A while back I wrote a post specifically about Ward 5 City Council candidate Debra Waller’s campaigning about parking/zoning issues in Upper Falls (and beyond). This post is a response from Debra Waller about those specific issues – Jerry
Hello, this is Debra Waller and I am writing about a 10/3/21 encounter with Jerry Reilly and his resulting 10/4/21 V14 post “Candidate Debra Waller and Parking.” As I promised in my initial response to Jerry’s post, I have published a newsletter “Spotlight on the Proposed Rezoning’s Severe Parking Restrictions.”
The newsletter has embedded links to Newton’s current zoning code, proposed zoning code, and state law M.G.L. 40A, § 6. This is the state law that gives “grandfathered” protections to property owners against the zoning enforcement for some, but not all, of the features on their properties that become nonconforming due to changes in the zoning code. Many people think that M.G.L. 40A, § 6 provides grandfathered protections against all features on their property, but M.G.L. 40A, § 6 does not appear to protect parking. That’s important because the Newton’s proposed code for parking is incredibly severe, with no parking allowed in the front or rear setbacks of homes, where many residents park. I’m not asking you to believe me about any of this. I am asking you to go to links in my newsletter and read about the proposed rezoning and the lack of state law protections for parking.
The Planning Department introduced a formal 232-page draft of their proposed zoning code and revised map on 10/19/18, almost 3 years ago. Since then, there have been 37 ZAP/City Council meetings, 1100+ Planning Department PowerPoint Slides, and 5 drafts of Article 3, the article on residential districts that includes the parking restrictions. These are not suggestions, ideas, or “options.” These are drafts of binding legislation that the Planning Department has been trying to get through the Zoning and Planning Committee (ZAP) for three years, without a single public hearing, and with all dissenting voices silenced or discredited. The severe prohibition against the front and rear setback parking was in the initial 10/19/18 ordinance draft and has survived through the latest 4/26/21 draft, without the public, and frankly, most of the City Council knowing about it.
I spoke to Jerry Reilly at Newton Upper Falls Village Day on 10/3/21 about the proposed severe parking restrictions which I was publicizing as part of my Ward 5 City Councilor campaign. In addition to a distributed paper flyer about the parking, my booth had copies of the proposed code sections 3.7.1 on the parking and 10.5 on nonconformities of site characteristics, including parking. I did not have a copy of M.G.L. 40A, § 6, but it is mentioned prominently in my flyer (shown by Jerry in his 10/4/21 post) as “Note that parking spaces are not given the same grandfathered protections by state law that structures are given” and there is discussion about, and link to, M.G.L. 40A, § 6 on my website. I also gave Jerry the copies of the proposed code and I wrote down “M.G.L. 40A, § 6” on one of the pages I gave him and told him to look it up. When I said in my previous 10/4/21 V14 response to Jerry’s post that “Mr. Reilly has also grossly misquoted what I told him verbally” I was referring to Jerry not mentioning my reference to M.G.L. 40A, § 6, which I made a very big deal about in our discussion. As for Jerry’s later posting that the severe parking only applies to new buildings, I believe that is false, but you should look at the laws in my Newsletter links to judge for yourself.
The entity that should be giving the written-and-on-the-record guidance to ZAP about these laws is, of course, not you, me, or Jerry. It’s the Newton Law Department – whose studied silence at ZAP on the issue of nonconformity protection for homeowners is also documented in my newsletter. To be clear, this guidance has to be written by the Law Department and presented publicly at ZAP – or it doesn’t count.
Please feel free to contact me with any further questions at [email protected].
Let’s see if we* can clear up these muddy zoning waters.
1. Any changes to any zoning in Newton are only applied to new construction, not existing.
2. Even in new construction, Council works with homeowners on work-arounds if their project can’t’ meet our zoning codes via the special permit process
3. This posting conflates several proposals that are under discussion—including removing a requirement to have parking on-site (parking optional, not required) and a proposal to prevent new driveways in the front yard
4. Front yard parking isn’t what folks in our neighborhoods are calling for. Most think it’s pretty ugly.
5. Our current zoning requires that every new home/unit have at least two parking spaces on site that are not within the setbacks. These can be garage or surface spots. There’s no ban – and none contemplated – on additional spaces in the setbacks.
