Jonathan Berk
A shuttered auto repair shop and a cracked surface parking lot in downtown Salem. An old single-story retail building in the heart of Melrose’s commercial center. A rapidly aging North Shore suburb’s nearly eight-year attempt to build its first senior assisted living facility.
The commonwealth’s housing goals, and the economic health of our main streets and downtowns, demand more than just permissive zoning. They demand a predictable, reliable permitting process that finds a path to yes, instead of every way possible to say no. Or what is sometimes even worse than a no: a “maybe” that lasts for months or years, racking up endless bills, substantial holding costs, and chills the prospect of future housing development.
My new report for Boston Indicators at The Boston Foundation, examines the permitting paths of six recent middle-housing projects, from “low friction” processes in Lexington and Arlington to the more cautionary tales in Marblehead and Salem.
Zoning Said Yes. The Process Said Maybe
Even communities with permissive zoning can use the discretionary review process to place roadblocks, intended or not, in front of the homes Massachusetts needs.
Take 38 Norman St. in Salem. A developer proposed 20 homes and ground-floor retail on a vacant downtown corner, in the city’s most permissive zoning district, where rules allow six stories. Aside from being five parking spaces short of requirements, it was an entirely as-of-right project.
But a six-unit threshold in Salem’s zoning code triggered full site plan review. After early conversations and an understanding of potential opposition, the developer cut the building to four stories before filing, giving up roughly a dozen homes in hopes of avoiding a fight.
A year of lengthy but largely constructive review by multiple city boards followed. Despite acquiescing to abutter concerns, a neighbors lawsuit tied the project up in litigation for a full year, ultimately settling and agreeing to cover the neighbors legal fees for their trouble.
The damage had already been done. Two years after its initial filing, interest rates had climbed and construction costs soared from $7 million to nearly $10 million and the site sits vacant to this day.
What Predictable Process Looks Like
The cost of a difficult permitting process isn’t just the time it takes. It’s the uncertainty, risk and expense that accumulate along the way.
Every additional hearing, redesign, peer review, appeal or delay adds carrying costs, complicates financing and makes it harder to know whether a project will ultimately be viable. For smaller builders especially, months or years of uncertainty can turn a project that works on paper into one that no longer pencils.
My report also illustrates what happens when the permitting system works. Lexington went above and beyond in its initial MBTA Communities Act compliance, creating zoning intended to build housing – unlike some towns utilizing a “paper compliance” model.
Its clear standards, coordinated pre-filing meetings and concurrent board reviews moved numerous projects, including 25 apartments on Bedford Street, forward efficiently. Town leaders recognized the need for external engineering capacity early on in the process, working with applicants to provide an efficient peer review prior to application at planning board.
Permissive zoning is not the same as permission to build. Predictable zoning rules paired with a disciplined, predictable permitting process is.
A Path to Yes
My report offers 18 recommendations to create a more predictable permitting path for housing in Massachusetts. Several are within reach of any municipality today.
First, raise local thresholds that push compliant projects into discretionary review, or scale review to project size, as a number of communities have worked towards. Some reviews can and should be conducted by staff only.
Municipalities should also adopt reasonable, objective design standards so boards apply rules instead of taste.
The number and duration of applicant-funded peer reviews should also be capped, and towns and cities should, where possible, run board reviews concurrently.
Communities must also ensure adequate training of zoning and planning board members, particularly as variance standards and site plan review criteria evolve.
Lastly, communities should lower approval thresholds for more categories of land-use decisions to simple majority from its current supermajority.
The commonwealth also has work to do.
The Legislature can set guardrails on site plan review this session by adopting the provisions of the Healey-Driscoll administration’s Mass Wins Act (pulled from legislation originally filed by Rep. Kristin Kasner), require historic commissions and other reviewing bodies to weigh housing needs, create an administrative appeal path for applicants who feel aggrieved by local conditions added to project approvals, further reform abutter appeals, develop statewide permit tracking software and create – and fully fund – a program to audit and help municipalities reform local permitting processes.
As we make progress on zoning reform, we also need to ensure we have a permitting system in place capable of delivering the housing those efforts unlock.
Jonathan Berk is the founder of the real estate and placemaking consultancy re:MAIN, a Salem resident and the board chair of Abundant Housing Massachusetts.
