The Cape Cod Commission: Under a microscope
by Joseph SantangeloThey have been described as gatekeepers, watchdogs over Cape Cod’s 396 square miles of land and protectors of 360 ponds and lakes, 550 miles of shoreline and other natural resources. For 15 years, they have slowed and eased some impacts of the commercial development that has swept over Cape Cod.
They are the 19 volunteer citizen members and 41 paid staffers of the Cape Cod Commission, the strongest regional planning and land use agency in New England. An independent arm of county government, the commission is financed by town assessments and application fees. It has reviewed more than 300 applications, conducted countless public hearings and approved more than 230 development projects.
Since Gov. Michael Dukakis enacted the commission into law on Jan. 12, 1990, it has set increasingly higher hurdles for commercial and industrial construction. Its regulatory review process has discouraged some development, improved the quality of other projects, mandated the preservation of open space and molded some commercial construction to fit the character of the Cape. The commission has forced national retailers to scale down mammoth plans and locate in existing smaller structures.
Yet the commission is currently the subject of secession attempts, an internal reassessment of it policies, an outside task force, a Business Roundtable call to action and decidedly mixed reviews from people familiar with the agency.
The commission also is in the midst of a five-year update of its 147-page principal regulatory document, the Regional Policy Plan.
Detractors argue that the commission and staff too often focus on the wrong targets, impose standards subjectively and handcuff small, locally owned businesses. Standards are said to range from the critical to the superfluous – and appear to some to be moving targets.
Some businesspeople contend the commission’s requirements and procedures are so unpredictable, time consuming and costly that they scare off many local owners from attempting to upgrade or expand their properties. They believe the current system lacks an understanding of business and prevents much of the existing Cape economy from modernization, growth and job creation.
Whether a proposed mega-store or a mom and pop motel seeking to rebuild, all applicants must first address a long list of stringent performance standards. These involve land use, water protection, job impacts, transportation, affordable housing, historic preservation and architectural standards as well as lighting, signage and landscaping.
To meet these standards, applicants almost always retain a lawyer, hire consultants, pay a fee and prepare reams of documents including site plans, traffic studies, architectural designs and what some believe is proprietary financial information. Once the documentation is deemed complete, property owners spend weeks awaiting a staff recommendation, a public hearing and a commission decision.
To avoid commission regulation, which kicks in for developments greater than 10,000 square feet, many owners limit construction and retail projects to 9,900 square feet, so they fall under the purview of town zoning and building officials.
Residential growth unchecked
“The system is like a failed experiment,” according to Cape Cod commercial real estate broker Chuck Carey. “It has held back the business community from evolution, rejuvenation and expansion, which are all normal processes. They’ve shifted the growth of Cape Cod to the residential side.”
Further, he added, “The typical commercial buildings have atrophied, degenerated, decayed and become dysfunctional. They’ve hit bottom. But they can’t break out of what they’re in with this morass of regulation.”
While many commercial property owners feel stymied, residential construction has proceeded rapidly. By law, there is no commission review of individual home construction of up to 30 units, or of subdivisions of fewer than 30 acres.
Between 1990 and 2005, Cape Cod housing units increased by about 17,500. Population jumped in that period from 186,605 to about 228,700. Traffic increased on average more than 1 percent a year. Water use, solid waste and septic wastewater systems continue to multiply.
For businesses, the commission process amounts to an all-or-nothing proposition. Either they are subject to full commission review or no commission review at all. Businesspeople question if there might be some middle ground where they could obtain a preliminary site plan review, to see if a project will go forward, before spending tens of thousands of dollars on numerous detailed studies.
In response, supporters say the commission’s power is exaggerated and many stories about heavy-handed practices are mythical.
According to Margo Fenn, commission executive director, “Are there legitimate concerns? Yes. Are we doing something to address them? Yes. Are there changes to do our job better? Yes. I am trying to approach this, as a Buddhist would say, with an open heart. There is a lot to be learned, and the community has a lot to learn about us. The mythology about us is so overblown and not based on fact. Some stories have a basis in fact, but by the time they are circulated they are blown way [out of proportion.] For instance: how long it takes to get through the process; how expensive the process is; the idea that you can’t get through it. We approve almost 90 percent of the proposals.”