6. Council has had NO discussions about prohibiting back yard parking. We have had setback or screening requirements since 1953.
7. A common myth is that there is a complete zoning proposal before the Council for consideration. There have been many ideas proposed and draft rules to consider, but not a comprehensive proposal.
Long story short: if you already have a driveway, you can still park there, even if it’s in the front yard. And the city will not and cannot make you tear out your existing driveway.
*I fact-checked this post with my fellow Councilor from ward 5, Deb Crossley. She chairs the Zoning & Planning Committee, and knows the process inside & out.
Thank you Andreae!
I will underline the fact that there is NO complete proposal before Council.
Planning staff write memos, conduct analyses, and draft ordinances for the committee to consider on many subjects, often at our request. All do not fly. Only the Council committee can decide what to put forward as an actual proposal. When we do this, you will know about it if you follow our work in any way. If and when an ordinance is proposed it must go to public hearing/s – but with many subjects, and certainly comprehensive reform, we would also hold citizen events to discuss the issues – as has been the practice for many years.
At the Oct. 25 Zoning & Planning meeting we will be focusing on village centers, which has been our focus all year. At this meeting we will hear for the first time the extensive input from five months of public engagement asking folks how they think their village centers could improve and what is needed to do so. Our consultant Utile will join us, who has been conducting quantitative analyses of all our village centers. There are two more meetings planned this fall to dig into the policy implications of what we learn from both the quantitative and qualitative analyses: November 8 and December 16. Please join us!
Just to clarify: no proposals prohibit front connections of garages or driveways to the street.
Deb Waller is a NERD!!!! (And that is intended in the most endearing and complimentary way possible).
Some things I picked up from her recent debate with incumbent Councilor Bill Humphrey….
https://vimeo.com/632183805
She is hardworking, and will research the hell out of any issue (as noted above re: parking). Deb is fact based to a fault, driven by data and not easily swayed by the latest media buzzwords.
Her views do not wander too far left or right (“watched neither MSNBC nor FoxNews, but prefers to read her news”), and even in her short tenure in Newton politics, has demonstrated a willingness to listen and act on behalf of her constituents. Her desire to bring transparency to City government by making available a record of who dockets what and their voting record is something voters have been clamoring for and if anyone can get this done, I think it’s Deb.
And in Jerry’s prior post, some has cautioned that Deb may be viewed as a one trick pony (parking) and surprising the topic never came up in the debate. Despite the absence of that issue, she did quite well against a professional politician who was described by the moderator in the intros as a, “full time City Councilor”.
Deb has my vote and I hope all Ward 5 voters will take the 40 mins to watch this debate and draw their own conclusions. She would be a refreshing presence on the Council.
All – you may read about the proposed ban on parking in front and rear setbacks in the 4/26/21 draft of proposed section 3.7.1.E.4. at:
https://www.newtonma.gov/home/showpublisheddocument/68610/637547122750105854
This proposed section 3.7.1.E.4. states that. “No parking stall may be located within any required setback area, with the exception that up to 2 parking stalls may be located in a side setback area. No parking stall may be located between the building Front Elevation and the street.”
3.7.1.E.4. is being proposed at the City Council’s Zoning and Planning Committee meetings. Eventually, these proposals will move to the City Council for a vote. The time to examine these proposals is now. If you wait until the City Council vote, that will be too late. Neither I nor any other credible source that I’ve heard has stated that these are proposals that have been put before the City Council for voting. Also – the proposed Article 3 was only “temporarily set down” according to 4/23/21 memo from the Planning Department to ZAP. It will be back.
