The Art of The Growth Ordinance

I think one of the most important debates going on right now in Massachusetts is affordable housing or lack thereof. One of the more dramatic effects of sky-high housing costs here has been the explosion of flatlanders building homes in New Hampshire. Small towns are seeing double digit percentage increases in population with out the infrastructure to deal with the added burdens. Some towns enact inaccurately named growth ordinances to contain the damage. NIMBY's and open space advocates love them, but according to developers, "they set barriers that artificially drive up the cost of housing, making it unaffordable for low- and moderate-income families." Much the same could be said about Boston's leafy suburbs. Reprinted below is the Concord Monitor article. Watch for my follow up on Massachusetts Chapter 40B, the "Anti-Snob Zoning Ordinance."

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http://www.cmonitor.com/stories/news/local2003/new_pemb_growth_2003.shtml

Invoking the 'art' of the growth ordinance

Board expected to vote on development measure

By ERIC MOSKOWITZ
Monitor staff

Pembroke

PEMBROKE - The planning board is expected to vote tonight on a growth management ordinance that would take effect immediately, placing limits on permits for new homes. Among other measures, it would limit an individual developer to a maximum of five permits per year.

The ordinance comes at a critical time for this town of less than 7,000 residents, where development proposals have intensified in the past year. In the region's second most densely developed community (trailing only Concord), the planning board has already approved 88 new lots and condominium units this year. And several large projects have been proposed but have yet to be accepted for formal review, including one near Route 3 that would bring 120 single-family homes and 48 condominiums.

When that developer, DHB Inc., was told last month that its application was incomplete, a company attorney warned the board against denying the application merely to buy time for approval of a growth ordinance - the restrictions of which would likely make such a project economically infeasible.

The developer subsequently hinted at a lawsuit but has yet to bring legal action against the town. If it does, it won't be the first time the legality of a town's growth ordinance has been questioned.

Communities across the state have been enacting similar ordinances since the 1970s. At last count, 33 cities and towns had either full ordinances or interim restrictions, said Chris Northrop of the state's Office of Energy and Planning. And ordinance-related lawsuits have sprung up every few years since the state Supreme Court's 1978 ruling in Beck v. Raymond. The "famous language" in that ruling laid the groundwork for the ensuing statute on growth management, said Sumner Kalman, a Plaistow lawyer currently involved in one of the state's highest-profile ordinance challenges.

"It said that a town cannot create a moat around itself and not allow growth, but on the other hand it is able to control growth," Kalman said.

There is no "hard and fast formula" dictating when a city or town can legally implement an ordinance, said Northrop. Rather, he said, "there's an art here."

Such ordinances are not meant to be permanent. They provide breathing room for a community while it develops sufficient services - such as building classrooms or adding police cruisers - to meet the needs of reasonable growth. The key is to have an ordinance based on scientific evidence, Northrop said. That needs to be coupled with a valid master plan and a capital improvement program outlining the services a community will add in the coming years to meet growth needs.

Some developers, like Allan Clark of Manchester's REI Development Co., believe that all growth ordinances should be illegal. "Contrary to the vision of the state," they set barriers that artificially drive up the cost of housing, making it unaffordable for low- and moderate-income families, he said. Last month, he received planning-board approval in Pembroke to develop Chickering Meadows off Dearborn Road. But had the ordinance been in place already, Clark said, he never would have considered buying the 49 acres that will become the site of 72 townhouses and six single-family homes.

With a limit of five units per year, "it just wouldn't work," Clark said. He predicted that developers, backed by the New Hampshire Home Builders Association, would challenge such ordinances in greater numbers soon.

If approved tonight, the ordinance would take effect immediately. In addition to limiting permits to individual developers, it would cap the total issued annually to 2 percent of the town's dwellings at the end of the previous year. There are currently 2,867 dwelling units in Pembroke.

If ratified at town meeting in March, the growth ordinance would hold for four more years. During that time, the board would review the ordinance annually, reconsidering it in light of capital improvements and development trends.

Clark's project, though not yet built, has grandfathered protection from the ordinance. But projects that have yet to be accepted or approved, like DHB's, would be subject to the restrictions.

The ordinance would likely foil a pair of affordable housing projects from CATCH, the nonprofit Concord Area Trust for Community Housing. Plans have already been drawn up for a 48-unit development on Beacon Hill Road, Executive Director Amy Lockwood said. That project would be phased over two years, to comply with an existing Pembroke ordinance limiting multifamily construction to 25 units per year, Lockwood said. But if it needed to be built over 10 years the project would have to be abandoned. The same would be true for future CATCH plans to lead a rehabilitation of housing in downtown Suncook, Lockwood said.

Still, she said she found growth ordinances to be "perfectly understandable" as temporary solutions to "extreme growth." But she hoped that Pembroke might consider a measure that would exempt nonprofit developers, as Bow has done.

The Pembroke Planning Board has spent two years working on the master plan. Last year, the board voted against creating interim growth restrictions so that a proper ordinance could be drafted. And the board's work has been reinforced by a five-page report on growth in Pembroke prepared by Kerrie Diers, the town's director of planning and development. Near-capacity enrollment at the local schools and sewage treatment facility make the ordinance necessary, Diers concluded.

A public hearing on the ordinance will be held at the town hall at 7 p.m. Following the hearing, the planning board is expected to vote on the measure.

posted by prof_booty | 01:51 PM