Okay, so maybe I’m confusing “zoning” with” “weather.” But the truth is that it is possible to change zoning regulations. (Uh, I guess it’s possible to change weather too, just not a good idea!) At least, it has been possible for other communities to change zoning regulations, so why not us? (Although my sympathy goes out to anyone who has to sit on a zoning reform committee…oh yeah, that’s me!)
Newton last conducted a significant review and update of its zoning ordinance in 1987 and is now taking steps to do so again. Phase 1 of the Zoning Reform process kicked-off in February and there’s a significant presentation happening Monday at 6 p.m. in the War Memorial to review this presentation.
I sent in my resume to be on the Zoning reform committee, elections committee and Parks and rec committee. Now I understand why he didn’t select me for any of the committees. he didn’t want me to waste my time:).
Greg, you seem to be up to date on this, why is our zoning stagnant? Why can’t we simplify our zoning?
@Tom: I thought you were on the “world peace” committee?
Greg,
Close, but no cigar. I was thankful to the LA Lakers who allowed me to be on the “Metta World Peace” Committee.
Greg,
How can we reform our zoning (serious question) should we simplify? What direction should Newton go into? Should we try to bring business’s into Newton? What are your priorities for Newton? Are your priorities the same as the committees?
Tom: These are important questions for sure. I urge you to attend the public meeting at 6 pm Monday at the War Memorial to find out more and comment if you choose.
The point of the first phase of the Zoning Reform Process is to simplify the existing ordinance without changing any of the existing policies. Code Studio has produced a very interesting document introducing the changes that they’re going to recommend. Most of the changes they’re going to propose seem valid. Zoning junkies should be in seventh heaven next week at the presentation of the report but to really enjoy it, it makes sense to read through it before and come with questions and suggestions.
Alderman Brian Yates
Greg,
It coincides with my Metta World Peace Committee meeting. Sorry.
When it comes down to it, the zoning code is where we lay out how we want people to build things in the city. This is true for both businesses and for homes. Given all of our discussions on the village centers, on substandard lots, so called McMansions, etc zoning is critical. We laid out a useful framework in the Comprehensive Plan back in 2007, but the zoning hasn’t yet been updated to reflect this. The clearer we can lay out our zoning the better the chances of it actually getting what we’re looking for.
…Of us actually getting what we’re looking for
(poor editing on iPhone. Sorry)
Chris, What is that we’re looking for? Are you on the committee as well?
A question for Greg and the committee, Did the Mayor just put you all on the committee and not give you any directions? If there were directions, what were they?
@Tom
Answer 1- interesting question. The Comp plan has one set of ideas, but I suspect the community may have others now.
Answer 2- sadly, no.
There is a fairly simple reason why it often appears that nobody does anything about zoning: it is supposed to be hard to change it. Unlike most ordinances, the enactment of zoning ordinances and bylaws is governed by state law, which requires notice of public hearings to be held by the planning board and the board of aldermen, a vote of 2/3 of the board of aldermen, or 16 votes, as opposed to a mere majority, and imposes strict time limits within which various actions must be taken before the ordinance can take effect. These procedural and substantive requirements are intended to protect property rights as well as the public interest because a change in zoning can have a profound impact on land use and property values. Zoning is fairly recent and has only been around since the early 20th century. While courts have upheld the right of state and local governments to impose zoning restrictions as a general matter, that right is constrained by various state and federal statutory and constitutional protections concerning equal protection under the law, freedom of religion, and against uncompensated takings by the government, among others.
There is also another law that is relevant to zoning changes, which is the law of unintended consequences. Since the last time Newton’s zoning code was substantially reformed and revised, there have been any number of amendments that are all too often initiated by the most recent house someone didn’t like. For instance, the enactment of Floor Area Ratio (FAR) limits on the size of houses in relation to the square footage of lots, and the repeal of the 50% demolition rule which was intended to offer relief from FAR for people who wanted to build additions to existing houses when FAR was passed, had a profound impact on homeowners who suddenly found themselves unable to build their dream house or add a bedroom or family room to accommodate a growing family. The ordinance requiring Historic Commission review and approval of demolition permits for houses older than 50 years, which can delay the issuance of such permits for a year, also have a substantial impact on homeowners who want to demolish part or all of their houses to build additions or new homes. While these zoning ordinances were intended to stop the loss of historic houses and the proliferation of “monster homes,” they have also had unintended impact of making it far more difficult and expensive for homeowners to make necessary and desired changes to their homes, which, as I am sure everyone appreciates, is the single greatest asset most people own. In some cases, it can also have the opposite and unintended affect of encouraging homeowners and builders to seek demolition permits and wait out the clock so they can do what they want by right without interference from a commission comprised of citizen volunteers from the community.