You may read about the current zoning’s parking restriction of 1 space allowed in your front setback and no restrictions put on rear setback parking in the posted 2/28/20 version of current section 5.1.7.A at:
https://www.newtonma.gov/home/showpublisheddocument/29823/637444168451970000
This current section 5.1.7.A. states that. “No parking stall shall be located within any required setback distances from a street and side lot lines, except that, in conjunction with a single- or twofamily dwelling, 2 parking stalls per dwelling unit may be located within the required side lot line setback distances, and 1 may be located within a street setback distance. However, in no case shall a parking stall be set back less than 5 feet from the street.”
Finally, you may read the state law M.G.L. 40A, §6 about enforcement protections to property owners whose properties are made nonconforming by changes to zoning ordinances, at:
https://malegislature.gov/laws/generallaws/parti/titlevii/chapter40a/section6
I suggest that you read the above code segments and the state law MGL 40A, §6. Then I suggest that you reread the above posts by Councilor Andreae Downs and Councilor Deb Crossley. This reading will make you more informed about parking and, more importantly, more informed about some of the problems within the current City Council.
“a proposal to prevent new driveways in the front yard”
I am super confused by this, because, where else would the driveway go? Unless you live on a corner lot, that’s the only access to the street? Or is the proposal that everyone would have to have one of those back access mews situations, like in Oak Hill Park?
Hi Newton Resident.
Proposed Section 3.7.1.E.4.allows driveways in the front setback. You just can’t park in it. Current Section 5.1.7.A allows one parking space in the front setback.
Proposed Section 3.7.1.E.6 also limits one-way driveways to be no wider than 12′ at the property line and this maximum must be maintained all back 5′ to 10′ from the property line. Current section 5.1.7.C allows driveways to be between 12′ and 20′ at the entrance or exit.
Hi newton resident:
As I said before: of course you will still have driveways from the street through to your garage or side parking. Nobody on the Council is talking about taking that away. It would be silly and impractical
The notion that our elected representatives would enact a policy that prevents their constituents from parking in their own driveways is one of the weirdest political attacks I have ever heard. It’s bizarre.
Hi Garry Miller – Please read the Newtonma.gov code purposed vs. current extract links that I have provided in my earlier 9:28 am post. These public records back up what I am saying 100%, I’m not attacking. I’m documenting.
The prohibition against parking in the front and rear setback is proposed, not enacted. It was proposed by the Planning Department in their initial 10/19/18 proposed ordinance draft, presented to the Zoning and Planning Committee on 10/22/18. These prohibition have lasted for 37 meetings, 5 drafts, and 1100 power point slides until the 4/26/21 ZAP meeting when Draft 5 of Article 3 was presented.
Again, these are public records on the NewtonMa.gov website. I did not make them up. And again, I’m not asking anyone to believe me personally, I am just asking you to read the public records.
I did in fact waste an hour of my life researching your claims and I believe I have stated them accurately. They defy reason.
I’m sorry, Garry Miller, but I believe my “claims” are backed up by the quoted text, which is, in turn, backed up by the provided links to public records. What have I said that is inaccurate?
The current code allows one parking space in the front setback and places no parking space limits in the rear setback. The proposed code prohibits parking spaces in both the front and rear setbacks, That’s what public record code segments show. And that should not take an hour to “research.”
I have translated your dense references into plain English. Do you disagree that the bottom line of what you claim is that people would be legally prevented from parking in their own driveways?
You are fond of referencing M.G.L. 40A, § 6. For the benefit of the audience, I will quote the very first line of said section.
“Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun…”
After that line, this section does not mention parking or driveways at all, so they cannot be possible exceptions. Note that the quoted line refers to both structures *and* “uses”. Your contention must then be that a driveway is not a “use”. I believe this is incorrect.
Hi Garry Miller
No, a driveway is not a “use,” in the way that zoning defines “use.” For every zoning district, there will be a specified “Use Table” in the zoning ordinance, where uses are the primary use of the property such as “Single-Family, detached,” or “Lodging House” or “Nursing Home,” etc. It does not mean every secondary way that your property has ever been used. The Use Table says whether the use can be allowed “by right” or only allowed with a “special permit” or some other type of regulation. So, for example, in the current zoning, if you wanted to open a new lodging house, the Use Table would not allow this in a single residence district (SR1,SR2,SR3), but would allow it with a Special Permit in a multi-residence district (MR2,MR3,MR4). If you already had an older lodging house in SR1 prior to the code being adopted, however, then you could keep the lodging house under MGL 40A, §6, because uses are protected under MGL 40A, §6. The Use Table is in every zoning ordinance, not just Newton’s.
