Insuring Planned Growth

The Massachusetts Community Planning Act

The stars seem to be aligning for a serious improvement in the way land use is planned and regulated in Massachusetts. “Smart growth” activists and environmentalists seeking to slow the loss of open space to development—currently about 40 acres per day—blame antiquated zoning land use laws for encouraging sprawl. Affordable housing advocates believe that state and some local land use laws induce a pattern of excessive land consumption that drives up the price of land and housing. Municipal officials assert that the state’s rigid restrictive zoning laws statutes prevent them from effectively planning their communities’ future. And developers claim that communities just don’t want growth. No one seems content with the existing Massachusetts system. The proposed Community Planning Act (House Bill 175), currently before the legislature, provides the opportunity to remove many state-imposed obstacles to effective planning and land use regulation.

People from across the political spectrum want new land use laws that encourage increased compact development where infrastructure already exists to accommodate it. This “smart growth” approach could produce more affordable housing in designated growth centers while taking the pressure off development on open land.

Yet it seems impossible to accomplish these goals because the existing Massachusetts land use planning and regulatory system is inadvertently set up to fall short. Cities and towns may have the responsibility for land use control, but state statutes deprive them of sufficient authority to carry it out. Harvard Professors David J. Barron and Gerald E. Frug’s study “Dispelling the Myth of Home Rule” (2004) found that “Massachusetts affords its towns and cities less control over land use than many people think.”

The state’s constraints on “home rule” often produce unplanned and unpopular development projects. For example, land use loopholes such as excessive “grandfathering” rights stymie the updating of local master plans and land use rules. A property owner can “freeze” existing zoning for eight years just by submitting a preliminary subdivision plan for development under the existing zoning code, without any intention of ever building according to that subdivision plan. Massachusetts “Approval Not Required” subdivision law (no other state has a provision like it) allows developers to subdivide and develop land along any road, sometimes including one-lane dirt roads, without local review. State laws make it difficult for communities to modernize their zoning by requiring a 2/3 super-majority vote of either the town meeting or city council. Because of these restrictions on a community’s capacity to regulate land use, every party can become dissatisfied with the planning process and the development it produces.

The Community Planning Act is nicknamed “CPA-II,” as a sequel to the highly successful Community “Preservation” Act, which has given municipalities the capacity to set aside local funds and obtain state matching funds for protecting open space, building affordable housing, and preserving historic structures. Yet despite this innovative financing tool, communities still lack substantive control over development and land use decisions, which the new Community Planning Act would help remedy.

The Community Planning Act imposes sensible limits on grandfathering, ends state-mandated Approval Not Required subdivisions, permits municipalities to assess reasonable and predictable impact fees on new development, provides the option to communities of adopting zoning by a simple majority, and requires communities to bring local land use regulations into line with their master plans. CPA-II also increases flexibility in granting local zoning variances and approving special permits, and strengthens measures to facilitate affordable housing, including allowing communities to require that a certain percentage of homes in residential subdivisions meet affordability guidelines. These provisions would allow municipalities to create land use patterns that encourage affordable housing and economic development, while preserving valuable open space.

The Community Planning Act has 56 legislative sponsors (a full quarter of the entire legislature) and the support of many organizations, including the Massachusetts Municipal Association, Massachusetts Chapter—American Planning Association, Massachusetts Association of Planning Directors, Massachusetts Federation of Planning & Appeals Boards, Massachusetts Audubon Society, The Nature Conservancy, and many municipal boards and officials.

As pressure grows to increase the region’s affordable housing stock, communities seek to change local zoning to allow more compact housing development. The state’s financial incentives for compact affordable housing recently provided by the Chapter 40R and 40S programs are valuable initiatives. Municipalities are much more likely to rezone areas for denser development on their own if they have more effective planning tools and can check unwanted sprawl. The most successful way to develop affordable housing, preserve open space, and create more attractive neighborhoods is to maintain local controls while providing more incentives for intelligent growth choices. Adopting the Community Planning Act is the way to do that.