Opinion: Getting Into The Weeds Of Chapter 40R Overlay Zoning

Editor’s Note: In anticipation of next week’s fourth and final forum on Smart Growth (40R zoning), we are reprinting an applicable op/ed from Hilda Greenbaum that we published back in June.

The following commentary compares Amherst’s current zoning bylaw with a new zoning overlay district, proposed by consultants hired by the Town under a grant from the State, to provide more affordable housing in our downtown. What might change and what might stay the same under 40R zoning?  Is this something the Town wants to do?

Some issues arise immediately:

* Does Massachusetts General Law, Chapter 40R  offer enough benefits and incentives for Amherst to adopt it?  (M.G.L. Ch. 40S provides incentives for the Town but its adoption is not being proposed at this time.)

* Is this particular bylaw, proposed by consultants, right for Amherst, particularly in light of the current pandemic and its unknown future consequences? 

* Can 40R be modified easily to make it palatable to Amherst taxpayers and still yield the number of affordable units affordable housing advocates say are needed? Would it be easier to fix our flawed existing bylaw in order to preserve  a vibrant and attractive downtown?

Background
The consultants, Karen Sunnarborg and architect David Eisen of Abacus Architects and Planners,  began their study in 2018. After four community meetings and interviews with about thirty stakeholders, they offered two reports, “Planning For Housing Production In Amherst”  and “Smart Growth”. Note that “affordable housing production” motivates this work.  Commercial and other uses are allowed but clearly of secondary interest and given short shrift in the regulations. While the “major consultant task areas”^. included “engaging with Amherst residents, property owners and other housing stakeholders throughout the planning process,” the Planning Board only heard from Karen Sunnarborg (housing and planning consultant) and Architect David Eisen for the first time at its meeting on May 6, 2020  about the “Smart Growth study and proposed draft zoning amendments, including design standards.” (Note: all quotes are from materials provided by the consultantS—mostly the December 19, 2019 and April, 2020 reports.)

The first report (12/19/19) was essentially a slideshow with maps and pictures of possible design guidelines.  The second report produced in April, 2020 is a prototype zoning bylaw. All of the information regarding this study can be found here.

After looking at three other areas of Town, the consultants decided that a Ch. 40R Overlay District on the north end of downtown was the best option. Large swaths of North Amherst with easy access to bus service and utilities fall under what became “An Opportunity Zone” under the federal tax law revisions of 2017—and, the landowner and developer pushed hard for this option. 

But the consultants felt that North Amherst “scored less well on walkability, complete streets, existing density and, compact development…..and that it might also attract some political pushback and traffic problems.” Pomeroy Village in South Amherst tied with East Amherst but was not selected because (among other reasons) it “lacks existing density and compact development and limited area zoned that permits commercial uses where apartments are allowed”. And East Amherst was excluded because it is “constrained along a commercial corridor that limits pedestrian access and various housing types . . . . more limited amenities.” And, it turns out, there were no developers clamoring to build affordable housing in these two locations.

The existing zoning dimensional limits and the boundaries of the proposed 18 acre Downtown Amherst Smart Growth Overlay District governed  by the proposed 18-page bylaw is shown in two maps found on pages 15 and 18 of the December report are outlined with red dots. Three sub-districts are proposed: URBAN CENTER, lining North Pleasant, East Pleasant and Triangle Streets, GENERAL URBAN, abutting West Cemetery, and SUB-URBAN, FACING North Prospect, Hallock and Cowles Lane.

The design standards utilize a “transect-based Form Based code (zoning bylaw 11.2) methodology to facilitate preservation of what the Amherst community generally appreciates in downtown and the transformation of what isn’t appreciated based on public input.  The Rural-to-Urban Transect is a system that considers all the elements of the traditional New England built environment … divided into six zones based on density of the built environment and its physical and social character.  The three sub-districts of the Smart Growth Overlay District (SGOD), T3 Sub-Urban, T4 General Urban, and T5 Urban Center “are keyed to standard T1 through T6 Transect definitions.” (see maps)  What does this mean? 

If the Town Council votes to adopt Ch. 40R, developers will be able to choose to use the regulations and design standards allowing greater density in the downtown or build projects under our existing bylaw using the dimensional regulations shown on the p. 15 map. The incentive for the property owner/developer is that all development under the 40R bylaw is allowed by right at much greater density. Project plans can only be “disapproved if the application is not complete, does not meet zoning requirements, and it is not possible to adequately mitigate significant adverse Project impacts on nearby properties by means of suitable conditions.” Waivers are allowed to achieve greater density, but affordability may not be waived under any circumstances.

“Meeting Design Standards is required by the bylaw, but [the consultants admit] many of the requirements are subjective or open to interpretation; good design is hard to dictate. . . .they are intended to reflect the vision of the community . . . Preserve positive aspects of the existing town character. Improve the pedestrian experience. Support new and existing businesses. . . .”  

