For years, Massachusetts has been struggling to control sprawl. The MBTA has been systematically expanding transit service as an alternative to the automobile. Cape Cod and Martha’s Vineyard have used regional planning agencies to regulate new development. Since 1991, the state has spent over $321 million to conserve 279,000 acres of open space. Gov. Mitt Romney and Commonwealth Development Secretary Doug Foy are using transportation investments and cash inducements for municipalities to encourage dense development, especially affordable housing, in downtowns and near transit stations.
Massachusetts should be on its way to achieving “smart growth,” but it is not. The classic New England “town and country” landscape is fast disappearing as sprawl is on the march. Municipalities lack the capacity to plan effectively because the Commonwealth has some of the most outmoded zoning laws in America, according to the American Planning Association. The most recent revision of the state’s zoning act, Chapter 40A of the General Laws, took place in the 1970s, years before “smart growth” was conceived. If Massachusetts is to control sprawl and create the communities its citizens want, the state needs to revamp its state zoning laws along the lines of the Massachusetts Land Use Reform Act (LURA), of which we are the legislative sponsors.
For several years we have worked with local and state officials, planners, and affordable housing advocates in a zoning reform working group to draft this legislation, which provides our cities and towns with better tools to achieve “smart growth,” protect community character, build affordable housing, and preserve significant open space.
In Massachusetts, the responsibility for planning and regulating development is a local matter. Unfortunately, the state laws that set the framework for local zoning control contain unclear or restrictive provisions that effectively deprive municipalities of the authority to carry out their responsibilities. A recent study of home rule in Massachusetts by Harvard University’s David Barron, Gerald Frug, and Rick Su, Dispelling the Myth of Home Rule, finds: “State law…makes it difficult for cities and towns to undertake meaningful planning efforts or to change current land use laws in ways that would promote a more community-friendly environment.”
The current planning, zoning, and subdivision control statutes actually work to subvert local planning by laying down a minefield of exemptions, prohibitions, and zoning freezes. So frustrated are local citizens at their lack of ability to plan proactively that many feel the only way to exert control over development is to delay and frustrate any proposed project—an unfortunate triumph of process over substance. This ends up thwarting the creation of reasonably priced housing, attractive town centers, and beneficial economic development projects.
The first thing the Commonwealth must do is make it necessary, and possible, for communities to implement master plans that reflect their conservation and development goals. Unlike two-thirds of other states, Massachusetts does not now require that zoning and other land use regulations be made consistent with community master plans. Citizens may spend years developing a master plan for their town, but, because it is an advisory document, it often does not get translated into changes in the zoning code and subdivision regulations.
LURA would require that municipalities make their master plans and their land-use regulations consistent. Though it would be a burden for municipalities to achieve this consistency, it is one burden the Massachusetts Municipal Association believes is worthwhile within the overall context of this legislation.
One obstacle to effective planning is “grandfathering.” Whenever a zoning change is proposed, a developer can submit a sketch of a subdivision plan that freezes zoning in place, enabling him or her to develop under current zoning regulations for almost a decade thereafter, the longest and broadest such provision of any state. Massachusetts vests the right of development early in the process, when a project is proposed, long before it has been fully designed or approved, tying the hands of local officials and developers alike.
“By allowing developers’ rights to vest simply with the submission of a preliminary plan, current zoning law increases the very kind of development that the municipality wants to regulate,” explain Barron, Frug, and Su. “In the end, not only are municipal planning attempts frustrated but the interest of developers may also be undermined. They are given an incentive to engage in defensive development even if they had no plans to develop anything beforehand.”
An even more unusual aspect of grandfathering, Massachusetts-style, is the right of a developer with an approved subdivision plan in hand to build something completely different, not even necessarily a subdivision, during the zoning freeze period. Instead of protecting legitimately approved projects, this provision merely serves as a loophole through which any property may be inoculated against a zoning change.
To remedy this situation, LURA would provide statutory zoning freezes only for approved subdivision plans, limited to three years, and applicable only to those subdivision plans.
Not only do zoning changes spur unwanted development because of grandfathering, but adopting new zoning of any kind is particularly difficult, because of the requirement that zoning amendments be approved by a two-thirds “supermajority” of town meeting or city council. Massachusetts is the only state that requires this level of approval. LURA would allow communities to reduce the two-thirds vote requirement to a simple majority.
Another problematic feature of current land-use laws is the approval-not-required (ANR) provision, which exempts from local review the subdivision of roadside properties into building lots—yet another exemption unique to Massachusetts. Unregulated roadside development leads to linear sprawl on substandard roads in remote locations, which creates costly drainage and road maintenance problems that the municipality must then cope with. If any one aspect of Massachusetts’s land use laws could be described as the antithesis of smart growth, the ANR provision would have to be it. LURA would eliminate this statutory exemption and allow communities to shape development along their roadways.
t is vital that zoning reform not constrain the development of affordable housing, a critical need in Massachusetts. To that end, we have worked closely with housing advocates such as the Citizens’ Housing and Planning Association to craft LURA in a way that encourages affordability and diversity in housing. Our bill changes the subdivision law to allow communities to require that residential subdivisions integrate affordable units into new neighborhoods (equal to as much as 25 percent of the number of market-rate units) or provide resources for affordable units to be constructed off-site.
The ability to create affordable housing through zoning is also strengthened. Requirements for the housing element in master plans have been expanded to emphasize affordability and diversity in housing production. This much-improved housing element, coupled with the consistency requirement, is a strong incentive for communities to address their housing challenges. Finally, LURA exempts affordable housing projects from impact fees and rate-of-development limits.
LURA also helps communities deal more effectively with the fiscal impact of development. More than 60 percent of new developments in the United States are required to pay impact fees to help create or improve streets, sewers and water supplies, parks, police and fire facilities, affordable housing, schools, libraries, and similar capital facilities. But not here. Under LURA, however, Massachusetts communities would be able to levy impact fees, a growth accommodation tool that could lessen local resistance to new projects. Curtailing ANR subdivisions would also have a fiscal benefit, since road improvement costs could no longer be foisted upon municipalities by unregulated development.
Support for comprehensive zoning reform has been building, with 48 legislators cosponsoring LURA this session. Individuals representing dozens of communities and organizations spoke in favor of the bill at a legislative hearing last summer. Commonwealth Development Secretary Foy has made zoning reform and this bill one of the planks of his smart-growth platform.
Nevertheless, LURA has its opponents. Real estate development interests argue that the law would make it easier for communities to block development and make it more difficult to build affordable housing. But ANR subdivisions and excessive grandfathering protections—the two major development tactics LURA would curtail—do not produce significant affordable housing, only sprawl. In contrast, LURA’s affordable housing provisions would do much more to facilitate such production.
Perhaps the biggest change that zoning reform could produce would be a more positive, rational climate for development. If communities had real ways to control development on their fringes, they would be far more likely to support compact, mixed-use development in town and city centers, as well as affordable housing and economic development projects. To reach that point, our cities and towns need effective planning and zoning tools and the authority to implement them. This is the promise of the Massachusetts Land Use Reform Act.
Stephen Kulik and Douglas Petersen are state representatives from Worthington and Marblehead, respectively, and Pamela Resor is state senator from Acton. The full LURA bill, along with explanatory materials, is available online at www.massmunilaw.org.