And while I agree that Newton’s zoning restrictions can have an adverse impact on businesses that want to open or expand in village centers–particularly the city’s outdated and overly restrictive parking requirements–as the chairman of the Land Use Committee, which reviews applications for special permits, I get to hear both sides of the issue at public hearings on a regular basis. Businesses and their supporters, of course, extoll the virtues of economic vitality and vibrancy that restaurants and other businesses bring to our village centers. While restaurants and businesses find the permitting process onerous, neighbors often come–sometimes in droves–to complain about traffic and parking problems created by the patrons local businesses.
In the end, the Board of Aldermen has to balance these competing interests in a way that is fair to everyone, which needless to say is no easy task. But, that’s why they pay us the big bucks, I suppose. ;-)
Ted, really well written piece. Is this a complimentary or opposing viewpoint: To give back property owners the right to fix and improve their land/as well as making it easier for business’s to do business here. What would happen if we simplified our zoning. We experimented with some ideas and now, at this point in our history, we want to go in another direction?
The side of this story that has the least leverage is that of the people who live in an established
neighborhood. The story of a developer who tears down an affordable house and builds a$2m house at the expense of the character of a neighborhood, a village, and perhaps the city. These monstrosities are often poorly built, do not stand the test of time, and their primary purpose is to make money for a developer.
A $5-600,000 house rarely goes on the market in Newton these days. Instead it’s bought by a developer and a request for demolition is set in motion. The first time that people in the neighboring homes find out the house is even for sale is when they receive a request for demolition in the mail from the Historic Commission. The HC then rejects the mega-monstrosity, but expects you to be happy with the mini-monstrosity (an addition that doubles the size of the house) and tells you that you should feel “lucky” that you’re not getting the mega-monstrosity. Of course, it’s clear to anyone attending the meeting that the whole thing was a done deal before you’d walk into the room (why am I shocked at this after all these years?!). After you walk out of the room, the developer – who was oh-so-polite to the HC and promises better communication with the abutters – yells at the neighbors (“Who do you think you are…?”) in the hallway of City Hall and storms off.
Then the process begins, so to speak – demolition begins without a permit (illegal), cement trucks park on private property (illegal), the foundation is dug but no fence is placed around it (illegal) in a neighborhood full of children. The builder arrives unannounced at 9:00pm and wanders around a dark lot on a dead end street while you sit in your house and try to figure out whether to call the police. You are reassured that this project will be completed in 4 months and 4 months later, there’s nothing but a huge hole in the ground.
The saddest part? What would have been a somewhat affordable family home in Newton will now become a $2m house, all so a developer could make a bundle of money.
So much for affordable housing in Newton.
Chris,
Is the economic development committee going to work with the zoning reform committee? Is there representation from the EDC on the ZRC? Just curious.
@Tom – My understanding is that the EDC will not have direct representation on the ZRC. I am uncertain as to why. However, Greg is part of the ZRC and will provide input on these issues (as he notes and is looking forward to).
Even so, I and others on EDC participated actively during the initial rounds of zoning reform a year and a half ago and intend to be present as this discussion goes forward.
By the way, there is a real opportunity to address some of what Jane has observed as well. I’d love to see some data on this, but I suspect that our stock of “starter” homes is disappearing. There are changes we can make to the zoning code to both encourage the development of entry level housing, housing for empty nesters, and also to limit the exercise of maxing out the FAR on a given site. Tools such as form-based codes can also be used to encourage the development and preservation of residences and commercial areas that are more in historic character with the surrounding neighborhoods.
