ARCHIVED: Newton Rezoning and Newton's Non-Condo Single-Family and Two-Family Homes

This is the prior 12/17/20 version. Link to most recent version.

The most important thing in evaluating the proposed new zoning is to understand, for yourself, the written text, numerical dimensional standards, and the zoning district map. The WRITTEN FORM of the ordinance and map are laws, not designs, and, as laws, they are the only things that are going to matter later when you sell your home, apply for a building permit, request zoning enforcement, defend yourself from zoning enforcement, go before the Zoning Board of Appeals, or appear in Massachusetts Land Court. Secondhand versions from the Mayor's Planning Department, the City Councilors, the Boston Globe, or even this website, about what these laws "really mean" will be irrelevant should any of those future events occur. A Planning Department PowerPoint slide will do you no good three years from now when a question arises.

With regard to your individual home and the proposed new zoning, it is especially important to understand the WRITTEN FORM of any 1) stricter dimensional standards, 2) harsher consequences for failing to conform to those standards, and 3) ambiguities about who can change the standards - and to understand 1,2, and 3 together. Ambiguity actually plays a large role in the proposed new ordinance. This is because the proposed House Types are only defined by the upper limits of their footprints and story heights, with the lower limits only appearing in the unpublished assignment equations in Table 2. These incomplete specifications has left some hidden house-size gaps, meaning there are unbuildable house-size ranges that aren't published in the dimensional standards. These hidden house-size gaps are discussed in the sections "Hidden House-size Gaps in Newton's Modified Form-Based Zoning" and "Ambiguity of the By Right Two-Family Specification of Article 3 Version 3," in this chapter. More importantly, it is hard to know when or if property owners can get their House Type Assignments changed - based on the way the current specification is written.

The current Newton rezoning process makes the understanding of the written ordinance difficult because, after the release of an initial 10/19/18 complete draft, the rezoning has entered into an unstructured and insular draft process in which the Zoning and Planning (ZAP) committee plans to spend two years on writing drafts of the proposed ordinance before submitting one non-draft version to the City Council for a vote in late 2021. This makes it almost impossible for the public to understand and affect the written specifications because the drafts are always changing and the Planning Department has only been releasing heavily marked-up and fragmented drafts that are hard to read and require the parsing together of different drafts to get the most recent specifications.

The Mayor's Planning Department, not the City Council, is proposing a unique "form-based" zoning ordinance that is a highly modified version of Somerville's new form-based zoning ordinance that was passed by the Somerville City Council on 12/12/19. Somerville's transparent and democratic rezoning process was the exact opposite of Newton's extended draft process, however. In Somerville, three separate written revised versions (V2, V3, V4) of the entire ordinance were submitted to the Somerville's City Council between 1/9/18 and 11/26/19, with the final version being passed by the Somerville City Council on 12/12/19. During this 23 month period, there were four separate public hearings, three of which had long public comment periods, each devoted to the specific written proposals of each ordinance version. This allowed meaningful review, feedback, and resulting edits from the public because they could clearly see what was being proposed in writing and present their opinions to Somerville's City Councilors. This is not the case in Newton, where it is hard to know what is being proposed at any given moment.

NewtonRezoning.org supplies links to ZAP's most recent drafts and encourages residents to read these drafts, difficult as that will be in the drafts' highly marked-up and fragmented state. Requests for clean unfragmented draft releases can be made to the City Council's Zoning and Planning committee (ZAP), although ZAP has so far been unresponsive to this request.

This chapter "Newton Rezoning and Newton's Non-Condo Single-Family and Two-Family Homes" supplies a current vs. proposed zoning ordinance comparison for single and two-family homes in Residence Districts, shown in Table 1. This comparison is based on the current zoning ordinance in effect and the best-effort parsed-together most recent draft versions, as of 12/1/20. Please note that only the written form of the drafts are used, not representations about the drafts. [To view your individual home's House Type assignment, new Zoning District, current and proposed dimensional standards  - and resulting nonconformity, go to the interactive calculator in "Newton Rezoning and YOUR Home."]

Table 1 shows that the Newton's current population of 19.7K detached single and two-family homes are old, with a median year built of 1930. In addition, the tax assessments show that the total value of single and two-family properties is roughly 40% due to the building and 60% due to the land.

Despite the maturity of Newton's housing stock, Table 1 also shows that the proposed new zoning is so radically different from the current zoning, that it seems designed for the planning of an entirely different city, built of new homes. This "new home" bias is evidenced by the fact that 94% of existing single-family homes and 91% of existing two-family homes would become nonconforming under the proposed new ordinance. Furthermore, despite the 40%/60% valuation split between building and land, the proposed new zoning requires smaller buildings and larger setbacks, meaning more land used for homes. This requirement for more land/home would make housing less affordable because land is the most expensive component of single and two-family homes.