The overlay district covers part of the northern downtown bounded by the Bank of America parking lot, Cottage Street, around Kendrick Park to McClellan, south along the western lot lines of the North Pleasant Street vernacular (mixed use) houses, South along the backs of the North Prospect St. houses, Cowls Lane, through CVS parking lot to North Pleasant St. The east boundary is Kellogg Street the coinciding with the boundaries of the West Cemetery.

For all projects developed under this bylaw with at least 13 units (or fewer if the Town so decides) at least 20% of the owner-occupied units must be affordable and eligible for inclusion in the Subsidized Housing Inventory (SHI) and 25% for rental developments with all units counting in the SHI.

The permitted uses are the same for all three sub-districts single and multi-family dwellings, parking accessory to any permitted use (surface or garaged), accessory uses “customarily incidental to any of the …permitted uses. . . .”

So What’s Wrong Here?
Is 40R the answer to all our problems or will it create new and unintended problems? Here’s what I found in the weeds– some pretty big, fast-growing and fast proliferating maple tree seedlings.

1. Loss Of Review And Design Control By Important Boards
   
   If projects are developed as-of-right under Ch. 40R, ALL provisions of our existing bylaw are replaced with new and different ones. Good-bye Design Review Board, good-bye Historic District Commission, good-bye Local Historic District Commission , amendments which Town Meeting approved to preserve our historic architecture, some of the 19^th century New England charm of our downtown and some control over the aesthetics after the horse in the guise of the current Bank of America got out of the barn. (The former Amherst Savings Bank replaced a row of single story brick storefronts at the North Pleasant/Amity St. intersection.) But the Chamber of Commerce and the Business Improvement District, in their report to the Town Council (May 11),  consider the Design Review Board a hindrance to downtown development.
   
2. “Stakeholders” Interviewed By The Consultants Did Not Include Any Downtown Neighborhood Residents.
   
   The list, provided by the Town, of “stakeholders, developers/property owners/Realtors” was very limited and hardly representative of Amherst taxpayers. Among folks not on the list of interviewees are the many small landlords or anyone representing them, no residents of the area—homeowners or tenants—no one from the Historic District Commission, Local Historic District Commission, or Design Review Board, among many others who could suffer the impact of the bylaw provisions.

3. With the Weak, Vague And Waivable Design Standard, the Promise Of Attractive New Buildings through Form Based Zoning  Is Not Assured.
   
   The Design Standards are subjective and very vague—perhaps unenforceable,  even  if a Town as divided as Amherst is could ever agree on what designs and aesthetics are appropriate for our downtown.   The goal is the “creation of moderate density commercial, residential and mixed-use development easily accessible to local colleges and universities, residential and commercial neighborhoods, open space and public transportation.” But how can all these things happen in the few developable parcels in our rather small downtown? The consultants believe that as-of-right development is the incentive to meet them. Good taste in architectural design is in the eye of the beholder.  Witness the Bank of America building on the corner of South Pleasant and Amity!

  4. There Are Three Uses Allowed By Right:

5.1 Residential projects of single and multi-family housing units
5.2 Mixed-Use Development Projects allows single and multi-family units
5.3 Other Uses which include commercial, office, cultural, open space,  non-residential etc.  (Yes, it is very vague.) 

  5.   Non-Residential Elements Of Any Mixed-Use Development Must Be Planned And Designed To Complement The Residential Uses . . 

“to foster vibrant, workable, livable, and attractive neighborhoods consistent with smart growth goals.” Note however: “The total gross floor area devoted to non-residential uses within a Mixed-use Development project shall not exceed 49% of the total gross floor area. . .” and can be zero. 

The bylaw is concerned with providing affordable housing in our downtown. The economic viability of our downtown business district is not the purport of Ch. 40R. Rents/asking price of the market rate units have to cover the cost of the affordable units. One asks what is the market demand for high-priced units in our downtown? What happens to our shrinking middle-income population? Where will they live? What happens to our local shop-keepers who can’t afford the high rents of new construction? We learned when the Carriage Shops were torn down that no available and affordable store fronts are available for the 32 shops and mosque that had been there. So how does this make for a vibrant downtown if only bars and  chain restaurants  can afford the rents? 

6. Any Use Would Be Allowed In The Downtown Under Ch, 40r—Do We Want That?

Note that many uses that are heavily regulated in our 80+ page zoning bylaw are allowed by right and not regulated by the Ch. 40R proposal.  “Commercial” here is so broad that it does not regulate uses that are prohibited or only allowed by Special Permit now. Single-family, detached dwellings, owner-occupied and non-owner occupied duplexes, fraternities and sororities, congregate housing for the elderly, gas stations, sale and repair of automobiles etc. are not allowed in the downtown now. Townhouses and apartments, hotels and inns, nursing homes, for profit hospitals, bus and taxi depots, restaurants and bars require Special Permit, regulated according to the standards in Section 10.38 the limited business (BL) district now and Site Plan Review (Section 11.2) in the General Business District (BG).Under 40R there is no regulation of parking, signs, alteration of existing non-conforming structures and uses; and no independent Design Review process or Demolition Delay, also considered by some to be a hindrance to downtown development. 

