Susan Gittelman
As housing developers, we dive deeply into regulatory matters and best practice measures to ensure that the housing we create is not only of the highest quality for residents but also addresses energy, climate and other environmental concerns. Unfortunately, we are now confronted with a situation that puts these goals at risk.
The Massachusetts Department of Environmental Protection has recently proposed updates to stormwater, flooding and wetlands regulations which, unless amended, will suppress much-needed housing development without providing additional protection against the impacts of climate change.
Until 1996, there was very little guidance regarding stormwater management in the commonwealth, leaving it up to individual municipalities to address. That year, MassDEP published its 816-page Stormwater Handbook, which didn’t have the force of regulation but provided communities and developers with well-researched, reliable guidance. MassDEP’s current proposal would turn that guidance into regulation, but without the flexibility that has made the handbook so successful.
The proposed regulations would require the use of environmentally sensitive site design unless it’s impracticable. Using natural solutions like trees and buffer zones instead of traditional infrastructure is often a good thing, but the regulations define “impracticable” based solely on physical constraints, ignoring critical factors like cost, logistics, available technology and overall project goals.
Unintended Consequences
As an example, the proposed regulations would require that impervious cover make up no more than 15 percent of the base lot area. In comments that Hancock Assoc. provided to MassDEP about the regulations, Hancock’s Director of Engineering Joseph D. Peznola wrote that in the firm’s 45 years of providing engineering design services for the development community, virtually every high-density residential development it has worked on exceeded 15 percent impervious cover.
The proposed regulations would also eliminate needed flexibility to make sound decisions for individual projects, including allowing municipalities to meet Chapter 40B requirements, by removing the ability of local conservation commissions to waive environmental rules that don’t make sense for a particular project.
“Resiliency is a huge issue, but we can be sensitive to both the environment and engineering,” said Clark Ziegler, executive director of the Massachusetts Housing Partnership and a member of Gov. Healey’s Unlocking Housing Production Commission. “Some sites are not suitable for housing development, but on many others you can build housing in a way that protects and enhances resiliency.”
The regulations would not only limit potential housing sites, but also make more projects infeasible by raising costs. In her comments to MassDEP, Tamara Small, CEO of NAIOP Massachusetts, the commercial real estate development association, wrote that “the proposed stormwater requirements will significantly increase design and construction costs, which could result in projects not moving forward.” She went on to write that the requirements would require “unnecessarily complex, expensive project designs.”
Real-Life Examples Show Harm
Massachusetts can ill afford to make it more expensive to build housing. The cost of constructing a typical starter home in the commonwealth is already second-highest in the nation, 22 percent above the national average. Nationally, the cost of construction materials was 43 percent higher at the start of this year than just before the pandemic.
In its comments to DEP, Hancock Assoc. brought home the real-world effect of the regulations as proposed by describing how they would have impacted four permitted developments which are now built. In one, none of the housing units could have been permitted, a second would not have been financially feasible and two others would have lost at least 30 percent of their units.
For example, at the Princeton at North Wilmington Station project in Wilmington none of the 108 units would have been approved under the new regulations because it exceeded the 15 percent impervious area limit as the site contains urban fill and it would have run afoul of various setback regulations, among other problems.
The commonwealth’s proposed stormwater, flooding and wetlands regulations are well-intended. Resiliency is critical in an era of climate change and the regulations include welcome changes such as incorporating new data to reflect increased rainfall totals. But rigid and in some cases overengineered solutions would not make projects more resilient.
For municipalities wanting to create new housing, existing guidance under the Stormwater Handbook allows them to apply tailored solutions. But for those communities that are most comfortable suppressing housing production, the unintended, real-world impact of the updated regulations as written would be NIMBYism under the guise of environmental policy.
If we are serious about creating housing, every agency must apply the lens of housing production impact along with other quality of life variables in considering regulatory and policy changes. There is still time for MassDEP to do just that.
Susan Gittelman is executive director of B’nai B’rith Housing, a nonprofit affordable housing developer working in Boston, MetroWest and the North Shore.
