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.)
Sean,
Thanks so much for your great post. I summarizes the goals of the rezoning quite well
I would just like to discuss zoning affects on home prices. Since most homeowners largest financial asset is their home, I think its worth discussing, with hensity, jobs, overcrowding as a related topic.
– I would predict that current home owners in the ‘commuter’ district will see the largest increase in values as developers will be lining up to tear town or add on. Whether this value remains I guess depends on possible negative impacts of high density
– I predict homes surrounded by the commuter district (but just outside) will increase in desireability. Take north Albemarle field as an example, it becomes ‘surrounded’ by the ‘multi-family’ housing over time as developers take hold. There will always be a segment of population who wan ‘single family’ home close to (15-20 mins) walk to downtown/commuter rail.
– school issue aside, if the thriving businesses move in (stores, restaurants, tech firms) then housing within 15 mins walk will become more desirable. however retail is doing quite bad everywhere, this is a huge question mark.
– if we build too much, too fast, we could be left with a glut where desirability is less because schools, crowding is worse but prices are high (because developers all built luxury units)
The thing that irks me still is what seems to be a waste of 500000 on the Principle Group. I had long discussions with them on their proposal fo4 the city to use form based codes. As it was explained to me, the form based code preserve the character of a neighborhood by requiring the new development of the building to match the form of the existing building, but the use can change. So, for instance on Washington Street, what is now a single or 2 family home can become an office, but would have to keep the “form” of a home. Ok fast forward to today, and, what exactly did we pay 500000 for ( no bid)???? What if anything, will become of their recommendation along this line? Did we get anything out of this, or was it Kabuki Theatre planning?
Four footnotes on a blog post !!! Where’s your bibliography ?
Sean-This was very helpful. I’ve not been able to attend a zoning meeting yet, but your explanation, particularly from the point where you explain the impact of FAR, was clear and concise.
In regards to property rights, there is tremendous value to continuity. We all bought homes with certain understandings about what we and our neighbors can and cannot do with our properties. Property rights should not be changed unless there are non-trivial problems we are trying to solve, AND the proposed changes are markedly superior to the status quo.
There will undoubtedly be unintended consequences when you throw out the old zoning code and institute an entirely new one. There will also be winners and losers as stated in a previous post. Most people aren’t really paying attention, so they won’t even realize they’ve been “down-zoned” until it’s too late to do anything.
I don’t think we should jump into a into a new system just because it’s “new and improved.” I’d rather see specific enhancements to the existing system, if needed, rather than making wholesale changes.
Well I’ve been down zoned from M1 to R3. Once again. The north side is going to bear the brunt of the density increase, while those already in R1 will take on no increased density. The effect is to increase the density in already dense areas such as Newtonville. I met today with Susan Albright, James Freas, and Rachel Nadkarni for an hour or so to discuss my property and my neighbors. Basically context based zoning, as they explained it to me, means that if you can find 3 other properties within 500 feet of your property similar to what you want to do- say go from a two family to a three family- you can. Of from single family to 2 family, or even an apartment building. Those of us in Newtonville and other dense areas will see an increase in the area of density- not density per square foot, but more density over the entire area as more land moves from single to double, triple, or apartment buildings. Note that if I were to buy a two family home, I would not ( in R3 ) be able to turn it into a single family home. I believe the net effect over time will be to exaggerate the current density – that is, there will be more and more denser building in Newtonville than in other areas. This will put an increased burden on traffic, schools, roads, noise etc. and the already less dense areas will stay that way. It’s also a class warfare issue- the more affluent areas will stay larger single family homes, and the less affluent areas will become more crowded as the existing single family homes get converted to double, triple, or apartment buildings. That’s my take after talking to the above folks.
