Housing bills weighed down by complexity, disagreement

Benjamin Fierro, representing the Homebuilders and Remodelers Association of Massachusetts, and NAIOP senior vice president Tamara Small (right) testified at Tuesday's Municipalities and Regional Government Committee hearing where they were among those opposed to an omnibus zoning reform bill. [Photo: Sam Doran/SHNS]

STATE HOUSE, BOSTON, MAY 2, 2017…..A turf war about the future of Massachusetts real estate development played out in a committee hearing Tuesday where proponents of a zoning overhaul acknowledged that its complexity has hindered it from gaining traction in the Legislature.

“Zoning is a mind-numbing, complex subject. I think quite honestly that’s one of the reasons why it’s never come to the floor for a vote,” Rep. Sarah Peake, a member of House leadership, told the News Service after testifying on an omnibus bill she supports. “So I’m open to looking at this in pieces. I’m open to looking at it in its entirety.”

Peake told the Committee on Municipalities and Regional Government the notion of zoning reform doesn’t spur “chanting and singing” on Boston Common, but she said it is important and would help address the area’s high housing costs.

The nuts and bolts of zoning and construction permitting take place at the local level but the state sets out the framework, and Peake’s proposal would sap some of the control over development from local planning and zoning boards.

Peake said the omnibus legislation (H 2420) she filed would create “consistency statewide” and make Massachusetts zoning law more similar to the laws in California and New York.

While “smart growth” advocates backed the bill – which would encourage dense housing development coupled with the preservation of open space – realtors, commercial developers and municipal officials opposed it.

The bill filed by Peake and House Ways and Means Vice Chairman Stephen Kulik has several similarities with the zoning reform bill the Senate passed on a 23-15 vote almost a year ago. That bill, like many other major public policy proposals, died after House and Senate leaders could not come to a consensus.

The Senate bill would have mandated municipalities to create districts where dense housing is allowed, while the Peake-Kulik bill directs municipalities to create “reasonable and realistic opportunities” for multifamily housing.

Both bills prohibit municipalities from engaging in “discriminatory land use” such as measures to exclude housing for families or low-income people. The bill (S 81) that passed the Senate last year was filed again this year and referred to the Committee on Community Development and Small Businesses.

Marc Draisen, executive director of the Metropolitan Area Planning Council, told the News Service some towns have put a moratorium on new housing development, and there are 200 municipalities that have not built any multifamily housing over the past decade.

Draisen said he “would like to see a contribution to housing production everywhere,” and said even smaller communities have a town center where a small apartment building could fit in. Municipalities where there is less housing demand would be able to receive a waiver of the requirements from the Department of Housing and Community Development under the legislation, Draisen said.

Estimating a need for 435,000 new housing units built in eastern Massachusetts over the three-decade period that began in 2010, Draisen said the rate of production has only briefly reached the pace required to reach that goal. Multifamily housing permits dropped by about 2,000 between 2015 and 2016, falling to 8,000 statewide, Draisen said.

“Effectively we have gated municipalities. Not gated communities, mind you – gated municipalities. And the gating is the zoning,” said Andrew DeFranza, executive director of Harborlight Community Partners, a Beverly-based housing provider for people with low and moderate incomes.

DeFranza said towns in his North Shore area favor single-unit housing on large lots.

Paul Yorkis, the president of the Massachusetts Association of Realtors and owner of Patriot Real Estate in Medway, said he supports legislation (H 1112) that is more “targeted” at removing barriers to housing production, such as allowing the construction of in-law apartments without the need for a special permit or zoning variance.

“It is not a comprehensive bill. We didn’t intend it to be a comprehensive bill. There have been comprehensive bills introduced I think for the past 15 years and the parties don’t seem to be able to reach agreement,” said Yorkis, who is treasurer of the Massachusetts Democratic Party.

The Massachusetts Municipal Association (MMA), the Home Builders Association of Massachusetts and NAIOP, representing commercial real estate developers – groups that don’t always see eye-to-eye on development matters – all oppose the legislation sponsored by Peake and Kulik.

NAIOP claimed the bill would limit developers’ ability to change their plans for a subdivision under certain circumstances, threatening their ability to finance projects. Peake said the bill only “restricts some of the tricks” developers employ to maintain their rights to build subdivisions.

“There is unanimous agreement within the real estate industry that H. 2420 would greatly hinder, not encourage, housing production – particularly the market-based entry-level housing we need for our young workforce,” Tamara Small, senior vice president of government affairs at NAIOP, wrote in testimony to the committee.

On the other hand, Andre Leroux, executive director of the Massachusetts Smart Growth Alliance, contended that Peake and Kulik’s “Great Neighborhoods Bill” would help young professionals and seniors to remain in their communities.

The Peake-Kulik legislation was co-sponsored by 62 lawmakers, mostly Democrats, representing rural, urban and suburban districts – from East Boston Rep. Adrian Madaro to North Adams Rep. Gailanne Cariddi.

NAIOP also objected to a provision of the bill that would give municipalities the ability to charge developer impact fees. In her testimony, Small argued that the legislation would not prohibit the imposition of “other burdensome and costly mitigation requirements” as a condition for project approval on top of the impact fees.

“That is not allowed under our language,” countered Draisen, who said the bill requires communities to either collect impact fees calculated to mitigate a development’s strain on local infrastructure, or alternatively to work out a separate agreement with the developer.

The MMA argued that by removing local conditions on multifamily developments, the bill would free up builders to focus on luxury units rather than affordable units. The association also warned that the prohibition on “discriminatory land use” could lead to “excessive litigation, at great expense to municipal governments and local taxpayers, regarding nearly any local zoning decision.”

Interest groups that lobbied against the omnibus bill don’t necessarily oppose every provision of it. The MMA supports the developer impact fees while opposing measures that would weaken local control.

“The bill is a balanced bill. It has some things for the real estate industry and some things for the municipalities,” Draisen said. “Both sides want everything. You can’t have everything.”

Copyright 2017 State House News Service