arlington master plan AAppppeennddiixx II:: ZZoonniinngg AAuuddiitt 242 1359 Hancock Street, Suite 10 Quincy, MA 02169 Tel: 617-847-8912 Fax: 617-847-8914 E-mail: [email protected] MEMORANDUM TO: Carol Kowalski, AICP Laura Wiener, AICP FROM: Judi Barrett, Director of Municipal Services DATE: July 22, 2014 SUBJECT: Zoning Assessment As part of our work on the Master Plan, we agreed to provide the Town with a zoning diagnostic: an analysis of the Zoning Bylaw (ZBL) for clarity, internal consistency, format and structure, consistency with the Zoning Act and current case law, general ease of use, and relationship to the stated goals of the new Master Plan. The attached technical memorandum presents our assessment of Arlington’s ZBL. We discussed portions of this assessment in the Land Use Working Paper, which we submitted to you and the Master Plan Advisory Committee (MPAC) on December 31, 2013. Thus, some of the content of this memo will be familiar to you and the MPAC, and some of the content is new. Massachusetts cities and towns have three primary land use management tools for regulating growth and change. They include: (1) the master plan or comprehensive plan, (2) zoning, and (3) subdivision control. Arlington is scheduled to complete the new Master Plan this year, so a zoning review is timely. In order to implement the Master Plan, Arlington will need to update and revise the ZBL. In its present form, the ZBL does not prescribe a vision of the Town that matches the goals adopted by the MPAC. The existing ZBL has all of the traits of a frequently amended bylaw that is nevertheless fashioned around an antiquated framework. This “quilted” approach has resulted in a bylaw that is in many ways disjointed and confusing, and may be vulnerable to legal challenge. The ZBL may have served Arlington well in the past, but it has become evident that deficiencies exist and improvements need to be made. The ZBL was originally adopted in Economic Planning the 1920s and since then, Town Meeting has periodically amended it. As with any other and zoning bylaw we have reviewed for other towns, Arlington’s ZBL accumulated some Real Estate Consultants inconsistencies and duplication as it was amended over time. It also has provisions that Arlington Department of Planning and Community Development July 22, 2014 Page 2 may have been acceptable in the past but are not consistent with the Zoning Act, G.L. c. 40A, or current case law. In situations like this, the most appropriate way to proceed is a two-step zoning revision process: recodification first, and second, comprehensive zoning (and map) amendments to implement the policy objectives of the master plan. It is always tempting to take on the latter as a first order of business because town boards, the general public, and certainly property owners and developers find policy changes more interesting. However, adding new tools to a deficient foundation is a prescription for problems. Communities invariably confront this when they begin the recodification process and find out that fixing basic wording problems can be far more complicated than they expected. For budgetary purposes, we believe the Town should appropriate $35,000 to $40,000 in FY 2016 to recodify the ZBL. Since recodification involves no major policy changes, it does not have to be designed or conducted as a “meeting-intensive” project. Recodification is typically done by a consultant working with a committee or group of “expert” advisors, periodic work sessions with the Arlington Redevelopment Board, the Board of Appeals, and staff, and perhaps with two or three significant progress meetings for the general public. Unless there are map errors that have never been identified, recodification is typically a six- to nine-month endeavor. Any consultant embarking on a recodification assignment will conduct an independent diagnostic, but this memo may be helpful to the consultant the Town decides to hire. Arlington Department of Planning and Community Development July 22, 2014 Page 3 A. FINDINGS  In its present form, the Arlington Zoning Bylaw (ZBL) is difficult to navigate and often difficult to interpret.  There is an immediate need to reorganize and reformat the ZBL so that its requirements are easier for the public, town boards, staff, and applicants and their representatives to understand. Additional and better illustrations would help everyone.  The ZBL should be reorganized and reformatted to clarify and make obvious the procedures for site plans, Environmental Design Review, special permits, variances, appeals, rezoning, and so forth.  As written, the ZBL will not be able to implement key goals of the new Master Plan.  Setbacks and other dimensional and design standards should be adjusted to facilitate infill development. The suburban standards in the ZBL may be appropriate for lower- density residential and neighborhood business areas, but they are poorly suited for infill and mixed-use areas. In particular, the Town needs to revisit its building height regulations and may want to revisit its floor area ratio (FAR) standards. FAR has some purposes, but it is a fairly blunt tool and not effective for regulating building form.  The Town’s off-street parking regulations need to be overhauled and modernized to address current trends in land use, economic development, and transportation planning. Consideration should be given to establishing maximum instead of minimum parking requirements. Even if Arlington decides to maintain the present minimum-number-of spaces-per-unit approach, off-street parking requirements should be waived for very small business establishments and significantly reduced for upper-story offices.  