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BRPC Executive Director Nathaniel Karns outlined the concerns raised after months of review with the Regional Issues Committee.

BRPC Weighs in on State's Plan to Overhaul Land Use Regs

By Andy McKeeveriBerkshires Staff
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PITTSFIELD, Mass. — BRPC supports the state's push to overhaul land use regulations. But, the specifics in the bills from the House and Senate have raised some concern.
For months, Berkshire Regional Planning Commission's regional issues committee has been pouring over the details of the massive omnibus bills. Two bills are going through the legislative process now — one from the House and one from the Senate — with similar changes to zoning and other land use regulations.
"This topic of land use legislation in Massachusetts, this very antiquated state, has been a legislative topic for almost as long as I've been here," Executive Director Nathaniel Karns said Thursday. "But there seems to be renewed effort in both the House and the Senate to take these up."
The bills are at least 50 pages each and delve into detailed requirements. The planning commission is sending letters to lawmakers outlining its objections to various aspects, and support for others. 
One particular objection is in the Senate bill, but not in the House, which calls for a certification program for municipalities. Should towns adopt certain zoning or other land use regulations, those communities would have an advantage for competitive state grants. Karns said with many of the small, rural Berkshire towns, they simply don't have the manpower and resources to overhaul their zoning. 
"It is going to be very affluent communities in the eastern part of the state," Karns said of who would ultimately benefit from a certification process.
Sheffield's BRPC representative Rene Wood likened it to an "unfunded mandate" and voiced her objection to the provision. Williamstown representative Roger Bolton echoed the sentiment.
"These sound to me like unfunded mandates, including the certification because if you don't do that, then you are disadvantaged," Wood said.
BRPC cited 22 specific areas in the bills that could be improved, or supported as is, to help Berkshire County. The issues range significantly from housing to appeals to master planning. 
"These bills are being considered in two different committees. When they are still in committee we really need to address letters to the committee chair they are in front of," Karns said.
One such provision is a rule that makes it so homes in single-family zoning districts are allowed to build secondary units without a special permit. BRPC would like towns to have the ability to require that at least the dwelling be owner-occupied, to set limits on the percentage of those units in town, and to exempt towns that already have at least 5 percent multi-family units. 
That provision isn't expected to impact much of the Berkshires because of a secondary provision in it that if home values are declining in a town, that community is exempt. Karns said only three towns in Berkshire County have shown rising home values in the last five years.
A similar provision is an automatic approval for the construction of multi-family residences by right. BRPC is looking to add language that allows communities to set "reasonable site requirements while not allowing them to prohibit multi-family development." 
"Both bills give a provision that a community that doesn't have water or sewer, or is rural, may apply for a waiver," Karns said, adding that just about all of Berkshire County falls under the definition of rural. 
BRPC would like a clause that towns with less than 250 people per square mile don't have to even go through the process of applying for a waiver, and just be given one automatically.
The group also raised a question about grandfathering clauses. The bills would make it so that when a community publishes its decision to move forward with a zoning law, that's when new projects are no longer grandfathered. 

Karns said right now, "once the publication of the zoning change has been made, whoever wants to get whatever they want done under the old provisions, rushes in with an application." The organization supports making that process cleaner. However, it raises questions about what happens if the proposed zoning change fails. 
"Especially given the length of time that a zoning amendment takes to be approved from public notice to final legislative vote, this could be a considerable delay for the project proponent," Karns wrote in the letter to lawmakers. "We suggest that a reasonable approach may be to provide a reasonably limited amount of time for the zoning amendment to receive legislative consideration or otherwise the proposed project proceeds under the zoning in existence when the permit was applied for."
The organization also supports language changes to the site plan review authority, which reviews proposed projects. However, the new law limits the impacts those boards can review to 300 feet, which BRPC feels is too small given questions about noise and lighting. 
For neighbors who want to appeal a zoning rule, the proposed law calls for a $15,000 cash bond. Karns said that is a burden for any group of neighbors opposing development in their area if it is low income.
"If you are in a relatively low-income area and you want to appeal the decision of the zoning board, coming up with a $15,000 cash bond ... might be pretty darn hard," Karns said. "There is an environmental justice issue here over that kind of thing."
As for master plans, Karns said the proposed law has "wholesale changes in the language" which he fears will "lead to fewer communities even trying to develop these important documents." The requirements have a mix of mandatory and voluntary items, complicating the process for what tends to be volunteer planning boards. Some of the voluntary aspects Karns feels should be mandatory, such as transportation planning.
BRPC opposes a change that allows those who feel they were victims of discriminatory land use practices be able to appeal to the Massachusetts Commission Against Discrimination. Karn said while BRPC certainly doesn't support discriminatory land use practices, MCAD isn't the right place to handle that.
"The MCAD is very problematic. The process they use and the backlog of cases means that if a community ended up being found to have discriminated, it will take 8-10 years to make that finding and in the meantime, whatever the penalty was that was assessed would have incurred interest the entire period of time," Karns said. "[The provision] is one of the little sections that is buried in here but once you get in the meat of it, it can be very problematic for communities."
BRPC's five-page letter also picks apart at some other changes to zoning laws and will be sent to numerous legislators and other stakeholders such as the Massachusetts Municipal Association. It also cited efforts it supports such as expanding Smart Growth or form-based zoning and loosening standards for granting variances.
While BRPC does ultimately support the lawmaker's efforts, it also hopes the state will provide funding to towns to implement it. 
"Many of the new zoning and master plan requirements will take considerable resources to accomplish the needed changes to local zoning bylaws and ordinances and to bring master plans into compliance with the much more rigorous stipulations contained in this bill," Karns wrote. 
"Even communities with a planner (which is only five of 32 Berkshire municipalities) the major changes required will overwhelm their existing resources. Many of our communities are at or close to their levy ceilings and do not have the funding necessary to accomplish this without taking away from other very pressing needs."

Tags: BRPC,   land use,   legislation,   master planning,   zoning,   

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