My issue on all of the rezoning is a complete lack of transparency to current homeowners. There are ward meetings, and some info on the City website. This is totally inadequate for a complete rezoning of the City. The City manages to send out tax bills and water bills to every homeowner – these should either have street specific inserts outlining proposed changes, or there should be a separate mailing. These changes are non-trivial. The City seems more motivated to pass a new code by year end than to inform homeowners what is being proposed for their investments, which for most people represents their largest asset. And, the large projects like Riverside, Needham Street, and Newtonville get the attention while this is underway. The proposed R3 code says a lot of nice things but then says that notwithstanding any of this you can build apartment houses, apartment buildings, or civic use buildings with a special permit and by the way, you can also get a special permit to waive off street parking requirements. In terms of affordable housing, there is a home on a 14000 sf lot on our street that a developer intends to tear down – and he paid $1.5M last June. Under R3 we have no idea what he might propose to build (so much for the principle of predictability) but I can assure you that given his investment it will not be ‘affordable.’ To me this train needs to be slowed down, and people need to be genuinely engaged. It feels like this is being done to us rather than with us and on our behalf. There is nothing in the proposed R3 that leads me to believe there will be fewer special permits, which is the bane of our current zoning. special permits turn neighbor against developer, neighborhoods against officials we are paying (ISD, ZBA), neighbors against neighbors, and have a serious financial cost to neighborhoods that cannot compete with dollars against developers. How can we slow this down and ensure good long term decisions? I’m not seeing any leadership.
@Robert: I don’t disagree with your point about how important this is. But I’m not sure it’s fair to criticize the city for not trying to promote this. It seems like it’s been promoted extensively.
Of course, in an ideal world, the TAB would devote resources to really explaining what’s happening and would have covered this years long process every step of the way. That’s what’s really missing here. But that’s not the city’s fault.
And let’s face it, by its very nature, zoning is complex and confusing. Yes, it’s always great to boost civic involvement. But this is why we have elected leaders. With issues this complex, we need to elect representatives who capacity to understand this to make wise decisions on our behalf.
I agree with Robert wholeheartedly. The city is proposing to change the property rights of all property owners, and this should not be done with just invitations to attend public hearings, which few people will ever attend.
Just as importantly, the city is proposing to dramatically change the population and density of the city. We need to see an analysis of the financial implications of this before we can make a judgment on the wisdom of this. So far, none has been presented. No zoning changes should be finalized until this analysis has been completed and debated.
If we’re going to leave this to the city councilors to debate and decide, then that should take place after the 2019 elections so candidates can tell us their positions on the proposed changes.
Well you have to hurry and contact your councilor s- the second draft is coming up soon.
Greg, respectfully I don’t agree about communication. Yes, this should be getting front page coverage from the TAB. At the same time, an initiative that directly impacts every homeowner should be completely transparent and brought to people’s attention and this is the City’s responsibility – there was been no ‘extensive’ communication to date. I’ve spoken with the Planning Dept and they actually agree. We found out by happenstance via an email invite to a ward meeting that one of our councilors forwarded to a limited set of email addresses they collected over time. The ward meeting had about 100 people, and Ward 6 has perhaps thousands of homes. I agree with a comment that this whole effort should be held up and made a major policy debate in the coming election. In fact, one councilor told me that the council was trying to rush to get this done BEFORE the election.
It’s well know that I’m a cynic. But as Frank Zappa once said,I’m not more cynical; I just have more evidence to back up my cynicism…..
. But it seems to me they want this to be passed without too much publicity ( everyone to a person I have told about this knew nothing about it, that’s 5 or 6 people ) because they know there’s going to be objections. And, if I were them, that’s exactly what I would do….
yes I agree Rick – I’m getting a ‘something is better than nothing’ vibe from the City employees and councilors I’ve spoken with. And, I’ve spoken with a senior exec from a large planning co (not Sosoki [sp?] who did the recent Newton work) who told me that mailings to residents about proposed zoning changes was in their view ‘the norm.’ Either the current draft needs to be changed to reflect the public’s concerns, or it will take a massive number of residents to descend on the Mayor and Council demanding that this effort be stopped and an effort that is inclusive begin.