Zoning Proposal Alert

What is Article 33?

The stated purpose of Article 33 is "to provide incentives for builders to choose to produce developments that provide smaller homes, include affordable homes and create a variety of home building types not readily available in Lexington, rather than conventional subdivisions."  

The proposal (motion) would make all multi-family development by-right, same as single family homes, except with a Site Plan Review. In effect, it would allow a developer to purchase and combine any two adjacent conforming lots in Lexington and build up to 8 units by-right.

Simple majority (>50%) votes at Town Meeting are needed to pass. 

If Article 33 passes, revising it by making it more restrictive would require a 2/3 super majority vote, while to further enhance multi-family developments would require simple majority (>50%). 

Why is Article 33 problematic?

• Unanswered questions: Town Meeting Members have not been fully informed of the ramifications of this article. The scale of change this proposal would affect has not been communicated, understood, or digested. 

- How many acres of lots in Lexington would currently qualify for this bylaw?  (While no official number has been given, one estimate is around 50 acres.) 

- Would this bylaw allow a developer to purchase and combine any two adjacent conforming lots and build up to 8 units by-right under the Compact Neighborhood Development (CND) provision? (The answer is "yes" according to our calculation.)

• Missing or contradicting info: 

- Examples in the presentation are not by-right construction projects, contradicting to the claim that Article 33 would yield that kind of result. For example, the Concord Riverwalk and Lexington Meadow were both approved with special permits, neither is by-right construction.

- Data has shown that developers build to the maximum allowed by the zoning bylaw in Lexington, which is why it is important to understand the multi-family unit capacity and potential single-family size.

- There was talk that further regulations will be written, but Town Meeting is asked to vote without seeing them. This is in addition to the fact that regulations might not be enforceable if they were more restrictive than the proposed zoning bylaw.  

- Claims in the Purpose section "Encourage the preservation and minimum disruption of outstanding natural features of open land and minimize impacts on environmentally sensitive areas;" or "Encourage sustainable development through the use of green building practices and low-impact development techniques;" are not backed up with enforceable language in the motion.

• Further relaxing already "the most relaxing zoning": 

- Data, as well as real estate flyers, have shown that Lexington has more relaxed zoning than neighboring towns. There is no need to relax zoning laws further for Site Sensitive Developments (SSDs) or CNDs to by-right permit. Special Permit is necessary as it allows the town the needed control over aesthetics and creative development solutions that SSDs and CNDs may require.

- SSD would be allowed by right,  so that even larger single-family construction than is currently allowed on single family lots or with the existing Special Permit SSD. And by allowing projects with six or fewer dwelling units to merely contribute to the Affordable Housing Trust, assures that no affordable housing will be built in SSDs.  With a 15% GFA bonus and allowance to continue to build single-family dwelling units, this allows much larger single-family homes.

- Even with a Special Permit, a significant number of SSDs have not resulted in developments that minimize site disturbance or preserve natural features.  Aside from resulting in slightly less grading and preserving a few existing homes, it's been made clear that no other efforts will be made to protect and minimally disturb essential natural, undeveloped, wooded spaces. 

- More relaxed zoning in Article 33 would undercut the Open Space Residential Developments bylaw passed last year, making it unattractive and unlikely to be utilized by developers

• Too big: 2,200 -2,800 square foot GFA would not address the need of empty-nesters to down-size.

• Irreversible: Once the article passes, it would be hard to fine tune it to be more restrictive, as it would require super majority (2/3) votes. 

For both Article 33 & 34: what do the town and community lose when dense developments would be built with by-right permits? 

• In the special permit process, the town and the community have the leverage in shaping a proposed development. Compromises on unit size, height, density, building mass, drainage, sidewalk, tree coverage, and number of affordable or inclusionary units can be made between the developers and the town/community. With by-right development, even with site plan review and regulations, the town cannot deny issuing a permit if the application meets the minimal requirements and does not exceed the maximum limit in the zoning bylaw.

• The claim that because by-right construction will be subject to Minor Site Plan Review or Major Site Plan Review, the town and community can have input the same way as special permit is untrue.  Site Plan Review can only ensure that the plan meets the minimum requirements in the zoning, the town or community have no right to negotiate anything beyond, anything specific to the circumstances of the individual site.

• The claim that "the Special Permit process is so onerous that developers would build conventional subdivisions instead" is not based on facts. Since 2008, when Special Permit Residential Developments for multi-family developments (Balanced Housing) was introduced,  214 housing units have been approved with special permit, vs 49 single-family homes via conventional subdivisions. 

• The examples of condos in the presentations for Article 33 and Article 34 are built not by right, but through Special Permit (approved by majority of the Planning Board) or Planned Development (approved by the Town Meeting). The only by-right condo example is Lexington Courtyard Place, a 40b construction that has limited green space.  Is it the type of development the town and community want to emulate across 227 acres (Article 34) and throughout town (Article 33)?

Glossary

By-right (or As-Of-Right) vs Special Permit:

• A by-right application cannot be denied if it does not violate zoning bylaws.

• Special Permit is issued at the discretion of the Planning Board, after public hearings and the town's and community's input on elements such as number of affordable units, building mass, placement of the building(s), sidewalk, conservation of mature trees, open space, traffic mitigation, etc.

Regulations, Minor or Major Site Plan Reviews vs. Zoning Bylaws: 

Zoning Bylaw is enforceable. A lax zoning bylaw cannot be salvaged by more restrictive regulations or Site Plan Reviews.

• Zoning regulations can supplement the zoning bylaw, but may not contradict or restrict the use that is controlled by the zoning bylaw. 

• (Minor or Major) Site Plan Reviews are often made after the designs have been completed by engineers and architects. Unless the plan violates the zoning bylaws, even if it may not satisfy all the demands by the town or residents in the site plan review, a by-right permit cannot be denied. 

Conforming residential lots: 

• RO (One-Family Dwelling): 30,000 square feet 

• RS (One-Family Dwelling) or RT (Two-Family Dwelling) : 15,500 square feet