Well, Jane, talk to your aldermen about why they voted against allowing people who own two small contiguous lots to be able to build on the second lot. Instead, owners of double lots only have the option to build one home on a double lot (even if they have been taxed at a higher rate on the second lot over the years based on the assumption the lot was buildable). With the price of real estate in Newton, who can blame a builder who comes in and buys both lots and puts up one great big house instead of two little ones? Even if they would prefer to build a smaller, more affordable house on the second lot (which may of them would), our zoning makes building a monster home the only economically viable option.
And you can hardly blame property owners who are close to retiring and want a nest egg to live on in their retirement. Since the vote earlier this week, two double lot owners have already applied for demolition permits. I expect a long line of other owners of double lots, estimated at a little over 200 property owners, to follow. Ironically, if when they bought the lots they had bought them in separate names (for instance, “Real Estate Trust I” and “Real Estate Trust II”) they would be allowed to build on these lots. So, for these folks, a relatively “minor” change in our zoning is having a profound impact on their property values and their pocketbooks.
By the way, Ald. Albright and I were the only ones who voted against killing an ordinance which would have allowed these owners of double lots to build a small house on the empty second lot. In addition, I have voted twice now against special permits allowing property owners to raze existing homes so they build new ones that exceed FAR limits which were approved by the BOA. In my view, unless the proposed house is consistent with the larger size and character of other existing houses in the neighborhood (which is what the ordinance says), all new house construction should comply with FAR.
MGL Chapter 40B allows developers to circumvent density limits and other zoning in order to create affordable housing. The economics of creating affordable housing in Newton, where real estate prices have remained high throughout this recession and the housing bust that has caused property values to plummet elsewhere around the state, means that higher density housing is needed to subsidize the affordable units with market rate units. But neighbors often oppose these projects, no matter how modest, because of the increased density. So if you want affordable housing, you have to accept increased density. And if you want less density, you have to accept monster houses.
Local funding for affordable housing is a drop in the bucket and federal funding for affordable housing in Newton has been cut over the years. To add insult to injury, the Mayor’s office is about to make it even harder to create affordable housing by grafting all sorts of onerous requirements on non-profit developers of affordable housing that will raise the costs of building affordable housing, so what little money there is won’t even go as far as it used to. These added burdens are in addition to HUD requirements and are not required under HUD’s regulations. Unfortunately, Newton is headed entirely in the wrong direction on affordable housing.
Jane,
I commend Ald. Ted Hess-Mahon for his principled opposition to giving special permits for higher FARs and construction where a larger house does not fit the character of the neighborhood. He gives, however, a very one-sided and inaccurate portrayal of the small lot , building of over-sized houses and density issues. To address just a few points:
1. The double lot vote this week was not a zoning change. It was a vote to continue a 72 year old policy that was established in 1940 when Newton first set minimum lot sizes. In zoning and land use discussion it’s called the merger principle. In simple terms it says that a property owner must treat two undersized lots as one if that’s required to meet the dimensional standards in the zoning ordinance. It means that all property owners are treated the same regardless of whether they own two undersized lots, one larger lot that was legally merged into one, or two acres and want to divide it into separate house lots. The merger principle is not unique to Newton. It’s part of MA law, the zoning laws of other states such as NH and RI, and many other cities and towns in MA including Brookline and Wellesley.
2. The vote of all the other Aldermen besides him and Ald, Albright tells us that they do not agree with his analysis of the situation and are comfortable with the requirement that new construction conform to the lot size and setback requirements in the zoning ordinance.
3. Newton improperly permitted construction of a few “small” houses in recent years. I have seen data on six cases and the average value is about $1.4 million. These are more affordable than $2 million dollar homes on large lots, but not what most of us would refer to as affordable.
4. I have looked at the assessed valuations of many of the vacant undersized sideyard lots and they mostly are assessed as undevelopable in the $20,000-$50,000 range. There are a few, very few, that are assessed as potentially developable with values of $200, 00 or more. By the way, Ald. Albright said in an email that she based her vote on the desire to see more data before deciding and the Zoning and Planning Committee of aldermen requested that the data be developed and made public.