The Town should give staff authority to conduct Site Plan Review for small projects that currently trigger Environmental Design Review (EDR). This could help to improve the development review process and encourage reinvestment in older areas of the Town.  Reliance on special permits creates uncertainty for developers and their neighbors, as well as burdensome administrative processes and expenses. It also complicates accountability in the permitting process and creates a high risk that applicants will not be treated equitably.  The ZBL should address emerging trends in land use and development. In addition to needs for greater housing diversity and mixed use development, the ZBL should Arlington Department of Planning and Community Development July 22, 2014 Page 4 address urban agriculture, use of alternative energy sources, and neighborhood-based businesses to ensure that these uses are provided for and compatible.  The present definition of “family” is more accommodating than many such definitions in other communities, but it should be reviewed and considered with federal Fair Housing Act (FFHA) regulations in mind. The limitation of four unrelated individuals may work for some types of households, but it probably does not work for a majority of group homes for adults with disabilities and some types of “non-traditional” households composed of related and unrelated people. Any zoning revision process conducted today needs to be conscious of recent and proposed FFHA regulations, especially as they pertain to families and the need for reasonable accommodation of people with disabilities. B. ZONING OVERVIEW The Arlington Zoning Bylaw (ZBL) consists of twelve major sections:  Article 1: Title, Authority, and Purpose, establishes the ZBL’s scope of authority (Section 1.02) and purposes (Section 1.03). The scope of authority section refers to G.L. c. 40A, the Zoning Act, but omits any reference to the Home Rule Amendment and Chapter 808 of the Acts of 1975. The Home Rule Amendment in particular should be identified in the scope of authority to clarify that the Town’s zoning is not limited (or “disabled”) by Chapter 40A.  Article 2: Definitions, includes definitions of terms used throughout the ZBL.  Article 3, Establishment of Districts, identifies the Town’s nineteen use districts, provides a purpose statement for each district, establishes the Zoning Map, and describes how zoning boundaries should be interpreted. The overlay districts (floodplain and inland wetlands) are not identified in Article 3.  Article 4: Interpretation and Application, contains provisions that are typically incorporated in other sections of a ZBL. This article explains the ZBL’s relationship to other laws and regulations and its applicability to uses and structures that existed prior to adoption of the ZBL (and subsequent amendments). There is also a section that addresses mixed uses on a single lot (Section 4.04). This paragraph has relevance to a discussion later in this memorandum.  Article 5: Use Regulations, is primarily Sec. 504, the Table of Uses. This is an 18-page display of use regulations organized by major class and some sub-classes (residential, institutional, agricultural, public/recreational, utilities/transportation, commercial, personal/business services, eating/drinking establishments, office, wholesale, light industry, and accessory uses). Arlington Department of Planning and Community Development July 22, 2014 Page 5  Article 6: Dimensional and Density Regulations, which consists of a Table of Dimensional and Density Regulations with table notes and several pages of text regulations as well. This section is among the more challenging sections of Arlington’s ZBL, in part due to format and in part because it has been amended so many times. In order to understand what can be done with a given parcel of land, one must read both the Table and text because the text sections contain interpretation, exceptions, additional requirements, and so forth. In addition, Sec. 6.08, Large Additions in Residential Districts, has an impact on extensions or alterations on substandard lots that are otherwise governed by Article 9.  Article 7: Signs, which contains the regulations on number and size of signs for each district in Arlington. There are sign regulations for permanent and temporary signs. This chapter of the ZBL appears to have been amended many times and needs to be overhauled. Some consideration should be given to reorganizing the material in tables.  Article 8: Off-Street Parking and Loading Regulations, consists of a table of parking regulations, i.e., minimum required number of vehicular parking spaces per dwelling unit or per sq. ft. of use on nonresidential lots. This article also has bicycle parking standards, which is commendable for Arlington because many suburban zoning bylaws are silent on bicycle parking. In Arlington, bicycle parking requirements are triggered by Environmental Design Review (discussed later in this memo), and the number of bicycle spaces is generally a ratio to number of vehicle spaces.  Article 9: Nonconforming Uses, Structures, and Lots tracks the provisions of G.L. c. 40A, § 6, for the continuation, expansion or alteration of uses and structures that lawfully pre-existed the effective date of the ZBL and subsequent amendments to it. This section appears to allow some types of projects that would otherwise be reviewable under Bjorkland v. Zoning Board of Appeals of Norwell (2008). We recommend that Town Counsel review Article 9 for consistency with recent case law. There have been several recent Appeals Court decisions that may have bearing on an update of Article 9.  