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On the level: Zoning in the United States, Part 4.

February 29, 2008
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As we’ve seen in this series, zoning has far-reaching ramifications and must be planned and executed with the entire community in mind.




In the September 2007 issue, we discussed some of the history of land use control through zoning in the United States. We saw that zoning was found to be constitutionally acceptable by the Supreme Court in the case Euclid v. Ambler but that issues such as pre-existing nonconforming uses required legislative remedy. In the November issue, we discussed other remedies intended to provide relief and flexibility to zoning such as the variance, the exception and certain innovative devices like the floating zone, contract zoning and the cluster subdivision. And in the December issue, we talked about the downside to zoning. Through the 1970s and 1980s, zoning was employed to protect property values and limit growth through the employment of regulatory barriers such as large-lot zoning requirements. One result has been a steep increase in homebuilding costs putting housing out of reach of low-income families in many communities. Several states have responded to this increase with a series of legislative measures. An example is the Massachusetts “Anti-Snob Zoning Act” of 19691.



Massachusetts "Anti-Snob Zoning Act"

One of the earliest legislative responses to a lack of affordable housing due to exclusionary zoning was Chapter 774 of the Acts of 1969, which amended Massachusetts General Law Chapter 40B. The Act was subtitled “An Act Providing for the Construction of Low or Moderate Income Housing in Cities and Towns Where Local Restrictions Hamper Such Construction.” The law established standards under which the local special permit granting authority (SPGA) may override restrictive local zoning and planning requirements and grant a comprehensive permit to provide for the construction of low- or moderate-income housing.

The Chapter 40B comprehensive permit process has been used extensively by housing developers in Massachusetts in the recent 10 years (reportedly 400 developments totaling more than $1 billion in construction cost). In a typical project, an applicant submits an application for a comprehensive permit to the town’s SPGA. (Under the rules of the program an applicant must be a limited dividend entity, meaning that the developer’s profit is limited to 20 percent.) The application may require waivers from any or all local zoning ordinances and planning rules and regulations. The application includes a plan showing building siting, infrastructure, topography and landscaping in a general manner and a list of requested waivers. The SPGA must consider the application unless 1) 10 percent or more of the existing housing units in the town already meet the definition of low- or moderate-income units, 2) sites used for moderate-income housing already equal 1.5 percent of all land in the community zoned for residential, commercial or industrial purposes or 3) the application would result in moderate housing on more than 0.3 percent of the total land or 10 acres, whichever is larger, in any calendar year.

Twenty-five percent of the dwelling units (the “affordable” units) in the development must be marketed to persons in the low/moderate-income sector.2 The remaining 75 percent of the units are sold at normal market rates, but all units must be identical as to construction, appearance and amenities. The affordable units are distributed through a local lottery system to potential purchasers who have proven their income status through documentation. Future resales of these units must also be to people in the low/moderate-income range, a requirement recorded with the deed to the properties.

The SPGA, usually the local zoning board of appeals, must hear the application for comprehensive permit within 30 days of the filing and must make a decision within 40 days after the closing of a public hearing. The SPGA considers all aspects of the proposal, hears testimony from the developer and his experts and from members of the public. The SPGA also seeks comment from other departments of the community (e.g., health board, building inspector, conservation commission, fire chief, police chief, etc.). But under the comprehensive permit definition, the final decision lies entirely with the SPGA.

The presumption of the Act is that a comprehensive permit will be issued. “Guidelines for Local Review of Comprehensive Permits” published by the Massachusetts Department of Housing and Community Development (DHCD)3 states:

In reviewing an application, the Zoning Board of Appeals should work to eliminate obstacles to issuance of a comprehensive permit, devising conditions to address local concerns … The statute requires that a comprehensive permit be granted when it is “consistent with local needs” … on some sites it may be possible to build affordable housing that does not comply with certain local restrictions, but nevertheless has no negative impact on local health, safety, environmental, design, open space, and planning concerns. … For other sites, the impact on these local concerns may be limited enough so that these concerns are outweighed by the need for low and moderate income housing. In either case, the law requires the Board to waive the local restrictions. (Emphasis added)

A special permit granting authority may grant, grant with conditions or deny the application for a comprehensive permit. The SPGA has little discretionary power and may deny a permit only when “there are intractable issues for which the board has been unable to mitigate the impact of the development” in the words of the Guidelines.4Appeal of the SPGA’s decision may be made to the Housing Appeals Committee of DHCD. “Intractable issues,” if recognized on appeal, usually involve public health or safety. An applicant for a comprehensive permit may also appeal on the basis of conditions attached to a comprehensive permit, which, in the opinion of the applicant, would make the project uneconomic. According to the guidelines, conditions attached to a comprehensive permit should “mitigate adverse impacts and improve the development.”5 When appealing on the basis of conditions, which would make the project uneconomic, the burden is on the applicant to demonstrate the economic effect of the conditions. In the case of appeal of denial, the burden is on the SPGA to justify its denial. Of the many appeals brought to the Housing Appeals Committee in recent years, the HAC has found for the applicant in more than 90 percent of the cases.