In the current zoning, you can see the Use Table on page 46 in 3.4.1 “Residential Districts Allowed Uses.” In the proposed zoning, you can see the Use Table on page 39 in 3.6.2 “Use Table.” Again, residential parking is not in the Use Table.
Current Zoning:
https://www.newtonma.gov/home/showpublisheddocument/29823/637444168451970000
Proposed Zoning – Article 3:
https://www.newtonma.gov/home/showpublisheddocument/68610/637547122750105854
This distinction between “use” and parking as a site characteristic is even more explicit in the proposed code Article 10. In the proposed code, “Nonconforming Uses” are in section 10.4 and “Nonconforming Site Characteristics” are in section 10.5 and are defined there as “A nonconforming site characteristic is an improvement on a given lot, such as parking, landscaping, paving, etc. that is not a building or a structure, that was lawfully established but that no longer complies with applicable standards because of the adoption or amendment of this Ordinance.” Proposed Section 10.5 also allows “Reviewing boards or officials may require nonconforming site characteristics to be brought into partial or full conformance with the provisions of this Ordinance as a condition applied to the grant of a discretionary or administrative approval.” Proposed Section 10.5 could not require nonconforming parking to be brought into partial or full compliance if it was protected under MGL 40A, §6.
Finally, Garry, I do want to point out again that the Planning Department is proposing a major increase in residential parking restrictions, which would make them the most severe in the state for municipalities with densities > 2K people/sq. mile. And the Law Department is maintaining a strict silence in ZAP with regard to whether parking is protected or not under MGL 40A, §6. The tone of your posts seems angry at me, however, and I’m not sure why. While I am running for City Council, that is essentially a volunteer position, since in only pays $15.5K a year. I don’t think I deserve your anger for taking the time to research this important topic and post the supporting citations for the public to read.
I *am* angry at being sent down this absurd rabbit hole. If I stipulated that you are correct in every aspect of your argument, the end result would be absurd, there would be a massive outcry, and it would be fixed.
I remain confident that you are incorrect.
Parking is not a “primary” use under zoning. It is an “accessory” use. In the link you provided for the current zoning parking is not listed in section 3.4.1 because that section defines “primary” uses allowed.
In section 3.4.2, part A, item 3 explicitly defines parking as an accessory use allowed by right. Therefore existing driveways would be grandfathered in (even if it weren’t explicitly listed there it would still be allowed because driveways are a “proper and usual” use with homes). In addition, two sitting city councilors, one of whom is an architect by trade, have assured us as well that it’s grandfathered in.
Section 10 simply states what we all know about zoning and building codes – if you have a grandfathered non-conforming use and you create plans to substantially change what is there, you have to bring it into compliance. Nothing new about that!
The various drafts have not yet reacted to the recently passed state law either (which encourages less parking). In addition, the city has been engaged in a wide-ranging process of engagement with the public, and the drafts do not yet reflect any of that either.
A careful reading of the “current” zoning shows that my own driveway already violates the zoning as it is less than 5 feet from the lot line. I am not concerned about this at all, because I know that it is grandfathered in.
You have never answered if your contention is, in plain English, that the government is coming to take your driveway away. It seems to me that this is exactly what you are saying.
As to parking in general, we need less of it. There are hundreds of generally unused parking spots in my neighborhood alone (I have actually wandered the neighborhood, taken pictures, and counted them). There are at least 2 parking lots in Upper Falls which are required by minimum parking requirements and which are never used at all. The one across from the Mall here is actually blocked off so you *can’t* use it. I would like more walking, biking and other pedestrian access, and less parking. I enjoy walking around the village, and would like to have to dodge cars less often when doing so. Furthermore, unnecessary empty parking lots contribute to excess runoff which harms water quality leading to algae blooms and other unpleasant side effects, and contribute to the “urban heat island” effect. Upper Falls currently is among the most affected areas in the city for “urban heat island” effects.
