ZONING REFORM: Unlocking Investment in Transportation, Health, and Livable Communities

There is little or no zoning in many parts of the United States.  It is condemned as the intrusion of government rules on what you want to do with your own property.  Live free or die!

But, historically, it was precisely the unregulated freedom of property owners to do whatever they wanted that was the cause of death.  Zoning was a way to separate deadly land uses from residential areas.

Unfortunately, over the years, in many communities zoning has become a mind-bogglingly complicated bureaucratic mess, totally opaque and highly vulnerable to back-room dealings as well as political-business collusion.  In many cases, it has become so ossified that zoning categories neither address market realities nor capture sufficient value for the public good.

However, zoning is still one of the most important tools society has to promote (in the words of a proposed Massachusetts Zoning Reform Bill) “the orderly and sustainable growth, development, redevelopment, conservation, and preservation of a city or town.”  Zoning shapes the built environment and sets the boundaries on what kinds of transportation system is viable, or even possible.  It also has a direct impact on the “livability” of neighborhoods and the health of the people who live or work there.  The National Association of County and City Health Officials (NACCHO) points out that a “growing body of research reveals a strong relationship between the built environment1 and a wide spectrum of public and individual health issues such as asthma, cancer, obesity, mental health, substance abuse, crime exposure, cardiovascular disease, and social and health inequity.”

Unfortunately, but not surprisingly, Massachusetts is behind many other states in efforts to update its zoning laws.  One land-use attorney describes Chapters 40A and 41, the zoning laws, as “nationally considered Neanderthal for zoning.”

However, a new reform effort is underway and needs the support of everyone who advocates for better transportation, health, environmental protections, water usage controls, and urban living.  The proposed legislation is titled support the “Comprehensive Land Use Reform and Partnership Act” affectionately known as CLURPA — S.1019.

Over a decade of negotiations among a wide range of stakeholders, coupled with a supportive Governor, makes this Legislative session a unique opportunity to move from talk to action.  But unless the appropriate Committee chairs make it a priority, time will run out before the bill will be able to come to a vote.  And we will have wasted our best chance in a long time to get this done.

Let your voice be heard:  call or email the chairs of the Joint Committee on Municipalities and Regional Government (info below) and tell them to act now.

Senator James T. Welch
State House, Room 416A, Boston, MA 02133    Phone: 617-722-1660,    Email: James.Welch@masenate.gov

Representative Michael F. Kane
State House, Room 540, Boston, MA 02133    Phone: 617-722-2090,     Email: Michael.Kane@mahouse.gov

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In the early 1800s, during the early days of the industrial revolution, zoning began as a way to limit the destructive pollution of manufacturing firms, which were dumping poisons into waterways and lands once used for drinking water, fishing, farming, home building, and recreation.  .  (For more on this history, see Reasonable Use: The People, the Environment, and the State, New England 1790-1930, by Dr. John T. Cumbler, Oxford University Press, USA (2001)

It was this core public health function that finally led the US Supreme Court, in the 1926 Euclid v. Ambler ruling, to uphold zoning as a constitutional use of governmental “police powers” – which is why public health commission regulations still have the same legal standing as legislatively passed laws.  (For more on constitutional law cases dealing with zoning see: http://supreme.justia.com/constitution/amendment-14/13-ownership-of-real-property.html)

Today, thanks to government regulations, the rise of white collar business, and the transfer of manufacturing jobs to less regulated parts of the world, domestic businesses are much cleaner – or at least they’ve become cleverer at avoiding being seen as the source of negative environmental impacts.

But this doesn’t mean that zoning has become irrelevant.  Zoning still shapes land use – where things are located and what happens there.  Zoning can also shape the way things look and interact with their surrounding – whether they are friendly and inviting or intimidating and inhibiting.  And by doing all that, it also shapes the transportation choices people make – to walk, bike, take a bus, or drive their own car.  As a result, it impacts the kinds of foods it is convenient for people to purchase, the kinds of recreational activity they are likely to participate in, the quality of the air they breathe, even the kinds of social connections they develop with their neighbors.