Tables 2 shows the effect of the rezoning on Newton's population of detached single-family homes, including, again, the rise in nonconformity of all detached single-family homes from 54% to 94%. Table 3 also shows that Newton's smallest homes, House Type C, are especially hard-hit by the new rezoning to the extent that these homes appear to be intentionally targeted to become nonconforming. The 2.4K House Type C homes instantly become 90% nonconforming under the House Type C story number limit of 1.5 stories and footprint limit 1,200 sq. ft. footprint limit even before the nonconformity due to setback limits is calculated - an initial leap in nonconformity not true of the other House Types. In addition, almost half of these Type C homes, 1,144 out of 2,382, have story heights in excess of the House C limit of 1.5 stories, making it obvious that they will become instantly nonconforming with a House Type C assignment. The punitive nature of a House C assignment has been brought to the attention of ZAP several times, with no response. Table 3 shows the effect of the rezoning in Newton's population of detached two-family homes, include the rise in nonconformity from 63% to 91%.

Tables 4 and 5 are setback grids showing the minimum side/rear setbacks distributions required under the current zoning compared to the proposed zoning - where a setback is the minimum distance required between the edge of a building and the border of the lot. The required minimum setbacks are much larger in the proposed new zoning, with a doubling of the rear setbacks for almost all of Newton. Side setback increases are more reasonable for most of Newton, requiring with a change from 7.5' to 12.5'. For the 1.5K of unlucky older SR2 homes that have been rezoned into R1, however, their side setbacks would triple from 7.5' to 20'. This increase in the land required for single family homes, primarily by requiring much larger back yards, will most likely make homes more expensive rather than less expensive. This is because, again, according to assessed value, it is the land, rather than the building, that is the more expensive component component of a single or two-family property, as shown in Table 1. The setback grids are discussed below in Nonconformity and the Diminished Role of the City Council's Land Use Committee.

[Tables 4 and 5 are two sheet tables and the user can choose between absolute units and percentage results by toggling between the tabs at the tops of the tables.]

Besides presenting data analysis tables, this chapter also describes the unique and highly modified version of form-based zoning that the Planning Department is proposing to replace the current zoning ordinance's Floor to Area (FAR) as a method to control over-sized houses. In addition, this chapter looks into Massachusetts rezoning with respect to Massachusetts State Law M.G.L. 40A, §4 ("Uniform Districts") and the current zoning code section 7.8.2.A.1.a which exempts single and two-families from requiring a Special Permit where nonconformity is only due to lot size or frontage. And finally, this chapter look briefly at the new by right two-family specification that appears in Version 3 of Article 3.

Replacement of Floor Area Ratio (FAR) with a Modified Version of Form-Based Zoning

Newton's current traditional zoning ordinance limits single and two family house sizes through setbacks and through the use of Floor-to-Area Ratio (FAR). Setbacks are the required minimum rear, side, and front distances between a building's edge and a lot's border, while FAR sets a maximum ratio of a home's total floor area to lot area. Required minimum setbacks and maximum FAR ratios are specified as a function of a lot's Zoning District and (in Newton) lot age, as shown in Table 1, where, again, the official Zoning Map determines which lots are in which Zoning Districts.

FAR is a common method of limiting building size, including the oversized "McMansions" that many find objectionable in Newton. FAR in the current ordinance was adopted by the City Council in 1997 and adjusted several times, including a modification in 2009 to include additions. The current FAR values could easily be adjusted downwards by the City Council to further limit the sizes of single and two-family homes. Instead, the Planning Department is proposing to replace FAR with "form-based" zoning method of building size controls. This is done by the assignment of building types (A,B,C,D, Duplex) for single and two family homes. In the proposed zoning, building types set minimum footprint and maximum story height, also shown in Table 1. In addition, not all building types are allowed in all Zoning Districts, also shown in Table 1.

It is unknown who decided, or why it was decided, to reject Newton's current use of FAR, used by many municipalities in Massachusetts to limit building size, in favor of form-based zoning, which, again, is only used by Somerville in Massachusetts on a city-wide basis, and only since 12/12/2019. The Newton City Council has never discussed making this change once, much less taken a vote, although they have viewed consultant presentations about the form-based approach. Even the consultant presentations, however, did not include the imposition of small restrictive House Types that appear to have to been a unilateral zoning decision made by the Mayor's staff in the summer of 2018.

