A new chapter for Cordage Park
by Lee Hartmann and Michael ScottDespite recent downward pressure on home prices, the cost of housing remains a major concern for nearly two-thirds of Massachusetts residents, according to a recent report coauthored by the University of Massachusetts. That study found residents overwhelmingly support construction of affordable housing – even in their own neighborhoods. They also favor smart-growth policies.
Yet local officials express almost universal loathing for Chapter 40B, the state’s main tool for the promotion of affordable housing.
Chapter 40R was supposed to help bridge these contradictory attitudes, by providing financial incentives for communities to allow denser and more affordable housing in town centers and in areas served by mass transit. However, it too has received a less-than-enthusiastic response.
Our direct involvement in the ongoing redevelopment of Cordage Park in Plymouth under Chapter 40R suggests that many of the criticisms are misplaced. The Cordage Park 40R district, approved by Plymouth town meeting voters in May 2006, includes approximately 60 acres of land on the site of the large mill complex where the Plymouth Cordage Company manufactured rope between 1824 and 1964. The district abuts Plymouth Harbor and includes the Plymouth station for the MBTA’s Old Colony Commuter Railroad, providing service to South Station in Boston.
The 40R district allows 675 residential units and 600,000 square feet of commercial uses.
While cities and towns certainly have been slower to adopt 40R districts than originally expected, we believe that the experiences of early adopters such as Plymouth may create something of a tipping point in its favor, especially if the state steps up to the plate on funding.
Everyone’s a critic
The ink had barely dried on Chapter 40R when numerous planners, municipal officials, and an assortment of other critics declared it dead on arrival. Their criticisms are:
• Chapter 40R strips municipalities of local control of development through its as-of-right provisions.
• Chapters 40R and 40S financial incentives are not guaranteed to cities and towns, since the state has not set aside sufficient funding for them.
• There is a contradiction within Chapter 40R between its smart growth and affordable housing provisions.
• Projects being developed under Chapter 40R were already in the works and, for the most part, already conformed to the law’s criteria.
Based on our experience with Cordage Park, we suggest otherwise.
While a perceived lack of control over development has been cited as a bar to Chapter 40R, no issue is more of a red herring.
The Chapter 40R regulations give municipalities considerable flexibility in fashioning smart-growth zoning. Of course, the zoning must provide for the requisite residential density and affordable components. The Cordage Park bylaw addresses the type, location, mix and size of uses; the subdivision of property and minimum requirements for access; setbacks and dimensional limitations; plus open-space requirements.
The Plymouth planning board and planning department also expended considerable time and energy drafting 35 pages of design standards to achieve a collective vision for the development of the district. They cover street furniture, architecture and landscape design, construction material and the preservation of historic features and signage. In addition, they guarantee parks, walkways and public waterfront access.
Focusing on a result that everyone could accept created a dynamic that was more collaborative than most special permit proceedings. Through numerous meetings that included the property owners, representatives from the towns of Plymouth and Kingston and other landowners in the two towns, a broad constituency was developed from the outset.
The bylaw and design standards reflected a common vision and provided similar control to that which would have been provided under the existing special permit process, while still guaranteeing a more expeditious local permitting process and reducing the development’s exposure to frivolous appeals.
There was also broad consensus that the revitalization of Cordage Park was essential to the long-term success of the North Plymouth Village Center and the town of Plymouth as a whole.
What if the state reneges?
Municipal officials worry that a financial downturn or other spending priorities might cause the Legislature to renege on its commitments. Even in the Cordage Park case, town decision makers made it clear that they did not have a high degree of confidence that the funding would actually be forthcoming.
Skepticism about the availability of funds is likely warranted. However, state Rep. Kevin Honan, co-chairman of the Joint Committee on Housing, has filed a bill this session that is intended to streamline the reimbursement process and increase the sources of funding for Chapters 40R and 40S. The bill proposes an innovative funding source for the trust fund: income taxes paid by residents of newly constructed or substantially renovated housing in approved 40R districts.
Smart growth and Cordage Park
Traditionally, affordable housing has made the most economic sense in outlying areas, where land costs are lower. They also tend to come with less expensive permitting costs and uncertainties.
But in a Chapter 40R district, the cost and uncertainty of proceeding with a project are significantly reduced. The Cordage Park developers knew what performance standards must be met, and the time frame for approval is 120 days. Just as important, the risk of appeal is substantially reduced.
For Cordage Development, the greater certainty, shorter time horizons and reduced costs associated with a Chapter 40R process were instrumental in convincing it to invest the upfront resources to help create the district. The smart-growth elements of Chapter 40R – namely, higher density development located near transit and existing infrastructure – also are important for meeting the levels of affordable housing (up to 25 percent of the units in a project) required by the law.
Developers generally break even or perhaps even lose some money on the construction of the affordable units. This loss can be offset only by the value of the market units and the increased densities allowed under Chapter 40R.
At Cordage Park, Plymouth’s conventional zoning already required 10 percent of the units to be affordable. The Chapter 40R requirement of 20 percent proved acceptable to the property owners in return for greater flexibility and certainty.
The town of Plymouth as a pioneer
Currently, 40R districts have been approved in 10 communities, and eight more are seeking or have received letters of eligibility from the Department of Housing and Community Development. Together, these districts would allow for a total of 6,118 units of housing, of which 1,223 would be affordable units.
As Chapter 40R projects reach maturity and municipalities are able to learn from the experiences (and presumably some mistakes) of the early adopters, we expect that more cities and towns will seek the competitive advantages afforded by creating Smart Growth Overlay Districts.
We expect that towns like Plymouth will be seen as pioneers that blazed a new trail of affordable housing production.
Is Chapter 40R going to completely solve the commonwealth’s housing dilemma? Certainly not by itself. In a home-rule state, there are limits to how much state government can change local zoning policies.
However, it does provide municipalities with an alternative to Chapter 40B, in which the municipality truly does lose control over projects. And signs are pointing to progress toward achieving 31,000 new housing units in Massachusetts, a goal set in 2005 by the Commonwealth Housing Task Force.
Is there more that can be done? Absolutely. Most importantly, municipalities must have confidence that their budgets will not be further stressed by increased school costs resulting from high-density development projects. Continuing uncertainty about whether the state will meet its funding obligations under Chapters 40R and 40S remains the most important obstacle to more widespread.
Further, the commonwealth should be working with municipal leaders to provide the resources needed to accommodate denser development, such as improved infrastructure, parking facilities (especially for downtown areas) and more intermodal transportation.
This will also require support from the MBTA, since mass transit is a central component of Chapter 40R principles.
The new law is not a panacea, but neither is it the Pandora’s Box that some municipal officials have portrayed it to be. The open question is what actions the state will take to resolve the remaining Chapter 40R dilemmas – on that the jury is still out. The future of the commonwealth depends on our ability to solve the interrelated challenges of high housing costs and population decline.
Michael E. Scott is a partner in the Real Estate and Finance Department and a member of the Land Use Practice Group of the law firm of Nutter McClennen & Fish LLP.
Lee Hartmann is director of planning and development for the town of Plymouth.
Published in Plymouth County Business January 2008
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