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Zoning Reform Needed to Make Massachusetts Housing Affordable

Over-regulation Drives Up Housing Costs

Real estate attorneys and other professionals in Massachusetts agree that housing in the Commonwealth is not affordable to most people. Massachusetts does not produce enough new housing units to make the market rate housing affordable to the average worker. Zoning isn’t the sole source of the problem, but land use regulation is the infrastructure upon which Massachusetts’ ability to compete economically against other states depends. housing-1-927544-m[1]

Land Use Partnership Act (“LUPA”)

Fortunately, extensive work has gone into trying to improve this situation, most notably the Zoning Reform Task Force meetings of 2007-2009. The result of that effort, the Land Use Partnership Act (LUPA), is a step forward, but far from perfect. It was filed in both the 2009-2010 and the 2011-2012 legislative sessions. When that effort stalled, for many, the zoning reform effort seemed to pass into abeyance.

LUPA has the objective of advancing five inter-related goals:

  1. That communities prepare and adopt land use plans that take into account the Commonwealth’s broader land use objectives;
  2. That communities enact and implement zoning and other land use regulations in a manner consistent with their overall plans and objectives;
  3. That communities enact and implement zoning and other land use regulations that, to the extent practicable, make development as of right;
  4. That communities adopt practices that, to the extent practicable, make land use permitting prompt and predictable; and
  5. That property owners obtaining land use permits have a reasonable opportunity to use them.

Proposed Changes for All Communities

1. Limitations on Requirements for Subdivisions.  This would limit consideration of effects of traffic outside the property to be developed, although impact fees would be allowed, and would limit application of rules and regulations already covered by local ordinances or bylaws (for example, stormwater management).

2. Requirement of Declaration of Development Intent for Plan Freezes.  This would require property owners or developers to file a declaration of development intent (e.g., an intent to develop 100 single-family houses or to develop 500,000 square feet of industrial space) prior to the filing of subdivision plans in order to obtain a zoning freeze. An eight-year zoning freeze would run from the date of filing of the declaration of development intent, render inapplicable zoning changes for which the first public notice was given after the filing of the declaration, and apply to the intended development, not to the land.

3. Expansion of Permit Freezes.  New construction or operations under a special permit or site plan approval where the construction or use began within two years after issuance of the permit would not be required to conform to subsequent zoning changes or other local land use ordinances or bylaws. A property owner or developer who invests substantially in site preparation or infrastructure would be assumed to have commenced the project.

4. Limitation of Scope of Site Plan Review/Required Mitigation.  LUPA would require only a generally applicable, reasonable, and consistent impact fee on development. The fees would be dedicated to a pre-established capital improvements plan and would not include assessments for educational facilities or services.

5. Limitations on Certain Appeals.  This would limit appeals under the subdivision control law and site plan review to providing an opportunity to ensure that the relevant authority did not make a clear error of fact or law, unlike broad judicial review of special permits.

6. Majority Vote for Zoning Ordinances/Bylaws.  This would allow for a local option as to whether a majority vote or two-thirds vote would be required for zoning changes.

7. Allow Regulation of Maximum Residential Floor Area. This would eliminate the existing prohibition on such regulation.

8. Explicit Statutory Authorization. This would explicitly affirm municipalities’ authority to adopt a site plan review, impact fees, Transfer of Development Rights (TDR), cluster/Open Space Residential Development (OSRD), and form based zoning. 

Possible Changes in 2015

Six of the eight possible changes for all communities listed above are likely to be seen as “zero sum” changes by municipalities, property owners, and developers. That is, any change that is perceived as somewhat positive from the perspective of a municipality is likely to be perceived as somewhat negative from the perspective of property owners and developers, and vice versa.  Nonetheless, from the Administration’s perspective, there may be reasons to favor a change independent of those points of view. In January 2015, when the incoming governor takes office, House Bill No. 1859 will undoubtedly resurface. A new governor who is willing to “try, try again” presents a new opportunity to break the logjam.

As experienced Massachusetts real estate attorneys, Pulgini & Norton can help you with all of your real estate legal needs. If you have a question regarding your property rights, give us a call today at 781-843-2200 or contact our office online, and we can help legally clear the way for you.

More Posts:

Living off the Grid and Real Estate Law, Massachusetts Real Estate Lawyer Blog, May 14, 2014

How a Real Estate Lawyer Can Help You With Zoning Restrictions, Massachusetts Real Estate Lawyer Blog, April 9, 2014

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