Confusion Surrounds State Zoning Changes Luddy: Clarifications Likely To Happen

 HARWICH – The select board has taken a firm position against a number of changes to the state’s Zoning Act, challenging new provisions, questioning the absence of transparency in shaping the amendments and the stripping of home rule authority from local communities.

 State Representative Hadley Luddy, D-Fourth Barnstable District, was before the select board Monday night to discuss the board’s concerns. There is a need for clarification of a lot of the changes in the act, Luddy said. The Executive Office of Housing and Livable Communities (EOHLC) is charged with providing those clarifications. She said EOHLC will be holding a virtual session on Oct. 29 in which they will be addressing the issues, including the concerns raised by the select board. 

 “It’s all going to be a wait and see,” Luddy said of the need for clarifications. 

The select board has made it clear that it takes issue with the way the zoning reform measures were enacted. Passing them as a rider to the annual budget bill denied municipalities the opportunity to weigh in before enactment, they said. The board is also concerned about the shift in zoning provisions toward housing needs over environmental impacts. 

 The board is also concerned that requiring the board of appeals will now have to weigh housing production as a public benefit against neighborhood impacts, shifting the variance review toward a case-by-case policy judgment.

 The select board sent a letter expressing its concerns to Cape and Islands Senator Julian Cyr, D-Provincetown, and Luddy, expressing the board’s concerns regarding the amendments, and inviting the legislators to meet with the board. 

 “The Legislature has turned the outdated, internally inconsistent and indecipherable Zoning Act into a nightmare for cities and towns and the judicial system, while lining the pockets of those who have the Legislature's attention. The changes will open a ‘floodgate’ of new variance requests based upon an unknown, unmeasurable and nonsensical standard of ‘practical difficulty,’ the board’s letter states.

On Monday night, Luddy appeared before the select board to address the concerns in the letter and made it clear there will likely be a need for amendments to the new law. She told the board that she has met with state officials, other representatives, researchers and the Cape Cod Commission to talk through concerns raised in the letter. 

 “These zoning changes come from the Senate during the budget’s negotiations that did not go through the standard legislative process,” Luddy said. “There weren’t any bills before the committee that dealt with reforming the [zoning board of appeals] process and nonconforming lots.”

Luddy said the new standard for variances, “practical difficulty,” is a significant departure from the long-standing requirement that a variance be tied to soil conditions, shape or topography. Requiring that the appeals board weigh housing production as a public benefit against neighborhood impacts shifts how officials look at variances, she said.

Luddy said the change lowers the standard, but she added that the permit granting authority can still consider whether the new standard of “practical difficulty” relates to soil conditions, shape or topography of the land structure.

 Luddy said there are legislators who agree they will have to file legislation to address issues they do not like.

 “Part of the frustration is how this was done,” Select Board member Donald Howell said. “There should have been legislative hearings and the Massachusetts Municipal Association and the Massachusetts Law Foundation should have been part of it.” 

 “The Cape is much more sensitive to nature than Methuen,” he said. “The water, sewer and roads; we’re getting to the point where we are maxed out. The lens is the lens, there will be brackish water infiltration.”

 “I share some of your concerns, as do my colleagues,” said Luddy.

 “We’re sitting on top of our water, our aquifer,” said board member Mark Kelleher. “We are very concerned about what goes into our water. It's not like urban communities where the water comes from 80 miles away.” 

 Select Board member Jeffrey Handler said the lack of transparency has to stop. He cited the first gubernatorial debate in which he said Gov. Maura Healey was talking about accessory dwelling units and she said “we actually took over local control.”

 “That is a tough pill to swallow. My fear is we’re losing our local control breath by breath. I’m not sure these are things Harwich would do on its own. Our local control is getting cut, cut, cut,” said Handler.

 Stressing the sensitive environmental issues that legislators need to weigh when promulgating legislation, Handler said Massachusetts has 351 municipalities; 78 of them border the ocean and 24 of them are on the Cape and Islands. 

 “We are not Fitchburg or Leominster,” he said. 

 Select Board Chair Peter Piekarski said the board was reacting to the lack of transparency in the promulgating of the amendments.

 “The way it happened reeks of a lack of transparency and it’s alarming to me,” he said. “Reducing town standards to state standards defeats home rule.” 

 Luddy said she would provide the town with the necessary information to connect to the EOHLC virtual meeting.