Goal 1: Support Rezoning Objectives that Residents Understand and Want
In the summer of 2018, Mayor Fuller's staff abruptly rewrote Newton's entire zoning ordinance legislation, even though this executive branch rewrite of zoning ordinance legislation appears to be in violation of Massachusetts state law M.G.L. 40A, §5 and the Newton City Charter. Then, for the next three years, Mayor Fuller's staff has relentlessly tried to pass their proposed rezoning. The City Councilors on the Zoning and Planning Committee (ZAP) have had to sit through 1,100+ PowerPoint slides and Newton residents have been subjected to countless "engagement" activities in order to give the impression that the Planning Department is "always listening" when, in fact, the Planning Department is really just "always selling." The core of the Planning Department's 2018 proposed zoning ordinance has barely changed during this three year period - where this core is the transfer of most residential permitting power from the City Council and Newton residents to the Mayor's boards (ZBA and Planning Board). This transfer has significant real estate profit implications and is done in two steps.
Step one is to make the residential zoning code so severe that almost no single/two-family home permits can be "by right," meaning that almost all single/two-family home permits will have to get either an approval to change their new subjective "house type" assignment from the Mayor's ISD commissioner and/or get a special permit from the Mayor's new Special Permit Granting Authorities. The severity of the proposed rezoning on homeowners was communicated to ZAP in a 7/15/20 analysis from me and also in a separate 9/30/20 analysis from a group of seven building professionals who had been advising the Planning Department on the rezoning.
- The resulting non conformity will severely restrict and discourage homeowners across the city from improving their homes with additions that reflect contemporary living requirements and market expectations to retain property value. [9/30/20 letter from building professionals to ZAP.]
In their 9/30/20 letter, the building professionals formally asked to present their analysis and conclusions at a ZAP meeting as soon as possible. Several ZAP members and other City Councilors wanted to hear this presentation and ZAP leadership appeared to schedule the presentation for 11/5/20. The presentation never occurred, however, except for a very limited discussion on garages only (not homes) on 10/26/20. This was part of a general trend in which the topic of the increased nonconformity of the proposed rezoning was deferred, delayed, and ultimately avoided by ZAP leadership. In my opinion, this was because the increased nonconformity, and the increased special permits, for single/two-family homes were intentional features of the proposed rezoning.
Step two is to change the Special Permit Granting Authority for single/two-family homes from the City Council to boards appointed by the mayor. This will allow the mayor's boards to A) deny special permits to small projects that currently would be built "by right" and B) approve special permits to large projects that would currently be denied special permits by the City Council. These two permitting decisions could even be made on the same parcel at two different times, creating a windfall profit for the recipient of the special permit. Unlike the City Council, the mayor's board members aren't elected by Newton's residents. If the rezoning is passed, Newton residents will have no recourse but the courts if they disagree with the permitting decisions of the new Special Permit Granting Authority.
Replacing the current "by right" remodeling of existing smaller homes with teardowns and new construction of larger homes is more profitable to developers. This two step process achieves this profitability at the expense of current homeowners who will lose many rights over the use of their property under the proposed rezoning.
[To see how your street and individual address are affected by the proposed rezoning, please use the interactive calculator that I wrote at "Rezoning and YOUR Home." ]
Unreliable Grandfathering Assumptions
Many Newton residents feel that they don't need to worry about the new rezoning because their properties are "grandfathered, " meaning that the new zoning code will not apply to their homes. This is not always true. Massachusetts state law M.G.L. 40A, §6 does give grandfathered protections to many structures and uses, with extra protections given to single/two-family home structures and uses. M.G.L. 40A, §6 does NOT give grandfathered protections to site characteristics, however, such as the ability to have surface-parking (i.e. driveway parking) on a property. One of the most severe constraints imposed by the proposed zoning, is that driveway parking stalls would become nonconforming in the front of homes, within 3' of the side borders of homes, and, worst of all, within the rear setbacks of homes, which the proposed zoning has also greatly increased to 30' or 40' from the rear property line for 75% of Newton's single/two-family homes. In addition, the proposed zoning has added language enabling the selective enforcement of these severe parking stall restrictions on existing driveways. This bizarre rear surface-parking prohibition does not appear in ANY of the 60 densest Massachusetts municipalities, which generally encourage parking at the rear of homes. Furthermore, the rear surface-parking prohibition does not apply to detached garages, which can still be built in the rear setbacks. It's primarily the homeowners who can't afford, or don't want, garages who are affected by these severe driveway parking restrictions.
Again, state law does not protect residents from these new surface-parking prohibitions, meaning that the Newton government can make some garage-free smaller lots impossible to live on if the Newton government chooses to selectively enforce the new surface-parking prohibitions. Not being able to park on their own property will pressure the owners of garage-free smaller lots to sell.