7. Bureaucratic Requirements Of Meeting Affordability Standards Would Be Onerous To Small Landlords

Section 6 of the bylaw is concerned with the affordability and bureaucratic requirements which are so onerous for the small landlord or even some of Amherst’s larger developers will find that development for them under Ch. 40R is not a good choice. The interview report suggests that only the large out-of-town developers have the personnel and funds to build here. However, are there parcels in the downtown large enough for the big companies? If one were to redevelop the one-story strips in our downtown, what would happen to these merchants during demolition and reconstruction? Would newly constructed shops be small enough and rents low enough for the displaced business tenants to return?

8. The Design Standards…Can our Planning Board understand and enforce the design standards?   The Design Standards utilize a “transect-based Form Based Code descriptive (Section 11.2) methodology to facilitate preservation of what the Amherst community generally appreciates in Downtown and the transformation of what isn’t appreciated based on public input. The Rural-to-Urban Transect is a system that considers all the elements of the traditional New England built environment . . . . divided into six zones based on density of the built environment and its physical and social character.” The three sub-districts of the Smart Growth Overlay District (SGOD), T3 Sub-Urban, T4 General    Urban and T5 Urban Center . . . “are keyed to standard T1 through T6 Transect definitions.” Maps of the three subdistricts are found on pages 15 and 18 of the consultant’s December report. What does this mean? Your guess is as good as mine.

The three sub-districts of the Smart Growth Overlay District (SGOD), T3 Sub-Urban, T4 General    Urban and T5 Urban Center . . . “are keyed to standard T1 through T6 Transect definitions.” Maps of the three subdistricts are found on pages 15 and 18 of the consultant’s December report. What???

9. Housing Density Requirements

Minimum Housing Densities under Ch. 40R are 8 units/acre of Developable Land, 2-3 family at 12 units/acre and 20 units/acre of multi-family. Where can other than multi-unit housing be developed in this small area of downtown? Sounds great on paper but there don’t seem to be any parcels large enough for anything else.

10. Dimensional Requirements

Table 3 of the 40R  zoning bylaw requires 12,000 square feet with 1250 s.f. additional for each dwelling unit minimum lot size in the BG and 20,000 s.f. in BL plus 4000 s.f. in BL. Front setbacks are 0-20 feet in BG and 20 feet in BL, 10 and 25 feet side and rear yard, five floors (55 feet) in BG, three floors (35 feet) etc. 

The dimensional requirements (11.3.2.1) are very confusing, incomplete, and I can’t find that the limits are defined. Under the SGOD are minimum zero feet side and front yard setback with no maximum and minimum, 20 feet rear yard setback with a maximum height of four floors and 50 feet (11.3.2.1 p.21 of the FOURTH COMMUNITY MEETING REPORT, April, 2020). But on page 17: Front yard setback is zero-five feet with minimum zero side yard with no maximum for either, height between 24 and 65 feet (five floors). It seems that the requirements on page 17 refer to sub-zone T5 and those on p. 21 to the current BL (according to the information in the December Report)  but this is not explicit, simple “Not withstanding anything to the contrary in the Zoning Bylaw the dimensional requirements applicable in the SGOD are . . . .” This writer cannot find dimensional requirements for the area abutting the West Cemetery though the December Report cites 40 feet high (four stories). It is difficult to determine from information given in the report what the maximum number of bedrooms (without required parking) could be built on any given parcel

11. Are We Creating A Canyon Feel To Downtown?

Given these heights and street-front setbacks, some consideration should be given to developing regulations that would prevent shadows on abutting properties. Canyons of winter darkness are not conducive to a lively business district. What successful college town has a canyon of four and five-story buildings lining a narrow street? Would  it attract shoppers and tourists.

12. An Alternative To 40R

Town Council could pass form-based zoning for the downtown without increasing building heights and density if that is what the residents of the Town want. Town Council can also require affordable units in all new buildings of a certain size.

For these reasons and many other intended and/or  unintended consequences,  I feel that Amherst is left with two options:  deny Chapter 40R  outright or replace this “boiler-plate” document with a bylaw customized for our Amherst downtown. Given the fast-growing and proliferating maple tree seedlings found in the weeds, this field should be plowed under and re-planted.  It adds nothing of value to our flawed existing bylaw.

Maurianne Adams, Meg Gage, and Barbara Ford contributed to this article. 

Hilda Greenbaum is a 65-year resident of the Amherst area and a 50-year resident of Amherst, a town meeting member from 1975–2018, and a  former member of various town boards and committees, including Public Transportation, Assessors, and Zoning Board of Appeals. Her particular interests are land use and historic preservation.