Inclusionary zoning to promote housing is focus of conference

More than 50 local officials gathered in Plymouth on March 18 to discuss ways to promote the development of low- and moderate-income housing through effective zoning ordinances and bylaws.

At a conference sponsored by the Massachusetts chapter of the American Planning Association, local officials and panelists discussed “inclusionary zoning,” which encourages or requires affordable housing development and can include incentives for developers as well as voluntary participation.

Inclusionary zoning is a regulatory mechanism and may not be appropriate for every community, noted Judi Barrett, chair of the American Planning Association of Massachusetts Community Development and Housing Committee and director of Municipal Services for RKG Associates.

Other tools, such as Chapter 40R “smart growth” overlay districts, or affordable housing projects developed under Chapter 40B, may be more effective for certain communities, Barrett said.

Gareth Orsmond, an attorney with Rackemann, Sawyer & Brewster, noted that developers want to be involved in housing projects in municipalities with zoning and permitting processes that involve certainty, flexibility, a process that ends, and a process that ends without appeals or with limited appeal rights.

Developers also want to be involved in something big, preferring larger developments to smaller projects, because the finances work better on a larger scale, he said. He added that developers prefer working in municipalities that are zoned for by-right land uses because development there is simpler, with less risk and fewer avenues for challenges.

“There is a fear of by-right uses, and you need to let go of that if you want to maximize development,” Orsmond said. “Every zoning district has a by-right use.”

Special permits, on the other hand, present a higher risk to developers in that they can be denied or appealed, he said, and are discretionary in nature.

Michael Roberts, senior vice president at AvalonBay Communities, concurred, noting that the most important consideration for site selection for a major development is certainty about the playing field.

Philip Giffee, executive director of Neighborhood of Affordable Housing, highlighted the need for affordable housing development, noting that nationally, half of all renters are spending more than 30 percent of their income on rent. He agreed that municipalities should work to get the permitting process to move smoothly and consistently.

George Hall, an attorney with Anderson & Kreiger, noted that nationally, there are constitutional limits on what conditions may be imposed on developers. The Massachusetts Zoning Act (Ch. 40A) anticipates what is known as a Euclidean zoning scheme, with uniform uses within a zone and property owners treated in a uniform manner.

Several dozen municipalities in Massachusetts have adopted inclusionary zoning, but there is no statutory basis for it in state law. Legislation filed this session could, if passed, create statutory authority for the practice.