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In order to create a sustainable future for the region, municipalities need more than good plans—they need a well-stocked toolkit of land use controls.  These controls should provide the instruments necessary to promote development in smart growth locations, to discourage growth in areas designated for preservation, to protect private property rights, to streamline permits for proposals consistent with land use plans, and to manage the rate of growth for a specific development or an entire municipality.  

Unfortunately, cities and towns now have few tools to accomplish these goals.  While local authorities retain most responsibility for regulating development, the zoning enabling act and other state laws contain unclear or restrictive provisions that effectively deprive municipalities of authority consistent with their responsibilities.  Efforts to focus growth or protect natural areas are impeded by a complex tangle of exemptions, prohibitions and zoning freezes.  Meanwhile, best practices common in other states are not expressly permitted here or are significantly underutilized.  

With only a limited ability to make and enforce local plans, cities and towns often resort to “end runs” around the law, using restrictions unrelated to good planning to establish control over the development process.  Lengthy and opaque special permit procedures or unduly harsh water requirements can be instituted to prevent the occasional bad development, while in reality they make all growth difficult and costly.  Projects that eventually come to pass may still fail to further local goals.

7)    Modernize the Zoning Enabling Act and Subdivision Control Law
Legislative reform is necessary to eliminate antiquated provisions in the zoning code which impede municipal efforts to implement sustainable land use plans.  

The Massachusetts zoning enabling act is nationally regarded as antiquated; it was listed by the American Planning Association as among the weakest and most outdated land use frameworks nationwide.  Certain subdivisions of land require no local review or approval; excessive “grandfathering” provisions frustrate attempts to modify zoning; and municipalities are prohibited from regulating “teardowns” or establishing very low-density zoning districts.

Numerous zoning reform proposals have been recommended in recent years.  Four specific reforms are identified here, but other zoning reform concepts are addressed in other sections of this strategy or elsewhere in the implementation plan.  Either these reforms should be applied statewide, or they should be made available to municipalities that adopt smart growth plans and practices.   

7.a    The Legislature and Governor should eliminate the “Approval not Required” process

7.b    The Legislature and Governor should reform grandfathering provisions to apply to development proposals only, for a period of three years

7.c    The Legislature and Governor should explicitly permit low-density zoning in designated resource protection areas

7.d    The Legislature and Governor should eliminate the current prohibition on regulation of the maximum interior floor area of residential structures

8)    Adopt best practices for permit streamlining
Productive relationships between municipalities and the development community foster compact growth.  Municipalities should adopt best practices that can make permitting more predictable, equitable, cost effective, and efficient.  

Inefficient permitting and approval processes can discourage compact growth.  Developers who face a long, costly, and uncertain permitting process are likely to shift their resources and efforts to other locations, regions, or states.  This is especially problematic if inefficient permitting in appropriate locations causes developers to choose alternate locations that are inconsistent with the MetroFuture land use plan.  Even in municipalities with relatively efficient permitting, special permit requirements for many developments may add to uncertainty and discourage developers from pursing good projects.  

Application of streamlined permitting processes does not require municipalities to lower their standards or feel pressured to approve bad proposals. Applied appropriately, permit streamlining best practices should reinforce local jurisdiction, encourage community supported projects, preserve local resources, and maintain the standard of review.  

Municipalities should also establish an intermediate “as of plan” review that is somewhere between current practice for special permits and as-of-right development.  Such a review might be appropriate in designated growth areas and could include design review, inclusionary zoning, and a limited public review process.  It would not, however, include review of plan elements that conform to the requirements of an approved plan; for example, parking requirements, setbacks, or heights would not be subject to special review if they conform to the criteria established in the plan. 

8.a    Municipalities should adopt the permitting recommendations outlined in the “Best Practices Guide for Streamlined Local Permitting”

8.b    MAPC should develop a framework for a streamlined “as of plan” review within the special permit process

9)    Establish local and regional Transfer of Development Rights programs
One method of preserving open space while increasing density in designated areas is through Transfer of Development Rights (TDR).  As the name implies, TDR involves shifting the development rights from one property to another piece of property in a designated area.  The result is a (usually neutral) increase in the allowable density of development in the receiving area and a reduction of density in the sending area.

TDR distributes the burden of land use regulations more evenly than straight zoning or legislation.  Landowners in the sending area share in the financial gains of development by selling their development rights to willing buyers. In this way, the benefit in the receiving area can be distributed among all affected landowners, including those in the sending area.  TDR has the advantage of allowing the market to generate individual transactions while serving the overall policy goal of shifting and concentrating development.

TDR programs generally operate under one of two models: 1) the municipality administers the program and sellers and buyers deal with each other directly; or 2) a development credit bank administers the program and buys and sells credits. The credit bank can be run by the municipality, a regional entity, the state, or a nonprofit organization.

TDR is fairly complex to operate because it requires a large amount of oversight. Even if a credit bank is involved, the local government must still make many administrative decisions, such as defining sending and receiving areas, tracking transfers and development, and defining the process for taxation and other legal issues.  A regional TDR Bank managed by MAPC, or a statewide bank managed by the Massachusetts Association of Regional Planning Agencies (MARPA), would reduce the administrative burden on individual municipalities and would streamline the process of buying and selling rights.

The Commonwealth should encourage Transfer of Development Rights (TDR) through legislation to promote TDR and funding to support technical assistance and establishment of TDR “banks.”  MAPC should initially concentrate on establishing working TDR programs within as many communities as possible, and then work on inter-municipal transfer of development rights.

9.a    MAPC should develop a pilot program with individual municipalities to establish formal Transfer of Development Rights programs

9.b    MAPC should collaborate with state environmental and housing agencies to develop a framework for regional Transfer of Development rights

10)    Use phased development and rate-of-development controls to manage growth
Phased growth controls should be coordinated with a municipality’s ability to provide services to the new development such as sewers, water, public safety, schools or transportation. Rate-of-development programs limit the number of building permits issued in a municipality each year.  These programs, when combined with bonuses for building in smart growth locations and building affordable housing, can be another tool to help municipalities direct growth where they would like it.  For example, a community that allows 10% of the lots in a development to be permitted in a given year under the conventional rate-of-growth bylaw could allow more permits each year to developers who provide cluster plans.  If the developer allows public access to the open space in the cluster, they gain an additional bonus in lots released for sale per year.  Other public benefits, such as more affordable housing could also yield greater lot release per year.

A legislative change would allow municipalities to adopt rate-of-development restrictions consistent with local and regional growth targets.  One possible way of doing this would be to offer this tool only to municipalities that adopt smart growth plans and practices.  Affordable housing production should be exempt from rate-of-development restrictions, since the creation of affordable housing is a critical region-wide need.

11)    Formalize development agreements
Development agreements are contracts between municipalities and individual developers that spell out what the developer must do to develop a particular project.  These voluntary agreements can cover topics as diverse as what kind of uses will occur on the land in question, the timeframe for the development, how many units will go on the property and the maximum size of the proposed buildings, and what kind of access to public facilities and services will be available to the development.  They can increase the chance of favorable outcomes for both parties involved by making the development process more predictable, as well as ensuring that the restrictions and the benefits are tailored to the circumstances of a particular project.  

In Massachusetts, municipalities currently can enter into development agreements, especially around zoning changes that enable specific types of development to occur.  However, development agreements are not formally structured to either preclude extraneous and time consuming negotiations, or to reinforce state and regional goals.  A legislative change would be necessary to clarify municipalities’ power to enter into development agreements with the private sector, as well as to align the development agreements with broader goals. 

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