So I will leave it at that, we can agree to disagree on the policy aspect, that’s fine. I believe you are wrong on the facts.
I still have a few questions.
“As I said before: of course you will still have driveways from the street through to your garage or side parking”
So what exactly are the “new driveways” that the proposal would prohibit? This is a legit question, not snark, I’m just not understanding the terminology here. Does this mean those little side driveways that extend past the width of the garage some people have? How do you determine whether that’s intended for parking and not another use (lots of my neighbors have those and have put up basketball hoops or patio seating)?
“Proposed Section 3.7.1.E.4.allows driveways in the front setback. You just can’t park in it. Current Section 5.1.7.A allows one parking space in the front setback.”
(Another non-snarky intended question) What constitutes “parking?” Like, is there a time limit – you can leave a car in a driveway for a few minutes, or a few hours? How do they check that? If my mother comes over to visit is she allowed to park her car in my driveway while she’s here, or do we then have to park a car in the street? What if she’s visiting for a few days, and it’s winter so she can’t park in the street?
And how does this get enforced? No parking areas on streets etc. are enforced by the police/meter readers. Will they be driving around to look for cars parked in driveways and then, looking up the age of the house to see if it’s been grandfathered in? Do we issue parking tickets? Or zoning violations?
Again, I am honestly not trying to be snarky, I’m just trying to figure out the logistics of this.
Seriously Garry?
The proposed code lets you keep your driveway, but you can’t park on it in the front or rear setback. I’ve clearly quoted the proposed code saying just that. The current code doesn’t let you park in the first 5′ of your driveway, but the driveway obviously still exists there. I’m sorry, but I think that both you and Councilor Downs are deliberately exaggerating what I have said and then arguing against that exaggerated version.
Parking does not appear to be protected by MGL 40A, §6. The entity that should be giving the written-and-on-the-record guidance to ZAP about this law is, again, not you, me, Councilor Downs, or Councilor Crossly. It’s the Newton Law Department. They have not done this even when explicitly asked by City Councilors to give guidance about the greatly increased nonconformities that would occur with proposed Article 3. And again, this guidance has to be written by the Law Department and presented publicly at ZAP – or it doesn’t count.
I’m sorry that you are angry about my quoting what is in the current and proposed code – and the applicable state law about nonconformities. I know that Councilor Crossley and the Planning Department have worked very hard to obscure this, but I think residents should know anyway.
Hi Newton Resident:
The proposed code doesn’t prohibit driveways. It places stricter limits on parking in driveways. And it also places stricter limits on driveway widths at the entrance.
Right now, in the current zoning, residents are only allowed one parking space in the front setback and it must be 5′ back from the lot line. If your neighbor, for example, keeps parking more than one car in the front setback, then you can file a “request for zoning enforcement” with Newton’s Inspectional Services Department. ISD then has the power to tell your neighbor to stop doing this or pay a fine. That power would be increased if residents were not allowed to even park one car in their front setback. That’s one way things are enforced but the city can also enforce things without a request.
The enforcement of the proposed front setback ban was briefly discussed at ZAP. I’m not actually sure that ZAP fully understood the rear setback prohibition, so that was never discussed.
We face some many genuine challenges. I wonder why someone would want to scare voters, or base their campaign on one issue; something we all know will never happen.
Since V14 is going to be archived, I wanted to add a comment to two posts involving me personally (10/02/21: “Candidate Debra Waller and parking” and 10/14/21: “Debra Waller parking redux”).
On 10/19/18, ten months after Mayor Ruthanne Fuller took office, her Planning Department submitted a 232-page “Draft Zoning Ordinance” to the City Council’s Zoning and Planning Committee, ZAP. This was a comprehensive rezoning document, containing hundreds of huge zoning changes for Newton.