My esteemed colleague Alderman Hess-Mahan is at best incomplete and at worst wrong in several of his statements above. The near unanimous vote of the Board was that No Action was Necessary on item 25-12. This item incorrectly described itself as a clarification of the intent of an item passed in 2001 to allow homes on older smaller lots to continue while maintaining the requirement of state and local law in effect in Newton since 1940 that vacant lots that are below the minimum standards of size and frontage that are adjacent to other small lots with existing houses on them are to be merged with the adjacent lots. This is to carry out the state policy that all substandard lots should become as close as possible to conforming with the dimensional requirements of the zoning districts in which they are located. Alderman Hess-Mahan is totally incorrect when he states that these lots are assessed at the full land rate for their neighborhood. In fact, the Assessors Department has accurately followed the law since 1940, classified these lots as unbuildable, and assessed them accordingly lower.
Any one who was expecting these substandard lots to constitute a windfall to them has been incorrectly advised and should look very closely at the source of such bad advice.
There are a handful of properties that were developed in accordance with this incorrect interpretation of the zoning ordinance before the first law suit was filed to protest the error.
There is clearly a way to grandfather these innocent victims.
The other victims of this entire situation include the residents of Bradford Road, Goddard Street, and several other neighborhoods who found that incorrect building permits were issued for properties near them and were forced to defend their legal rights under the Zoning Ordinance. The Bradford Street residents were forced to pay to defend their quiet enjopyment of their property against incorrectly issued permits before the Zoning Board of Appeals, the Land Court of Massachusetts and the Masssachusetts Appeals Court. A majority of the ZBA, the Land Court, and the Appeals Court all agreed that the combination of state law and local ordinances meant that the substandard lot in question was merged with the adjacent house lot in common ownership ,is and has been since 1940 unbuildable. This simple declaration of fact has cost them tens of thousand of dollars to achieve a finding that should have been provided for free by a correct interpretation of the Zoning Ordinance. The residents of Goddard Street are part way into a similar costly process. The residents of other streets wait in dread to be put through a similar costly ordeal. It would be unconscionable to turn to these citizens of the city who have been forced to seek justice at great expense and then overturn their hardwon costly victories by turning the Newton Zoning Ordinance on its ear. It is preposterous to assert that allowing development of these unbuildable lots would contribute to affordable housing in this city.
Dear Ald Hess-Mahan. The intent of the current zoning ordinance is to have these commonly owned double lots (which are substandard by today’s and even the original zoning lot size requirements from 1940) be merged into a single parcel of land so that they conform better to the present zoning requirement lot sizes within our neighborhoods. While there have been a few exceptions as you have pointed out in the past, the majority of these side lots have been taxed as undevelopable land which means the assessed value for tax purposes is a fraction (<10%) of their value were they developable. So in that sense the long time owners of these double lots have already seen their savings nest egg through significantly reduced taxes on their side lots. If they suddenly became developable it, in my opinion, means they've effectively hit the jackpot since they've already benefited from reduced taxes and now can also sell the lots for a significant profit (10X) over what the assessed value is. That's not right nor fair in my opinion.
If you look at the dozen or so homes which have been built on these side lots over the last decade due to misinterpretation of the zoning ordinances you'll also see that they are by no means affordable. By affordable I say under $750,000 which in itself is far from affordable for most families, in particular younger families. The reality is that the average single family home in Newton sells for well above that. New homes being built on any parcel of land sell at a premium and are being built often at maximum FAR's so generally are not affordable in any situation nor close to that average price let alone under it and hence affordable.
What you'll also see is that McMansions are being built everywhere irrespective of the size of the lot or whether they're merged lots or not, i.e. I don't believe petition 25-12 affects building of McMansions in any way in our city. A McMansion by my definition is one which is not in keeping with surrounding homes in terms of size and character / design style. Whether a 3,000 sq ft McMansion is built on a 5,000 sq ft lot or a 4-5,000 sq ft one is built on a 10,000 sq ft lot is somewhat irrelevant if the surrounding homes on the street average 1,700 sq ft which is common of many of our older communities. In my option neither fit into the neighborhood and to be honest I'd prefer to see the larger home being built on a larger parcel of land than to have further homes crammed in on small lots. Why? Because merger of lots requires that the setbacks follow new lot standards, which for SR2 is a 15 ft side setback versus the 7.5 ft setback which would be the case for an old (side) lot.