Owners of existing smaller single-family structures will also be unfairly affected by the proposed new zoning. This is because 25% of single-family homes, the smallest homes in Newton, have been made disproportionately nonconforming by giving them unreasonable story height limits under two stories. This bizarre story height limit also does not appear in ANY of the zoning codes of the 60 densest Massachusetts municipalities for detached single-family homes - except for accessory residences or clusters. Furthermore, this restriction is address-specific and set by the Mayor's ISD Commissioner through his subjective (and lot size independent) "House Type" assignment, with unhappy property owners having to appeal his assignment with the ZBA. This means that your house might be allowed only 1.5 stories and a 1,200 sq. ft. footprint while your next-door neighbor would be allowed 2.5 stories and 2,300 sq. ft. footprint, even if you have a larger lot and you and your neighbor are in the same zoning district. The right to build a future full second story on your house is not protected by M.G.L. 40A, §6, although the non-uniform application of story and footprint limits might be challenged in court on the basis of M.G.L. 40A, §4, which requires that any zoning by-law be uniform within the district for each class or kind of structures or uses permitted. Not being able to add a full second story on their homes will also pressure the owners of smaller single-family homes to sell rather than renovate. These homeowners are, again, the least likely to afford a court challenge.
Deliberate Removal of Protective Language for Nonconforming Structures/Uses
Massachusetts state law M.G.L. 40A, §6 does give grandfathered protections to many structures and uses, with extra protections given to single/two-family home structures and uses. The current zoning ordinance section on nonconforming properties repeats the M.G.L. 40A, §6 protective language for nonconforming structures/uses almost word-for-word, so that the owners of nonconforming properties clearly know their rights. Unbelievably, the Planning Department has actually gone so far as to remove the protective M.G.L. 40A, §6 language from the proposed ordinance section on nonconforming properties and replace it with language that wrongly implies that reconstruction of nonconforming single/two-family homes is only allowed with extraordinary disaster or with ordinary minor maintenance, not with a typical remodeling. Importantly, as much as the Planning Department might want to get rid of the inconvenient state law M.G.L. 40A, §6, the law still exists. The problem is that by removing the M.G.L. 40A, §6 language from the proposed code, homeowners are no longer informed of their rights or may have to go to court to get these rights upheld against the new Special Permit Granting Authority. As with the new prohibitive surface-parking and new story number regulations, the removal of the M.G.L. 40A, §6 language from the proposed code will pressure the owners of smaller or older homes to sell because these owners a less likely to hire lawyers to explain their rights and/or to afford a court challenge.
What I Would do as City Councilor
I am alarmed about the extreme anti-resident/pro-developer content of the Planning Department's proposed zoning code and, especially, the pressure that it puts on owners of smaller or older single-family homes to sell to builders of larger homes. If I am elected as the Ward 5 City Councilor, I will do everything in my power to stop the Planning Department's proposed rezoning and replace it with three simple and MODERATE zoning changes that originate with the City Council. These moderate changes would actually produce more affordable housing, not the forced teardown of smaller or older single-family homes for the profit of the builders of much larger homes, larger homes that would not be built under the current zoning.
These three moderate changes are as follows:
Newton's current values of Floor-Area-Ratios (FAR) should be adjusted downward. FAR is the maximum ratio of structure area to lot area. Decreasing FAR would decrease the ability of huge homes to be built.
Single-family minimum lot sizes should be adjusted uniformly by district to the pre-1954 lot creation minimum size. Currently, for each zoning district, minimum single-family lot sizes are different for lots created before 12/7/53 and on/after 12/7/53. For current district SR1, the "old lot" minimums are 15K while the "new lot" minimums are 25K. These numbers are 15K and 10K in R2. These lot minimums could be changed to simply 15K in R1 and 10K in R2. Coupled with the reduced FAR limits, this would create the possibility of a greater population of smaller homes on smaller lots, meaning more affordable homes.
Current Special Permit allowed two-family/multi-family conversion minimum lot sizes could be adjusted downwards. The current zoning code (sections 3.1.11 and 3.2.13) allows the Special Permit conversion of pre-1975 single-families to two-families in districts SR1 through SR3 and allows the Special Permit conversion of pre-mid 1979 two-families to multi-families in districts MR1 through MR3. These conversions are subject to lot size constraints and home age constraints. Both the lot size and home age constraints could be adjusted to allow the preservation of older large homes, repurposed into more housing units. This would also allow more affordable housing. Again, however, I am only suggesting a moderate change to the EXISTING zoning code, not the by-right permitting of construction or conversion of multi-family homes in single-family districts.
I would also use my position to help Newton residents have a larger and more quantitative discussion about the general goals of Newton's housing policy. These goals would include targets for density, owner-occupancy, and housing type diversity (single-family, two-family, etc.). By making this discussion quantitative, policy makers would have to deal with some of the trade-offs in housing policy. These trade-offs include the relationship between density and owner-occupancy, shown in Figure 1.
Figure 1 contains the 2019 estimated density and owner-occupancy rates from the U.S. Census for Suffolk, Norfolk, and Middlesex counties, for all municipalities with a population greater than 5K. These data show that A) owner-occupancy rates decrease with density, and B) Newton is already relatively dense at 5K people/sq. mi. compared to most suburbs. What density and owner-occupancy values should Newton aim for? Low density/high owner-occupancy communities effectively ban residents below certain wealth levels from living in the community. High density/low owner-occupancy communities, however, result in residential real estate being owned and controlled by fewer people, concentrating more equity ownership wealth at the top. What are the optimum levels?