Zoning is not the only thing impacting these choices.  You can’t choose to take a bus if there isn’t a bus line.  Allowing mixed-use zoning –either directly or through “form-based” approaches that regulate the “look and feel” of the built environment rather than, within limits, what is done on the property – doesn’t automatically mean that a mix of uses will find it economically attractive to move in.  Some people want to be left alone no matter how easy it is to meet and talk with people on the street.  But zoning has a huge impact on all these issues.

The good news is that just about everyone finds the status quo troublesome.  The devil, of course, is in the details of what will replace it.  Currently a broad coalition has been formed to push for a much-negotiated bill (the “Comprehensive Land Use

Reform and Partnership Act”, better known as CLURPA — S.1019).  The coalition includes developers and environmentalists, anti-discrimination advocates and public health professionals, smart growth activists and transportation consultants, and more.  This is probably the best chance of getting the needed legislation through the State House in nearly a decade of effort.

The state Audubon Society gives a good overview of why this bill is so desperately needed:    “Massachusetts is listed by the American Planning Association as one of the states with the weakest and most outdated state land-use laws. Here in the Commonwealth, the responsibility for land use planning and the regulation of development is largely a local matter.  However, the state laws which set the framework for this municipal control contain unclear or restrictive provisions that effectively deprive our cities and towns of authority consistent with their responsibilities. These impediments render local planning ineffective, and even discourage it….The current planning, zoning and subdivision control statutes actually work to subvert local planning by laying down a minefield of exemptions, prohibitions and zoning freezes in the way of plan implementation. The realization of local land use plans is so hindered by the state’s disabling statutory framework that no one is served well, including those in need of reasonably-priced housing or interested in environmental protection.”  (http://www.massaudubon.org/PDF/advocacy/Zoning_Reform.pdf)

The proposed law clarifies the current law-suit inviting hodge-podge of unclear language.

It requires that every community create a high-level Master Plan – similar to the land-use overviews that many municipalities have already pulled together for Community Development under Executive Order 418 in 2000 – and that local zoning laws be aligned with the approved vision, designating what areas to preserve as open space and where to concentrate future development.   Suggested amendments to CLURPA would ensure that public health issues be included in that vision.

For municipalities interested in moving beyond the basics, CLURPA sets up a new Partnership Communities Program that will prioritize state funding and technical assistance to cities and towns that adopt higher standards consistent with state health, environmental, housing, and economic development goals.

The bill gives cities and towns new tools to review subdivision plans and to encourage walkable, bikeable streets and areas for play and recreation, such as inclusionary zoning, form-based codes, and natural resource protection zoning (Massachusetts has been losing land to development at a rate seven times its population growth).  It also formalizes the currently unpredictable guidelines for the impact fees – fees that developers pay to cities and towns that can support public transit, sidewalks, bike paths, and parks – reducing the uncertainty that hinders new construction and opens the door to back-room deals.  And it sets time limits for regulatory decision-making.

The Massachusetts Public Health Association’s Act FRESH Campaign, on whose steering committee I sit as a representative of LivableStreets Alliance, has endorsed CLURPA and made its passage a priority effort.

Zoning is one of those boring, hyper-local issues that we tend to ignore.  And state zoning is even more obscure and remote.  But, as with those Russian stacking dolls that fit one into the next, the shape of the largest doll sets absolute limits on the possible shapes of the smaller ones inside.  State zoning laws set the constraints for local zoning.  And local zoning sets the constraints for the types of transportation, environmental, health, and livability designs that we can build on our block.

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Related Previous Posts Include:

THE THREE LEGS OF A HEALTHY BUILT ENVIRONMENT:  Smart Growth, Active Transportation, Human-Scale Architecture

THE COMPLEX INGREDIENTS OF LIVABLE CITIES:  Complete Streets to Interior Design, Transit to City Planning, Art to Education

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