I commend you for voting against special permits to build homes that exceed FAR allowances since the current allowances already allow for large homes to be built relative to the lot size. This is particularly true for the smaller lots. On very large lots the FAR allowances are not generally going to come into play even for the largest of large McMansions. However, I respectfully disagree with your comment about “putting up one great big house instead of two little ones”. As I said before, these “little” houses are by no means little compared to the surrounding homes. You also need to look at the actual lot sizes of the side lots. Quite a few of them don’t meet the minimum buildable requirements of 5,000 sq ft AND 50 ft of frontage. I feel though that if these lots were to ever be buildable that the lot size minimum requirements should at least conform to the old lot requirements (i.e. pre 1953 lot sizes) so that homes are not merely squeezed onto small lots. If it were a 1,500 sq ft home being built on a 5,000 sq ft lot it would fit in, but no developer would only build a 1,500 sq ft house when they could build double that size and hence make more money – that’s just reality. I’d also like to point out that nobody is going to flatten a perfectly good home in good condition unless there is a financial reason to do so, so I would not expect to see a flurry of requests for permits to demolish existing homes just because they happen to be on a co-owned double lot. It would only make financial sense to do so if the existing home was in poor condition and wasn’t worth enhancing or expanding on to.
Ron, Pater and Brian thanks for blogging. Are any of you om the ZRC? If so, where do you envision Newton after the ZRC is done with their work? What are your goals? If you’re not part of the ZRC, where do you think Newton should be?
@Peter, all I can say is that the two special permits for new construction of a house that exceeds FAR (which a 2/3+ majority of the same BOA voted for) were tear downs of perfectly good houses that the new owners simply deemed to be too small for their needs.
The first one involved the demolition of a charming 2100 square foot house built in 1930, the exterior of which was rated “average” but the interior of which was rated “above average” to “excellent,” so the new owners could build a brand new 4100 square foot house on a less than 10,000 square foot lot. The second involved demolition of a 3100 square foot house built in 1979 which will be replaced with a 7100 square foot house.
If you want to see for yourself, go to the Special Permits webpage of the Board of Aldermen website, click on “Special Permits 2012” and look up petition nos. 93-12 and 118-12. And these were not houses built on spec–these were lots that were bought by new owners with the intention of tearing down the existing houses and building new ones that they would live in. And they paid top dollar for the real estate.
Based on private discussions I have had with some developers and land use lawyers, I sincerely believe that we will be seeing a lot more of these. As always, with respect to every special permit application, I will approach each one on a case-by-case basis. But I think it is entirely likely that a number of the double lots with existing houses on one of the lots will make way for monster houses on the merged lot. Time will tell which of us is the better prognosticator.
With respect to looking at the lot sizes and other information about these 200+ double lots, Ald. Albright and I urged the committee to do so before voting NAN. I have looked at some and in a number of cases, the undeveloped lot is the same or similar size as every lot on the block which has a house on it. You are correct that the 10 or so that were given building permits over the past ten years are not “affordable” to low to moderate income households, although some are at or near the median single family assessed value for Newton. Rather, as I said, they are “more affordable” than the monster houses that will likely be built in their stead.
While I disagree with Alderman Hess-Mahan on the desirability of building on lots previously deemed unbuildable, I wholeheartedly support his position on what appears to be an irrepressible urge on the part of developers and some homeowners to push the FAR limits past the breaking point. The problem of over-generous FARs is presumably one that will be tackled by the zoning reform effort that is already underway in the city.
Alderman Hess-Mahan also touches on the problem of the demolition of habitable—even commodious—homes simply because something bigger and more profitable will fit on the lot. Many of us have seen the effects of this tendency in our own neighborhoods. For example, I recently learned that a modest home (3 bedrooms, 2 baths) not far from where I live in Newton Highlands was sold, not to a young family who would have found it both comfortable and affordable, but to a developer who intends to tear it down and replace it, probably (since it’s in a multple-residence zone) with a two-family condo, each unit of which will no doubt sell for more than the price of the original house.
It is pointless to criticize developers for wanting to build the largest possible houses on the smallest possible lots; it is in their nature to try to maximize profit. However, I believe that the City’s original intent in identifying undersized lots as undevelopable and taxing them at a rate about 1/10 that of developable land was to encourage homeowners to preserve those lots as green space, gardens, and play areas that contribute in large part to making this truly a Garden City. I hope that our aldermen will do whatever they can to ensure that Newton’s neighborhoods maintain their diverse and appealing character.