An Example

An example of a recently issued comprehensive permit under Chapter 40B, and which is presently under construction, is a project on a 22-acre site. The site was zoned for single-family detached dwellings on one-acre house lots. Under standard zoning requirements, the site had a potential of about 16 house lots. (Four acres of the site are wetlands that may not be disturbed, according to state law.) The project was finally granted a comprehensive permit for 40 units of housing in four-plex arrangement (four units per building) of which 10 units are marketed to families who can demonstrate “low or moderate” household income. In granting the comprehensive permit, the SPGA waived zoning requirements of parcel size and building setbacks, as well as several road design requirements like pavement width and sidewalks. All units are two-bedroom units of 1,800 to 2,000 square feet. In addition to the 10 four-plex buildings, the developer is constructing 2,350 lineal feet of road, a sanitary sewage disposal facility, a total onsite wastewater management system, 10 acres of designated (protected) open space and a community building for use by the residents. The project offers two styles of dwelling at a market rate of $399,900 and $429,900; the 10 same-style units are sold at the “affordable” price of $156,500.66




Observations

Zoning is a prime growth-control mechanism for U.S. communities. Growth may be directed and encouraged by carefully written zoning ordinances and bylaws. Communities are able to restrict commercial and industrial land uses to those areas least intrusive on residential neighborhoods while taking advantage of existing and potential transportation facilities and general infrastructure. Residential growth may be directed and encouraged in areas most practical from the standpoint of public services like public transportation and schools. It is especially true during times of rapid growth and expansion that zoning control is vital to the cultural, social and economic well-being of a community.

Most residential, commercial and industrial development in the United States is financed and constructed by privately funded developers. Land cost, design and construction of facilities and all infrastructure, with the cost of the necessary legal and technical support involved, is privately financed in most cases (with the exception of government housing projects, for instance). Private entities meet the market demand for expansion where permitted and influenced by local control. The result is often an increase in property values that forces housing beyond the means of large segments of the population. In addition, large lot zoning requirements may have the effect of forcing housing farther and farther from centers of employment creating more demand for highways, public transportation and extension of infrastructure such as water, gas and electricity supply and waste treatments.

Wherever zoning is imposed as a land-use control, there will be conflicting interests of residents, entrepreneurs, public officials and environmentalists. Restrictions on the use of land through zoning has been characterized as within the “police power” of the state, included in “all those regulations of property that the courts find consistent with due process and that do not require compensation of the owner.”7The argument has been made that zoning is, therefore, an example of “obligatory land expropriation,”--that is, the eminent domain power of the state. Popular acceptance of zoning in the States has, however, obviated this argument except in the most extreme cases of zoning constraints like excessively large lot area requirements.

Zoning laws must be carefully planned and written with the benefit of the whole community in mind and with consideration of the unintended consequences of growth. Allowances may be required when community interests conflict with individual interests. It is also true that privately funded entrepreneurial interests rarely respond to social or cultural concerns except as reflected in market conditions. In short, zoning is a device with far-reaching ramifications and must be planned with both the flexibility to respond to inequities and changing conditions, and the inflexibility to direct and control growth according the community’s best-laid plans.





References

1. The Massachusetts Comprehensive Permit Law M.G.L. c. 40B §§ 20-23, enacted as Chapter 774 of the Acts of 1969, also known as the Comprehensive Permit Statute, Chapter 40B or the “Anti-Snob Zoning Act,” encourages the Construction of Affordable Housing using locally granted permits.

2. Low or moderate income is defined as 80 percent of the median income of the area adjusted for household size as determined by the Massachusetts Department of Housing and Community Development (DHCD).

3. “Guidelines for Local Review of Comprehensive Permits,” Massachusetts Department of Housing and Community Development, October 1999, Section IV-A. Located at www.state.ma.us/dhcd/components/hac.

4. Ibid.

5. Ibid., Section IV-B.

6. The “affordable” price is calculated to provide monthly housing costs not to exceed 30 percent of monthly income for households earning 80 percent of area median income adjusted for household size.

7. Local Planning Administration, International City Managers Association, 3rd edition, 1959. Library of Congress card # 59-14781, p. 27.


Content for this article was extracted from a paper written by the author titled, “Land-Use Control through Zoning” presented at the FIG Commission 3 workshop, Spatial Information Management Toward Legalizing Informal Urban Development, at Sounio, Greece, March 28-31, 2007.



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