Massachusetts senator sees lack of consensus on bill tackling zoning, housing

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BOSTON >> Proponents and opponents alike can agree: zoning reform is far from the sexiest issue to be debated on Beacon Hill and is not a subject that excites very many people.

But don't mistake those sentiments for ambivalence.

Supporters and detractors of the Senate's comprehensive zoning reform bill also agree that after more than 40 years, Massachusetts needs to freshen up its zoning laws. The question, however, is exactly how to bring zoning into the 21st century.

"The main issue around the bill right now is a lack of consensus about it. I think we've all been hearing different opinions from across the state from different stakeholders," Senate Minority Leader Bruce Tarr told the News Service. "I think there is a general agreement that there needs to be an updating of the zoning laws, but it seems to me there is still a significant difference of opinion on how to move forward on that."

Senators filed 63 amendments ahead of Thursday's debate on the bill (S 2144), which attempted to rein in restrictive local zoning regulations and incentivize communities to plan for sustainable growth. Additionally, the Ways and Means Committee has offered a re-drafted version of the bill (S 2311) as an amendment.

The Massachusetts Municipal Association, a powerful lobbying entity on Beacon Hill, also came out on Wednesday to express its "serious reservations" with the bill, including provisions that would mandate approval "by-right" of accessory apartments, high-density residential developments with an open space preservation component and multi-family housing districts.

"[The bill] 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, and prohibiting communities from setting density provisions less than 8 units per acre in rural communities and 15 units per acre in all other communities," the MMA wrote in a letter to senators.

The MMA called the Senate leadership bill a "sweeping departure" from previous zoning reform proposals and a "top-down weakening of local decision-making authority."

Tarr leads the Senate with 16 amendments filed, including one that would allow communities to create special zoning districts for affordable housing to help reach the requirements of the state's affordable housing law, known as Chapter 40B.

"This says a community could set aside an area for affordable housing and if it agrees to grant permits in a timely way and allows a density bonus and is trying to reach the 40B requirement of 10 percent affordable housing, that any unit created would count as 1.75 units towards the 40B requirement," Tarr said, noting that the amendment mirrors a bill he has filed for several years. "If a community wants to be proactive and create an affordable housing zone and expedite permitting, they would get extra credit towards Chapter 40B."

At least five amendments deal with a provision of the bill that would allow owners of single-family houses to build accessory apartments on their property without having to obtain special permits. Supporters have argued that the provision could generate thousands of new housing units without requiring state money.

Sen. Eileen Donoghue has put forward two amendments on the topic. One would increase the minimum lot size required to build an accessory unit from 5,000 to 7,500 square feet, and the other would stipulate that only the property owner or a member of the owner's family could reside in an accessory unit.

Sen. Patrick O'Connor filed an amendment to strike the section of the bill that deals with accessory units entirely.

The Massachusetts Smart Growth Alliance, which has banded together with the Massachusetts Association of Planning Directors, the Massachusetts Municipal Lawyers Association and others to support to bill, said it is closely watching about a half-dozen amendments that it said could further strengthen the bill.

Among those is a Sen. Sonia Chang-Diaz amendment that the Smart Growth Alliance said would add inclusionary zoning practices — which require a certain share of new housing construction to be affordable housing — to the state's civil right laws, making it illegal to engage in exclusionary zoning.

A Tarr amendment, though, would remove inclusionary zoning requirements from the bill entirely.

"I'm not necessarily opposed to the concept, but I want to see greater guidance and more information about what kinds of concessions would be granted in terms of density and whatnot," he said.

Similarly, Tarr filed an amendment to strike the section of the bill that would allow for the use of development impact fees, though he said he is not outright opposed to the idea.

"I could be convinced to support them if there are greater boundaries and a methodology put into the statute," he said.

The Massachusetts Municipal Association said it appreciated the inclusion of four main provisions, including development impact fees, but called the inclusionary zoning section "watered down" by a requirement that municipalities make concessions, including an allowance for greater density.

Massachusetts has an array of affordable housing laws and programs, but home ownership and affordable housing still remains beyond the reach of many despite the state's higher median income levels, compared to other states. Zoning is largely controlled at the local level in Massachusetts, which means different rules for housing development in each of the state's 351 cities and towns.

Housing and zoning issues are major priorities for some members of the Legislature, but comprehensive proposals over the years have failed to gain traction with legislative leaders.

Senate President Stanley Rosenberg on Monday called zoning reform "a key element in helping solve our housing shortage here in the commonwealth," but House Speaker Robert DeLeo was non-committal when asked if the House plans to take the issue up before formal legislative sessions end next month.

"I'd have to take a look at it," DeLeo said Monday. "I can tell you that with the word getting out that this bill was going to be taken up I heard form a number of folks, developers, builders and what not, that they'd like to talk to me and the members of the committee and other members of the House about the bill, so at this time I don't know."


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