nearly any local zoning decision. We fear that this provision could open a floodgate of litigation against municipalities challenging routine zoning and other actions. This new provision is exceedingly broad: it would make unlawful not only intentional discrimination, but any action that had an adverse incidental effect on the availability of affordable housing. Potentially this section could penalize not only decisions made, but failures of municipalities to take action.
 
Further, federal remedies for intentional discrimination already exist. Section 1983 constitution claims and Fair Housing laws already regulate intentionally discriminatory municipal action. This provision goes beyond and makes discriminatory land use impacts, whether intentional or not, unlawful.
 
Finally, it displaces the usual deference afforded municipal decision-making under home rule powers. Municipalities could only defend themselves from and in lawsuits by meeting a fairly stringent standard to support a decision, 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.
 
The MMA strongly urges the Legislature to remove this section from any zoning or land-use bill going forward.
 
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:
 
• 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 would encourage the Legislature to support their efforts.
 
We would suggest minor changes to this section in order to ensure that the impact is what was intended. A study by the Lincoln Land Policy Institute demonstrated that inclusionary zoning by- laws 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. The MMA asks that you remove these provisions in subsection (c) of Section 9F to encourage strong inclusionary zoning practices that will actually impact the affordable housing stock.
 
• 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 6 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 2/3 majority legislative vote required to make zoning changes down to a simple majority or a percentage in between; and
 
• 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 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.
 
• 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 6 units or less. 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 unfortunate top-down weakening of local decision-making authority, making S. 81 an unbalanced package that clearly benefits the for-profit development community at the expense of local control over basic neighborhood zoning and land use issues.
 
S. 81 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 return to the original purpose of zoning reform, which is to develop a balanced package of updates and refinements that preserve local zoning authority, integrate modern planning approaches with zoning, and ensure a sustainable approach to building out neighborhoods and communities throughout the state.
 
We respectfully ask you to remove all “by-right” provisions in the bill, restore the invaluable tool of inclusionary zoning to full strength, and consult with your communities to fully learn how this legislation would impact the cities and towns you serve.
 
Please do not hesitate to have your staff contact me or MMA Legislative Analyst David Lakeman at (617) 426-7272 at any time.
 
Thank you very much.
 
Sincerely,
 
Geoffrey C. Beckwith
Executive Director & CEO