@Tom:
I’m not on the zoning reform committee. Rather I am merely a resident of Newton who got thrown in head first and am deeply concerned with how our neighborhoods are changing, change which I don’t believe is necessarily for the good.
@Ald. Hess-Mahan:
I too have had discussions with many residents including a couple land use attorneys and share some of your concerns. You’ve just got to drive through the side streets of Cambridge and even the super expensive Avon Hill area to see what Newton’s future might hold in terms of overcrowding and increased density. Old Mansard Victorians are being bought up and converted to luxury townhouses at the same time doubling or tripling the size of the overall structure on the lot (not dissimilar to at least two current development projects in West Newton which, while they appear to be nice, completely dominate the lots). Same thing is happening in Belmont.
The issue we face now, and face for any lot irrespective of whether an existing house is being torn down or merely added on to, is how to deal with what seem to be overly generous FAR limits for small and even medium to large lots based on your examples. There are examples across the city where existing homes have more than doubled in size due to large additions being added to the existing structure (for example one near Brae Burn golf course which went from approx 2,000 sq ft to over 4,100 sq ft). And yet I’ve heard some developers stand up and petition for the FAR limits to be changed to allow for even larger homes to be built! On a positive note, it was encouraging to hear some of the discussion at the ZAP meeting last Wednesday (3/27) night which talked about re-evaluating the current FAR limits. Maybe a sliding scale would be appropriate where just for the sake of example a 5-10,000 sq ft lot might be limited to 30% FAR, 10-20,000 sq ft limited to 35%, and over 20,000 limited to 40%. We moved to Newton from Cambridge so that we would have more open and green space and a less densely populated neighborhood and yet that very attribute is perilously at risk. Food for thought.
This has to be my last comment on this because I actually have other things to do this weekend. Sorry (or not as the case may be).
Change is inevitable. So is entropy. And so is the perception that what my neighbor wants to do with his/her house is unacceptable but what I want to do with mine is not, even if it happens to be one and the same thing. Zoning decisions (and decision-makers) have to carefully balance those competing realities and interests.
I actually think that our FAR ordinance, which has a sliding scale that allows for modest additions to houses on smaller lots and curbs expansion on larger lots, is at or close to the Pareto Optimality. So I would not be inclined to change it, and we would upset the apple cart all over again if the pendulum swings back too far, by derailing the plans and dreams of current homeowners.
Finally, on the double lot question, I invite you all to go the Assessors Database and search “Olde Field Road,” which was the example used at ZAP by the Planning Department in their presentation. I challenge you to figure out which house was built on the second undeveloped portion of a double lot by looking at the aerial photograph of each block and without looking at the property cards. Then, look at the property cards to see which houses were built most recently. And then imagine that lot and the one next to it with a house double the size instead of two smaller houses. I think you will understand my point about what the future is going to look like in Newton.
Greg,
Will your changes to the zoning ordinances eventually be put online?
@Tom: They won’t be my changes. There could be changes recommended by an excellent committee (most of whom have much more experience with these issues than me). Plus our mission is only to help clean up/clarify the existing rules. Changing comes later and ultimately is up to the aldermen.
Jane – You are absolutely correct that teardowns and over-builds can destroy the character of a neighborhood when developers over-build on large lots.
In reading these posts, however, it seems as though it’s being suggested by some that allowing building on small, side-yard lots will fix this McMansion problem. It won’t. Allowing building on small, side-yard lots will only increase the density in a neighborhood, also destroying character. At the same time, developers can still tear down and over-build on large lots. Instead of fixing a problem, building on the small lots only presents an additional problem. The best thing for neighborhoods is to not allow small lot building, and control large lot building through FAR limitations.
Paul-I agree with you and with the aldermanic vote against allowing residents from building on what have historically been unbuildable lots. No one has a right to make a windfall from a property they’ve paid minimal taxes on for many years if they’re not in compliance with the law.
This situation is changing Newton. Do we want to put this city out of reach of young middle income families? We’re at risk of losing the economic diversity that contributes to Newton’s diversity and sets us apart from surrounding communities.