One of the biggest zoning changes was in “Section 3.7: Parking Requirements in the
Residence Districts.” This section removed all parking requirements for single and two-family residences and imposed new, and uniquely severe, restrictions on the allowable parking for one and two-family residences with the specification that “No parking stall may be located within any required setback area, with the exception that up to 2 parking stalls may be located in a side setback area. No parking stall may be located between the building front elevation and the street.” [Exact Quote.] To be clear, these new restrictions mean that no surface parking would be allowed in the front of a home, even though most Newton residents park in front of their homes. This is a severe restriction compared to the current zoning which allows parking one vehicle in the front setback, as long as that vehicle is 5’ from the street. Similarly, the new restrictions mean that no surface parking would be allowed in the rear of a home, to a depth of 30’ to 40’ from the rear lot line for most single/two-families in Newton. Note that these new front/rear/side setback restrictions are only against surface-parking. Residents can still have driveways, but the proposed new zoning means they are no longer free to park on all driveway locations. Inexplicably, the proposed new zoning also allows detached garages in rear setbacks, just no surface parking in the rear setbacks. Furthermore, a review of the zoning codes of the 60 densest Massachusetts municipalities shows that only 6 extremely dense municipalities also forbid front setback parking, while NO municipality forbids rear setback parking, making Section 3.7’s proposed parking restrictions UNIQUELY severe to Newton.
The potential impact of these proposed parking restrictions on CURRENT Newton residents is increased by another new, and uniquely severe, section of the draft document, “Section 10.5: Nonconforming Site Characteristics.” This section first defines a nonconforming site characteristic as “an improvement on a given lot such, such as parking, landscaping, paving, etc. that is not a building or structure, that was lawfully established but no longer complies with applicable standards because of the adoption or amendment of this ordinance.” This section then specifically allows Newton to REQUIRE nonconforming site characteristics, which include parking, to “be brought into partial or full conformance with the provisions of this Ordinance as a condition applied to the grant of a discretionary or administrative approval.” [Exact Quote.] Importantly, this power to REQUIRE conformance of site characteristics, including parking, does NOT appear in the other proposed code sections “Section 10.3: Nonconforming Buildings and Structures” and “Section 10.4: Nonconforming Uses.” Because of Section 10.5, I believed that parking, and other sited characteristics, were not protected as an existing nonconformity. In 2022, I obtained access to the Westlaw database, where I found NO MENTION of “nonconforming site characteristics,” however, only to nonconforming structures and uses. To me, this means that the legality of Section 10.5 is unclear, as it was to some readers of this original 2021 post. The Newton Law Department should issue a written opinion on Section 10.5, before Section 3.7 is considered again. However, even if 10.5 is removed, it will be almost impossible for any resident to prove that they had been parking in a particular place on their property before the ordinance was passed, and to prove this in perpetuity, meaning that 3.7 can still be used to restrict current resident parking.
Unfortunately, I have personally found that Newton Government should often be mistrusted, because it is so completely subservient to the wealthy interests that run Newton, especially Newton’s nontaxpaying nonprofits. It would be catastrophic for our family to lose one of our home’s two parking spaces, which would be entirely possible if Sections 3.7 and 10.5 were passed. I could easily see this new government power being used against me, or anybody else, who opposes Newton’s wealthy interests. This is one reason that I was so vehement about this parking issue.
The comprehensive rezoning draft, including sections 3.7 and 10.5, was temporarily set aside in 2021, but it will be taken up again after the Village Center Overlay District (VCOD) rezoning process is complete. When this happens, I hope residents pay closer attention to proposed rezoning restrictions that can be used AGAINST them, such as Sections 3.7 and 10.5. I also hope voters in the upcoming City Council Election pay close attention to how Councilors Downs and Crossley repeatedly misrepresent the proposed written code.
Link to 10/19/18 Comprehensive Rezoning Draft, including Sections 3.7 (pg. 54/232) and 10.5 (pg. 209/232).
http://www.newtonma.gov/home/showpublisheddocument/18995/637241652176270000