MMA letter to Municipal and Regional Government Committee opposing zoning bill provisions that would replace local control with ‘by-right’ mandates.

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The Honorable James J. O’Day, House Chair
The Honorable Michael O. Moore, Senate Chair
Joint Committee on Municipal and Regional Government
State House, Boston
Dear Chairman O’Day, Chairman Moore, 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 H. 2420, An Act Building for the Future of the Commonwealth. The MMA’s Municipal and Regional Policy Committee has completed a careful and extensive evaluation of the language of this bill, and we must express serious reservations regarding the bill.
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. There are a number of concerning issues contained within the bill, and we have detailed the most significant of these below.
H. 2420 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. 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 almost always pursue projects for luxury and higher-end developments that yield the highest profits. Even more troubling, subsection (3) of Section 6 could be interpreted as opening the door to frivolous lawsuits against cities and towns if certain conditions are not met, further straining already limited municipal resources and potentially over burdening the court system.
Passage of H. 2420 would also mean that 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. The concept of open space residential development, if structured correctly, can be beneficial to communities, but only through the proper local process. Mandating this “by-right” raises issues, especially in already dense communities with little remaining undeveloped land.
H. 2420 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 conducted 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. And 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.
H. 2420 would also require a possible $15,000 bond for abutter appeals, which could have the effect of deterring legitimate concerns from being raised in court. Massachusetts enacted the SLAPP-suit law to protect citizens who raise concerns from intimidation.
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. H. 2420 does contain an inclusionary zoning provision, but the language has been watered down so that inclusionary zoning would likely only be passed in exchange for municipal concessions, such as allowing greater density, even if those concessions are not economically necessary for the project to advance. Communities that have already implemented inclusionary zoning ordinances would be forced to weaken their local policies to conform with H. 2420, so that these localities could only use inclusionary zoning when they make additional concessions to developers. Further, the bill allows for “in-lieu-of” payments, or construction of other units off-site, policies that have been proven to be largely ineffective. The MMA encourages the Committee to strengthen this provision by removing the subsections regarding municipal concessions and in-lieu-of payments.
The MMA is particularly concerned with Section 37, 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. The MMA asks that the Legislature 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 H. 2420 includes several of these, including:
• 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;
• 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- this section would serve 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.
We ask you to again oppose the many sections in H. 2420 that override local control of zoning decisions. Mandatory “by-right” zoning and one-size-fits-all rules are unworkable in a state as diverse as Massachusetts, with 351 cities and towns operating under carefully crafted zoning provisions that have been established by the residents of the community, acting through their Town Meetings, city and town councils, planning boards, boards of appeals, and even by popular vote. A Beacon-Hill-driven process to overrule local zoning regulations and processes would clearly create unintended consequences and interfere with policies that have been established for very good reason using a much more detailed knowledge of neighborhood impacts than the state could ever have.
Thank you very much for your consideration. If you have any questions, please do not hesitate to have your office contact me or MMA Director John Robertson at (617) 426-7272 ext. 122 or at any time.
Geoffrey C. Beckwith
Executive Director