Thirty years after the last wholesale1 rewrite, Newton is in the final stages of a redesign of the city’s zoning ordinance. As I noted here, this will arguably produce the most consequential change to the city in generations. Traffic, schools, McMansions, apartments, open space, parking, shopping, just about all aspects of city life are defined or heavily influenced by what we can build and where.

How good is the draft? Like the Deacon’s egg. Good in parts.

Let’s take a look, shall we?

There are two aspects to the zoning ordinance — and to the redesign: the how and the what. The how parts define how a property owner determines what they2 can build on the property and what mechanisms govern approval for the changes. The what defines what can be built on any given lot in the city. Deputy Planning Director James Freas refers to this as mechanism v. standards. 

To start our investigation of the new zoning code and its implications, I’m going to start with three broad posts:

  • The how
  • The what, residential
  • The what, village center/commercial district

As we’ll see, the divide between how and what, mechanisms and standards is not a bright line. Much of the how shapes the what. And, the distinction between residential and commercial is also not a bright line, intentionally.

This is the how post. Bottom line: the draft zoning code eliminates a lot that is confusing and difficult about the existing ordinance. It’s a huge improvement. Municipal land-use regulation geeks are rejoicing. Local land-use attorneys, not so much. 🙁

The purpose of zoning is to limit what can be built and what activities or “uses” are allowed on any given lot.3 Zoning sets the scale of building in a particular district and can be used to separate uses: residential from commercial from industrial, &c. A good zoning plan will effectively encourage desired development and discourage undesired development, while providing property owners, developers, neighbors, and the city predictability and low transaction costs, meaning the regulatory process is reasonably quick and doesn’t represent an inordinate amount of project cost.

The key mechanisms of zoning are:

  • The map — identifies which district each lot is in
  • District definitions — broadly defines what kinds of buildings and uses are allowed in a district, by right or by special permit4
  • Dimensional standards — more detailed rules about the size and shape of buildings
  • Processes — process for approval for exceptions to the zoning rules, including who the approving agency is 

On the how front, the current zoning code fails in a number of dimensions. The mechanisms are very complex, exceptions are costly to manage, and the rules don’t protect well against undesired outcomes. The core of the problem is how intensity of development is determined: floor-area ratio (FAR). The FAR is calculated by dividing the gross floor area of the building to be built (or the end state after an addition) by the lot size. A 2,934 sq. ft. house on a 5,399 sq ft lot, has a FAR of .54. Depending on the district and the lot size, .54 is either compliant or non-compliant. 

Not only is FAR-based zoning difficult to use, it creates undesirable outcomes, especially in Newton. Newton has a bunch of neighborhoods where lot sizes vary widely. Since, under FAR-based zoning, lot size dictates how much you can build, the potential for widely varying homes within the same block.

What is possible by-right can cut two ways. Newton’s first pass at zoning created FAR limits that did not reflect what was already built. Over 85% of homes in Newton do not comply with current zoning. These are called existing, non-conforming buildings. The owner of an existing, non-conforming home is not allowed, by right, to add to their home, while a neighbor down the block can. 

The flip side is the case of the owner of a larger lot, perhaps due to a weird appendage on the back of the lot, who can build a much larger home than their neighbors can — the dreaded McMansion. While lot-sized based zoning isn’t the only cause of McMansions, it does result in wide variance of home size in a neighborhood. If you are in favor of more uniformity of building massing, this is not a good outcome.

The draft zoning takes a different approach. With one exception, how much you can build is not based on lot size, but rather by district. Each lot is in a district. Each district has a set of allowed building types. Each building type has simple maximum dimensions (footprint and height, principally) and some relatively simple design rules. In nearly all cases, homes on one side of the street on a block are all in the same district. Regardless of lot size, all homes will be similarly sized. If you are in favor of more uniformity, this is a great outcome.

Under the proposed zoning, homeowners on smaller lots can build out as much as their neighbors. Homeowners on larger lots can’t build out of proportion to their neighbors.

The simplicity of the draft zoning’s approach not only yields more uniform building within a neighborhood, it makes it much easier for homeowners to figure out what they can build. And, because all of a district’s building types are available on all lots (with one exception), it reduces the need for owners of existing, non-conforming homes to seek a variance or special permit. 

Finally (for this post), the current Newton zoning code grants almost all authority for special permits and variances to the City Council. I have been at a Land Use public hearing where one item was Chestnut Hill Square and the next item was a 400 sq. ft. addition to a three-bedroom home. That’s a waste of Council time, energy, and authority.

The new zoning code creates a stepped authority, with the Council only ruling only on zoning changes and special permits that have a city-wide impact. Fewer projects should require special permits. And, the Planning Board is authorized to approve most special permits. Only special permits for large-scaled development will go to the Council.

Simplicity, consistency, and streamlined approval. Thumbs up.

1 I was tempted to use “significant,” but the zoning to enable Chestnut Hill Square back in whenever was pretty big.
2 In a change from my previous practice, I have adopted the use of the third-person plural when the gender of the antecedent is unknown. 
3 There’s a lot of ugly history embedded in that seemingly benign sentence, but I’m going to hold off on a political critique of zoning itself.
4 By-right describes what a property owner can build without approval, other than standard building permits and the like. A common misconception is that the special permit process is unbounded. Zoning defines what requires a special permit and what is also allowed by special permit. The approving agency has to abide those limits. What’s confusing is that big projects like Chestnut Hill Square begin with a rezoning to a classification that allows more intense development and then a special permit to the limits of what’s allowed by that new classification. It might look like a free-for-all, but it is not. (In the case of CHS, there was an even earlier step to define a new zoning classification.)







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