Article 10: Administration and Enforcement, is a fairly standard section that describes the requirements for a building permit, outlines the powers and duties of the Board of Appeals (generally in concert with G.L. c. 40A, § 12), and appeals. The Town has inserted permitting flow charts for special permits and variances at the end of Article 10.  Article 11: Special Regulations, is a “catch-all” section for provisions that do not have a clear home elsewhere in the ZBL. Article 11 includes the Town’s floodplain and wetlands district regulations, as well as Arlington’s Environmental Design Review (EDR) process. EDR is a “super site plan review” special permit process that consolidates the operational, environmental, and architectural and site design Arlington Department of Planning and Community Development July 22, 2014 Page 6 components of project review under one board, the Arlington Redevelopment Board (ARB). It applies to construction on any site bordering the Town’s major roadways; construction of any residential use with six or more units; inns, hotels, motels exceeding certain size thresholds; nonresidential uses over 5,000 sq. ft. in residential districts; outdoor uses (not defined), and temporary signage at a seasonal athletic facility. It also applies to the Planned Unit Development and Multi-Use Districts, and parking facilities in the Open Space District. Article 9 also provides Arlington’s inclusionary housing requirements. Arlington 15 percent of the units in new developments and other projects subject to EDR to be affordable units eligible for the Chapter 40B Subsidized Housing Inventory (SHI).  Article 12: Amendment, Validity, and Effective Date, is a standard section of any zoning ordinance or bylaw. It specifies the procedures for zoning amendments (consistent with G.L. c. 40A, § 5, and contains a severability clause (in the event that some portion of the ZBL is invalidated, the rest of the ZBL will still stand). There is nothing particularly unusual about the organization of Arlington’s ZBL. It needs reformatting for ease of use, and some paragraphs should be relocated. However, the ZBL’s format and organization do not present as many problems as some of its substantive provisions. The following sections of this report provide a discussion of issues identified during our review. Several of these issues have been pointed out at MPAC meetings, in discussions with Town staff, or in the Land Use Working Paper (12/31/2013). 1. Format and Organization A ZBL should be a usable reference document for the average resident. Town officials and staff, developers, attorneys, and engineers and architects need a well-organized code, but the format and organization of a ZBL should make it possible for reasonably motivated residents to find the rules that apply to their own property and the property next door. A clearly written ZBL can still be “unfriendly” to users if it is poorly organized or formatted in a way that makes it hard to find information. Techniques to make a ZBL readable to a wide variety of audiences include:  Providing a table of contents with article numbers, section numbers, and the numbers or letters for major subsections;  Providing an index;  Adopting and applying a consistent numbering system and indenting each tier of a numbered outline;  Following a consistent approach to cross-referencing;  Citing the dates of adoption and amendment; Arlington Department of Planning and Community Development July 22, 2014 Page 7  Providing page layouts that include running headers, page numbering, the current date of the ZBL, and plenty of white space;  Using tables and illustrations;  Using bold type to signal major headings and sub-headings;  Locating all definitions in a single section or, alternatively, listing all defined terms in a single section and for definitions located elsewhere, cross-referencing those sections so the reader knows how to find them; and  Adopting a framework for dividing the contents of a ZBL into coherent sections. Arlington’s ZBL adheres to some of these principles. For example, the major section headings are highlighted (in bold type), pages are numbered, and the section numbering system is reasonably consistent. In most cases, amendment dates appear in appropriate (easy to find) locations as well. However, the ZBL omits some of these features, too. All of the existing formats appear in fairly dense page layouts that lack running headers. Except for Article 2, Definitions, the ZBL contains very few illustrations. Some reorganization and consolidation of sections would help to improve the ZBL. In general, the Arlington ZBL would meet the needs of a wider group of users if the document were designed for readability and ease of access. 2. Tables Arlington uses tables to present some comparative information, such as use regulations and density and dimensional standards. Tables have some advantages. For example, a table reduces the risk of error as a ZBL is amended over time. If a use is listed in a table of use regulations as permitted in several districts and the community wants to convert it to a special permitted use in one district, the table can simply be amended by replacing “P” with “SP” in the column that applies to that district.1 Tabular formats also make efficient use of space. Tables can be particularly effective at conveying information if they include lines, colors, or shading, alone or in combination, as an aid to the reader. Multiple columns and rows should be delineated in some manner or the table will be difficult to interpret. Simple techniques such as shading applied to every other column, or graduated shading to depict lower to higher density, provide graphic reinforcements that can help a reader interpret standards and