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To help towns combat sprawl, rewrite of state zoning law is overdue

Posted by Alan Wirzbicki  May 24, 2011 01:00 AM

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Of all the goings-on at the State House last week, the hearing on Senate Bill 1019 was probably the least likely to be attended, covered, or acknowledged in any way. Yet the Comprehensive Land Use Reform and Partnership Act — which goes by the unfortunate and vaguely disease-conjuring acronym CLURPA — is critically important to how we live in Massachusetts, the landscape that surrounds us, and the future state of the environment, community, and society.

The proposal is to overhaul Chapter 40-A, the zoning enabling statute, which is essentially the set of rules that dictate how and what gets built on land in the Commonwealth. Every state has a state law like this, but ours is infamous for being particularly Byzantine and outdated. There are some nooks and crannies of Chapter 40-A that not even the land use attorneys or judges understand. Within all the confusion, though, there are provisions that can only be described as pro-builder and, indeed, sprawl-enabling.

There is, for example, something called "approval not required," a rule that says as long as a proposed subdivision is along an established road, the project doesn't need to go before the local planning board. It's not that the rules are lax. It's that there are no rules. Builders don't have to come before local government at all.

Then, there are also liberal grandfathering and zoning freeze provisions that allow builders to short-circuit any attempt by cities and towns to make changes in local zoning to encourage, for example, smart growth or the preservation of open space. Towns can try to tighten their rules, but under Chapter 40-A developers who don't like any new provisions can simply file plans at town hall that comply with older zoning — and get a generous 8 years from that point to actually build anything. A property owner did exactly that in Northhampton, for an adult entertainment store, upon learning that town officials hoped to change the zoning. In Rutland, town planners sought to encourage dense development in the town center by only allowing connections there to water and sewer. But a large central Massachusetts homebuilder simply filed plans and moved ahead with a dense subdivision out on the periphery, taking advantage of the existing rules. Given this end-run, many other towns don't bother trying to make any changes at all.

Under 40-A, planning and zoning are not linked. Master plans established by towns to manage growth have no legal standing. Zoning variances that make sense for certain projects are not legally allowed. A supermajority is required for zoning changes by all 351 cities and towns in Massachusetts. Effectively, we’re stuck in the 1950s. Despite programs to encourage sustainable development, like Chapter 40-R, we are anything but progressive when it comes to land use law.

This isn't the first time reformers have tried to overhaul Chapter 40-A. But the half-dozen attempts of recent years have been beaten back by special interests with lobbying muscle. Those in opposition include the Home Builders Association of Massachusetts, Greater Boston Real Estate Board, and the National Association of Office and Industrial Properties. What usually happens is, the bill dies a quiet death in committee. This time, advocates say there's an economic argument for clarity in the rules of the development game. It's just a matter of keeping up, says attorney Joel Russell, who testified at the May 18 subcommittee hearing.

"Nearly every state that has seen significant economic growth over the past 30 years has overhauled its planning and zoning legislation… We are losing the race for economic development for many reasons, but among the foremost is our antiquated, arcane and incomprehensible body of land use law," he said in his prepared testimony.

CLURPA, its advocates say, is logically organized and written in understandable English, and will put an end to the lawsuits that occur simply because Chapter 40-A is written in a way that invites litigation. They also say that individual communities, hands now tied by an anachronistic statute, will be able to control their own destinies. It would be a kind of liberation. Maybe, in the current political climate, the power of self-determination will finally prevail.

Anthony Flint is a fellow at the Lincoln Institute of Land Policy, a think tank in Cambridge.

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ABOUT THE ANGLE Online commentary and news analysis from the Boston Globe. The Angle is produced by Rob Anderson and Alan Wirzbicki. You can follow Rob on Twitter at @rcand.

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