MMA letter to Senate Ways and Means Committee on comprehensive zoning and land-use bill

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The Honorable Karen Spilka, Chair
Senate Committee on Ways and Means 
State House, Boston

Dear Senator Spilka and Distinguished Members of the Committee,

On behalf of the cities and towns of the Commonwealth, the Massachusetts Municipal Association appreciates the opportunity to offer comments on S. 2144, An Act Promoting the Planning and Development of Sustainable Communities. The MMA’s Municipal and Regional Policy Committee completed a careful and extensive evaluation of the bill as written in its previous form (S. 122), with a focus on the impact that the proposed zoning and land use law changes would have on our cities and towns. We have also had a chance to review the issues raised by the Home Builders & Remodelers of Massachusetts, the Massachusetts Association of Realtors, NAIOP and others, and must express our grave concerns with their proposed changes to S. 2144.

Any amendments to existing zoning and land use law in Massachusetts will have profound and long-lasting effects on our communities and residents, and will impact the quality of life in cities and towns for generations to come. For this reason, any and all proposed changes demand very careful consideration.

The MMA’s comments and suggested language changes, presented below by topic, would strengthen and improve the bill by 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 S. 2144 if these comments and recommended improvements are not incorporated into the bill.

A. MMA COMMENTS ON S. 2144 AND RESPONSES TO THE DEVELOPER AND REAL ESTATE LOBBYISTS

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 date of the first notice of a public hearing on proposed changes to zoning ordinances and bylaws is the time at which a property shall be subject to subsequently enacted zoning amendments. In practical terms, this language is necessary to prevent a flood of applications intended to avoid new zoning requirements and bylaws.

Special Permit Vote and Length
Sections 15 and 16
The MMA requests a language change in Section 15, pertaining to the vote required for issuance of a special permit, to make it a local-option decision (by a supermajority vote) as to whether the required vote is changed from a supermajority to a simple majority. 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 bylaw. The MMA does not support a state-mandated change in the threshold without express acceptance of that change at the local level, because many communities do not have specific language regarding the necessary vote in their local ordinances or bylaws, and thus they would have no voice in changing the vote threshold to a simple majority. The MMA requests a change the language in Section 16, regarding the term of special permits, to allow a special permit to be issued for a term of up to three years, not the three-year minimum 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 approve an extension within 65 days, the new permit should require a new application, notice, and public hearing.

Site Plan Review
Section 19
The MMA can support this section, regarding site plan review, if modifications are made to avoid onerous evidentiary requirements and eliminate language triggering constructive approval of applications if time thresholds are not met. Constructive approval is a highly controversial process, especially when time periods are not adequate, such as the 95-day provision in S. 2144, as this may be too short for an appropriate and thorough review process. The language in this section should be clarified to indicate that an application will not be approved if submission requirements are not met. Mitigation for adverse impacts directly attributable to projects should extend to nearby properties, and not only those that are adjacent to the developments.

Development Impact Fees
Section 20
The MMA supports the statutory authorization of development impact fees. We ask that the language be clarified to clearly authorize communities to use the impact fees to conduct mitigation impact studies on a project-by-project basis, including the use of 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 that it does so.

Inclusionary Zoning
Section 21
The MMA strongly supports inclusionary zoning. It is critically important that the bill include language expressly allowing inclusionary zoning provisions in local ordinances and by-laws. Inclusionary zoning is a vital and powerful tool that will actually result in the construction of affordable housing. Zoning reform without inclusionary zoning will do nothing to address issues of profitability and availability of affordable housing. We know the for-profit development community does not support inclusionary zoning, but this is the only tangible way that cities and towns can ensure that housing remains or becomes more affordable at the local level. Inclusionary zoning will actually benefit developers because future projects will become more attractive if cities and towns can be assured that affordable units will result.

Variances
Section 23
The MMA opposes the proposed language in section 23 regarding variances. Our members are deeply concerned that this section offers too much latitude in granting variances, specifically the language stipulating that “substantial hardship … financial or otherwise” would be an acceptable standard for a variance. This is not the case, as this overly broad, liberal and loose language would invite costly litigation and appeals, an undesirable result, to say the least. The MMA asks that this wording be removed.

Consolidated Permitting
Section 25
The MMA supports language authorizing consolidated permitting, but the section must not be a mandate and should instead be a local option. Further, there should be no “constructive approval” provisions, and we strongly oppose the last sentence in Section 3 of the new Chapter 40X (in lines 684-686), as this would strip many local boards of their lawful review authority in the event of a scheduling conflict or last-minute absence from the consolidated hearing. The threshold for an "eligible project" must be appropriate for all municipalities, and the MMA supports a higher threshold or providing cities and towns with the ability to choose their own thresholds, as we believe the current language would trigger consolidated permitting on a routine basis, which would be impractical given the scheduling demands and conflict that would arise. In addition, consolidated permitting provisions should require that applications be fully complete in advance of the process. Further, the 45-day time period as written is too short to accommodate the difficulties involved in coordinating scheduling among multiple boards, almost all of which are served by volunteers. Thus the timeframe should 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 26
As drafted, the Planning Ahead for Growth section is a local option, but we believe that the programmatic 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 that do not have 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 27
This section would restructure local master plans, and should be carefully reviewed to ensure that the newly required master plan components would be realistic for municipalities to complete, otherwise the provisions would impose an undue burden on communities. The language in section 27 should be amended to indicate that any master plan in effect at the passage of this act shall remain in effect and would not be subject to this Act for up to 15 years. Adoption of a master plan, or extension or revision, should be by a two-thirds vote of the legislative body of the municipality. However, municipalities should have the option to change that threshold (via a two-thirds vote) to a range anywhere between a simple majority and a two-thirds majority, with any change taking effect 6 months after the vote is taken.