understand relationships between them. Arlington’s existing Table of Use Regulations contains only one type of delineation: vertical (column) separators between groups of use districts. The table includes a column for each district and a total of nineteen 1 By contrast, for an outline format that follows the traditional hierarchy of most to least restrictive districts with “nested” uses, amending a use provision in a more restrictive district could lead to unintended consequences in one of the less restrictive districts. Arlington Department of Planning and Community Development July 22, 2014 Page 8 districts, but separators appear only between major classes of use, e.g., separating the eight residential districts from the six business districts. Due to the number of districts on each page and the very small font size required to accommodate so many districts, the absence of better visual definition makes the table difficult to read. This is an example of a simple-to-fix issue that needs little elaboration here. Suffice it to say that table design is no less important than overall page design choices to create a usable, understandable reference document. 3. Access and Ease of Use Since experienced town officials and staff often work with the ZBL, they probably can find obscure provisions with ease. However, the resident who simply wants to understand the requirements for expanding a garage or constructing an in-ground swimming pool needs some basic navigation aids. In addition to the table of contents, an index and possibly a quick reference guide would make the ZBL more accessible not only to residents, but also newly elected or appointed town officials, developers and their consultants, and non- resident landowners. C. POLICY FRAMEWORK The new Master Plan promotes several goals that relate directly or indirectly to land use. It is important to acknowledge them here because they have an impact on the zoning assessment. A zoning ordinance or bylaw should express a community’s development blueprint: the “where, what, and how much” of land uses, intensity of uses, and the relationship between abutting land uses and how they relate to the roads that serve them. Ideally, one can open a ZBL and understand what the community wants to achieve. While many aspects of Arlington’s ZBL are fairly straightforward, it is not always as clear as it should be due to a combination of drafting problems and organizational weaknesses. In addition, we understand that staff and officials do not always interpret the ZBL the same way. Aside from deficiencies with the existing ZBL, the new Master Plan promotes goals that Arlington will find it very difficult (if not impossible) to meet without a comprehensive zoning update. These goals include, from Land Use and other elements:  Balance housing growth with other land uses that support residential services and amenities.  Encourage development that enhances the quality of Arlington’s natural resources and built environment.  Attract development that supports and expands the economic, cultural, and civic purposes of Arlington's commercial areas.  Maximize the buildout potential of commercial and industrial properties. Arlington Department of Planning and Community Development July 22, 2014 Page 9  Preserve and maintain Arlington’s historic structures and cultural properties to leverage economic development.  Encourage mixed-use development that includes affordable housing, primarily in well-established commercial areas.  Provide a variety of housing options for a range of incomes, ages, family sizes, and needs.  Ensure that Arlington’s neighborhoods, commercial areas, and infrastructure are developed in harmony with natural resource concerns. 1. Use Districts Arlington adopted its first Zoning Bylaw in 1924, but the version currently in use was adopted in 1975 and it has been amended many times since then. It divides the town into nineteen use districts (see Zoning Map), or areas zoned for residential, commercial, industrial, or other purposes. There is nothing inherently wrong with a large number of zoning districts as long as the regulations make sense “on the ground.” In many cases, especially along Massachusetts Avenue, Arlington essentially zoned the land for whatever purpose existed at the time, which in turn makes for an odd arrangement of districts – and often results in very shallow, single-parcel districts. Some districts are also divided by Massachusetts Avenue, i.e., different districts on opposite sides of the road. Table 1. Zoning Districts by Land Area Abbr. District Name Acres Abbr. District Name Acres R0 Large Lot Single Family 238.2 B1 Neighborhood Office 25.9 R1 Single Family 1,771.5 B2 Neighborhood Business 16.9 R2 Two Family 619.7 B2A Major Business 22.2 R3 Three Family 8.3 B3 Village Business 30.2 R4 Town House 19.4 B4 Vehicular Oriented Business 30.0 R5 Apartments Low Density 63.7 B5 Central Business 10.3 R6 Apartments Med Density 49.0 I Industrial 48.7 R7 Apartments High Density 18.7 MU Multi-Use 18.0 OS Open Space 275.9 T Transportation 0.8 PUD Planned Unit Development 16.2 Total Acres (w/out water) 3,283.6 Source: Arlington GIS. Table omits water area. There is also a wetlands protection (conservancy) overlay district that appears only in part on the Zoning Map. Like many towns in Massachusetts, Arlington has an Inland Wetlands District that pre-dates the adoption of G.L. c. 131, § 40, the Massachusetts Wetlands Protection Act. The Zoning Bylaw relies on a text description for some covered wetlands that are not specifically mapped, e.g., 25 feet from the centerline of rivers, brooks, and streams, despite a requirement of the state Zoning Act (Chapter 40A) that all districts be