Mark H. Leff – ‘A specific problem’
A recent report featuring recommendations on how to eliminate barriers to housing construction will likely set the stage for a familiar battle – local vs. state control.
The report, written and endorsed by the 18-member Governor’s Special Commission on Barriers to Housing Development, was sent to Gov. Jane Swift this month.
It features recommendations that would make it easier for developers to get housing projects approved and tougher for communities to enact septic system, zoning and wetlands rules that are stricter than state standards.
Many of the recommendations were immediately heralded by homebuilders, developers and Realtors as common sense and long overdue. But community leaders and environmental groups fear that some of the recommendations would erode local control.
Among some of the report’s recommendations are:
* Enforcing uniform application of Title 5 septic system rules across the state. State regulators, namely the Department of Environmental Protection, should review and approve Title 5 septic system regulations that are stricter than state standards, and have the ability to throw out rules with no scientific or environmental reasons backing them up.
* Requiring communities to notify DEP and have scientific proof that they need stricter wetlands protection rules. DEP could then review and determine whether those rules are appropriate.
* Ensuring that towns and cities have a specific reason for passing building caps or moratoriums. Local leaders would have to contact the Department of Housing and Community Development to explain that their communities have a specific problem that could be helped by a moratorium and a deadline and plan to alleviate the problem.
* Setting fees that communities charge developers at fair rates that reflect the actual cost of services.
* Redistributing state aid to local communities that have created needed housing and can demonstrate burdens that arose because of growth.
* Streamlining and expediting the approval and appeals process for developers shoe. Several recommendations point to the need to make it harder for communities and other opponents to hold up housing projects on what some commission members call frivolous grounds.
‘Diverse Opinions’
The commission, headed by DHCD Director Jane Wallis Gumble and Billerica developer Gary Ruping, started meeting in April 2001, about three months after then-Gov. Paul Cellucci appointed the group. The group set up three subcommittees to look at building, zoning and Title 5 issues. Those subcommittees filed reports with recommendations and comments.
Many of the final report’s recommendations would require legislation, but some involve regulatory changes that could be adopted more quickly. Commission members acknowledge that implementing many of the report’s recommendations requires money for training and staff additions.
It’s not fair to suggest that we can implement all of the recommendations in the report given the fiscal constraints that we’re operating under right now, said Gumble, after the full commission endorsed the report on Jan. 3.
Gumble said there were no real surprises in the report, and that the commission tried to get input from many different groups. The commission, which included homebuilders, Realtors, DHCD staff and environmentalists, consulted with community town planners, land specialists and others.
But some, including the Massachusetts Municipal Association, are unhappy with a few of the results.
Some of these recommendations would erode local home rule and increase the developers’ power to override local wishes on development, said Patricia Mikes, spokeswoman for MMA.
We need to focus on affordable housing, not just give developers freer reign, she said.
Commission members, on the other hand, argue that the recommendations aren’t about giving developers free reign. Eliminating some of the hoops that developers have to jump through and shortening the costly and lengthy approval and appeals process for housing projects would spur construction of less expensive housing, they contend.
They also said that some of the local rules have no scientific basis and are driven by political agendas.
Right now … each town can adopt their own rules, so what you have is a [situation] where local volunteers, who may have a different agenda, are setting housing policy and land-use policy, said Mark H. Leff, a commission member and lender at Salem Five Cents Savings Bank.
According to commission members, one of the recommendations that could be implemented quickly has to do with septic system rules.
Homebuilders and Realtors have long argued that some communities are using stricter septic system rules to block housing construction.
Some 125 communities have passed tougher Title 5 rules. These rules – passed with no health or environmental reasons to support them, according to several commission members – make it harder and more expensive for developers to construct housing.
According to the commission report, one barrier to housing construction could be eliminated by easing a test threshold used for septic systems. A percolation, or perk, test determines the capability of soil to absorb liquid.
Forty-eight states have a 60-minute perk test, meaning that an inch of liquid must be absorbed within 60 minutes for land to be deemed acceptable for a septic system. But in Massachusetts and Maryland, the same quantity of liquid must be absorbed in 30 minutes.
Having a 60-minute perk rate, which is from a public health standpoint [and] engineering standpoint perfectly legitimate and safe … will open up land that would otherwise not be available for homes, said David Wluka, a land planner and vice president of government affairs for the Massachusetts Association of Realtors. Wluka, who owns Wluka Real Estate in Sharon, served on the zoning subcommittee.
Stephen Ryan, a commission member and MAR’s legal counsel, said local officials – including zoning boards and conservation commissions – must be educated and trained to understand Title 5. The report makes that clear, he said.
Title 5 is a health code. It falls under the state sanitary code. It is not a zoning tool. It is not to be used as such, said Ryan.
Another critical issue addressed in the report is alternative technologies for septic systems, said Ryan. According to the report, communities should be encouraged to use alternative technologies for septic systems, including mounded and shared systems that use up less land.
All we’re saying is that if individual communities want to have septic rules over and above the state’s Title 5, that they need to establish scientifically that they’re necessary. That’s only giving the property owner, quite frankly, a fair shake, said Ryan.
At the same time, the commission recognized that local communities face burdens from development, said Wluka. Because of that, the commission recommended that aid for schools and roads be reconstituted to help those communities that have not raised barriers to construction.
Commission members said that another big barrier to housing development is the building caps passed by towns and cities to slow growth.
At least 60 communities in the Bay State have adopted growth-control measures, with several more proposed. That is part of the reason the state is facing a housing crunch, commissioners maintain.
The number of single-family building permits that Massachusetts has issued has dropped continually since 1998. During the first 11 months of 2001, the Bay State issued 12,021 permits – an 18.6 percent drop than the same period in 1998, according to information that Leff gathered from the U.S. Census Bureau Web site.
In comparison, other New England states issued only about 3.3 percent fewer permits.
What this report says is, if you’re going to put a moratorium on growth you have to have a specific problem, you have to have a duration in which you fix the problem and you have to have a plan for fixing the problem, said Leff. That plan has to be approved by DHCD, so no longer can you just say, ‘We don’t want growth.’ There’s got to be a reason for it.