The commission has taken a first step to make its processes more flexible and is considering more changes. Members and staff now differentiate projects based on use – but so far only for nonprofit applicants. The commission gives greater leeway to what are called Projects of Community Benefit, leading some to say the commission distinguishes between “good traffic” and “bad traffic.”
Under expedited procedures, the commission has granted approvals to local nonprofits such as Wellfleet Harbor Actors Theater, National Marine Life Center in Buzzards Bay, Riverview School in Sandwich and Cape End Manor nursing home in Provincetown.
The commission also wants to distinguish between new construction and reconstruction, encouraging more commercial owners to revitalize what one observer described as a “moonscape of half-used, one-story crappy buildings.”
“We try to encourage [reuse of existing buildings.],” said Fenn. “Yet it is hard to get people to do that. It’s easier and cheaper to strip a new site than to retrofit. We set up a change of use or redevelopment process. You can go to the regulatory committee rather than the full commission. If you’re not generating more traffic or nitrogen loading, OK, we don’t have to review that.”
There is also discussion of easing requirements for local businesses planning to rebuild. That may include properties such as aging motels that need larger bedrooms and more modern amenities on the same site, within the same building footprint, but with an added second story.
Under a limited review process, an addition of more than 10,000 square feet that generates no more traffic, no more wastewater or other major issues might be subject to a limited scope of review.
John Lipman, the commission’s chief planner and deputy director, said, “We have been hearing from the business community that the process is no different whether they are building a 12,000-square-foot distribution center or a national retail store at 70,000 square feet. Should we be treating both projects the same? Probably not. It should be easier for a small, local business to expand, and perhaps even make the process inviting enough – tolerable enough – that those business now saying, ‘Forget it,’ might come to the commission.”
The commission and staff may also review other changes to the size of construction projects that trigger commission review. Builders contend that the 10,000-square-foot threshold should be increased.
Regulation versus planning
The Cape Cod Commission Act gives members authority over three large and potentially conflicting functions: planning, regulation and technical assistance. For the most part, the commission applies a heavy regulatory brake on commercial development, but advocates long-term land use planning at the town level. The commission also compiles volumes of research data and offers technical assistance to the towns. It provides digital maps, disaster planning, groundwater studies, pond and lake programs, estuaries reports, and support to towns for comprehensive local planning, land banks, bike paths and numerous other efforts.
Commission staff, as well as environmental groups, concede the commission cannot superimpose its vision of land-use management on 15 Cape Cod towns. It is up to the towns to adopt comprehensive local plans, with commission assistance.
Meanwhile, lacking a comprehensive consensus on what type of development should go where on Cape Cod, planning often proceeds on a case-by-case basis. Developers propose a particular project at a specific location. Then the commission (with input from interested groups) puts it through the review process, modifies it and ultimately gives it a red light or green light.
For all the flaws in the process, only the harshest critics want to do away with the commission completely. Most business leaders express the view, “Mend it, but don’t end it.”
Development lawyers and their clients don’t necessarily want to see towns secede from the commission, as several now threaten. Instead, they want greater sensitivity by the commission to the costs and time imposed on businesses, more consistency from case to case and greater accountability by commission staff experts.
On the other hand, Bourne, Sandwich and Hyannis are increasingly frustrated by what they consider interference by the commission in their town affairs. They argue that local planning departments and zoning boards are fully equipped to make the correct judgments on development in their own towns – especially when construction will not directly affect shared water sources or traffic patterns beyond municipal borders.
Legislation on Beacon Hill to change or eliminate the commission is extremely unlikely, especially over the objection of one of the commission’s founders, state Sen. Robert O’Leary.
Best bets are the commission will create more flexibility for reconstruction of local businesses. More simplified rules and procedures for redevelopment of existing structures may be in place within the coming year.
Joseph Santangelo Joseph Santangelo has been a statehouse bureau chief, a corporate executive and currently works for the Connecticut Legislature. 