Approval Not Required (ANR)
Section 31
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 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 32
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 requests that this language be removed from the bill because, as previously noted, municipalities must be able to set travel lane width standards based on local needs, and the section 32 language implies that widths greater than 24 feet could be considered excessive.

Parks and Playgrounds
Section 33
The MMA supports the language 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
We do not understand the intent or impacts of sections 40, 41 and 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, and the impacts on municipalities should be explained before adoption of the language.

Master Planning Incentive/Presumption
Section 43
The MMA strongly opposes language that would remove or alter the current legal presumption that existing zoning ordinances and bylaws are valid and “serve a public purpose.” Section 43 would allow courts to invalidate municipal ordinances or bylaws that are inconsistent with new master plans, even though these master plans could be adopted by a majority vote, and amendments to zoning ordinances and bylaws would require a two-thirds vote. Thus, it will be difficult for many communities to bring their master plan and their ordinances and bylaws into harmony, which would lead to significant confusion and uncertainty regarding the legal status of their local zoning provisions, and invite litigation and delays at the local level. As municipalities already have absolute presumption, section 43 would actually create a disincentive to adopt new, updated master plans. Section 43 should be amended to strike language that would allow courts to invalidate ordinances and bylaws that do not comply with master plans.

B. MMA COMMENTS IN OPPOSITION TO H. 4140

In addition to reviewing S. 2144, the MMA has had a chance the closely examine H. 4140, An Act to Expedite Multifamily Housing Construction and Cluster Development. The MMA strongly opposes allowing “by-right” development, as local zoning decisions should be carefully reviewed and made by local legislative bodies and the appropriate legal authorities and boards in municipalities. As many of these provisions would simply grant additional rights to developers without addressing many of the factors that have led to the scarcity of affordable housing in the Commonwealth, the MMA strongly opposes incorporating H. 4140 or any of its provisions into S. 2144. We have detailed some of our concerns below.

“By-Right” Language
The MMA is gravely concerned by the “by-right” language in the bill. Eastern Massachusetts is one of the most densely populated areas in the United States, whose citizens care deeply about sustainable, environmentally friendly communities and land use, and this language is antithetical to many of those goals. Currently, zoning is controlled by the citizens of the municipality, not state-level bureaucrats or other officials. H. 4140 would take these decisions out of the hands of those who know their communities best. Additionally, “by-right” legislation does nothing to address actual affordable housing or the profit motivations that drive developers to build multi-million dollar condominiums and luxury apartments rather than increase the affordable housing stock. The MMA opposes zoning reform legislation that features “by-right” language. The negative impact on neighborhoods would be significant, and there are no provisions that would require or increase the amount of affordable housing in municipalities. Rather, we predict that H. 4140 would actually raise the overall cost of housing, as developers, incentivized by understandable profit motivations, would focus on high-end housing – this is exactly what we have been seeing in Massachusetts over the past several years.

Additional Bureaucracy
The MMA believes local zoning decisions are best made by local officials, not state or federal agencies. H. 4140 would give the Department of Housing and Community Development approval authority over local multi-family zoning districts, and allow the agency to develop and impose further bureaucratic and programmatic requirements on cities and towns. This is highly inadvisable, as state agency control has the potential to politicize zoning policy and impose one-size-fits-all standards on communities, ignoring the diverse nature of localities across the Commonwealth.

Inclusionary Zoning is a Much Better Tool for Affordable Housing
The goal of increasing the supply of affordable housing in the Commonwealth is a laudable one, but we are forced to conclude that very little in H. 4140 would actually lead to affordable housing. The bill gives developers and land owners the ability to develop more land and at greater density, but does nothing to address the profit motives that lead to the development of multi-million dollar condos and luxury apartments over affordable multi-family housing. In our comments above, we strongly advocate for inclusionary zoning authority at the local level, as this would be a much more effective tool to address local housing needs.

C. ACCESSORY APARTMENTS

Following up on our discussion with Senate staff on May 10, we are also offering further input on the question of accessory apartments.

The MMA opposes a state mandate allowing accessory apartments “as of right,” as this would create significant building code and enforcement issues at the local level. Communities already have the authority to adopt accessory apartment provisions in their local zoning ordinances and bylaws, making these decisions based on local needs and conditions. Because of limited resources at the local level, there are likely thousands of unapproved accessory apartments throughout the state. There is no way that the Commonwealth could have enough information to know whether the legalization of these dwellings would be safe, advisable, or consistent with health, safety and building codes. We are very interested in working with you in the future to explore and advance possible frameworks or incentives that could lead to an increase in the number of legally acceptable accessory apartments. In the meantime, though, accessory apartments should continue to be a local option, not a mandate.

SUMMARY

Once again, on behalf of cities and towns across the state, we thank you for your consideration of our comments and recommendations.

S. 2144 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 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 nature and quality of neighborhoods and communities throughout the state.

Local officials and the citizens of Massachusetts rightly expect all legislation to honor these important principles. We look forward to continuing to work with you throughout 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 me, John Robertson or David Lakeman at (617) 426-7272 at any time.

Again, thank you.

Sincerely,

Geoffrey C. Beckwith 
MMA Executive Director & CEO

CC: The Honorable Daniel Wolf, State Senator
Mr. David Sullivan, Office of the Senate President