To be clear, the City Council could reduce the current FAR values again to meet the current objections to over-size houses, but this quick and established solution, has now been put on hold for several years to pursue the Planning Department's form-based approach instead.

The lack of a basic "who" or "why" in the rejection of FAR in favor of form-based zoning has been a source of contention at the ZAP meetings, with some City Councilors repeatedly requesting that ZAP discuss the logic and wisdom of this fundamental change, rather than simply treating the change from FAR to form-based zoning as an agreed upon goal with only the details to be worked out. These councilors have also questioned whether the Planning Department staff should be given authority over the City Council in making such a fundamental change. A 10/5/20 letter from City Councilors Marc Laredo, Lisle Baker, and Pamela Wright states this as follows: "These are key policy decisions that need to be made by the Council initially through the Committee, not by staff, with thoughtful deliberation after considering all points of view. Instead, what we appear to be doing is assuming the new framework is sound, and responding to questions about the details." 

These City Councilors are not alone in their doubts about form-based zoning in Newton. On 9/30/20, a group composed of a Newton builder and six Newton architects, who had been working with the Planning Department, also wrote a letter to ZAP, stating that: "Form-based zoning imposes a highly prescriptive approach to housing design and has been adopted predominantly in dense urban communities like Somerville. It is clearly ill suited to communities like Newton with a very diverse housing stock and varied lot sizes."

To make matters far worse, the Planning Department is not even proposing the "regular" form-based zoning that is used in Somerville and in other parts of the country. Instead the Planning Department has turned form-based zoning into "formula-based" zoning by modifying "regular" form-based zoning in four problematic ways. These modifications, not the use of form-based zoning itself, introduce a potential pro-developer financial benefit. In addition, these modifications, not the use of form-based zoning itself, appear to cause Newton's form-based zoning to be in violation of Massachusetts state law M.G.L. 40A, §4 ("Uniform Districts") in a way that Somerville's form-based zoning is not in violation.

"Regular" form-based zoning, is used by some municipalities in the country, although, again, Somerville is the only Massachusetts municipality using it on a city-wide basis, and they have only been using it since 12/12/19. [Somerville is also the densest municipality in Massachusetts.]

"Regular" Form-based zoning defines a set of allowed building types for a Zoning District and then the user can build any of those building types that fits on their lot, subject to specified form-based constraints. In some ways, this is similar to the traditional zoning because, usually, a building must still have adequate front/side/rear setbacks between the building's edges and the lot edges. When it comes to other building constraints, however, form-based zoning uses different building size specifications than traditional zoning and also gives some trade-offs between building types.

In some (not all) cases, for example, a form-based zoning code may require not only that a building not be too large for a lot, but that it also not be too small. This is something that can't be achieved through traditional setbacks, but can be achieved through an additional form-based specification of minimum building frontage over lot width, labelled minimum "facade build-out" in Somerville's case. This is what Somerville and other dense municipalities can do with form-based zoning to discourage small houses on large lots. Or, as in Somerville's case, a form-based zoning code may allow two types of detached single-family homes; A "cottage" with a 2 story limit allowed on a range of lot sizes and a 2.5 story "detached house" allowed on a range of slightly larger lot sizes, although the lot size and building footprint ranges overlap. This means that if the property owner wants a 2.5 story "detached house" house, then he can't build on the smallest lot size allowed for the cottage. Again, however, there are lots, specified in the Somerville code, that will accommodate either a cottage or a detached house, and more importantly, the differences in the two House Types are not large, meaning 2 stories vs. 2.5 stories, for example.

[To read more about the differences between conventional zoning and form-based zoning, refer to the Form-Based Codes Institute's (FBCI) definitions and code library, with the warning that the FBCI appears to be fairly promotional in nature. The cottage and detached house building types in Somerville's 12/12/19 adopted form-based zoning code (pgs. 39-42) can also be viewed as examples in which form-based zoning is tied to lot size.]

Hidden House-Size Gaps in Newton's Modified Form-Based Zoning

Newton's proposed version of form-based zoning is radically different from regular form-based zoning, including Somerville's, because of the following four modifications:

1. One of four different house types is assigned to every house in Newton using unpublished equations. These assignments are independent of lot size and are only a function of each existing home's current footprint, story height, and whether the home is in the proposed R1 district or not. These arbitrary and unpublished equations for the House Type assignments have been reverse-engineered by NewtonRezoning.org and are shown in Table 2. These equations result in House Type assignments outside of the districts where there are allowed - with 1/3 of House Type A's and 2/3 of House Type D's, being assigned outside of the R1 District. The equations are also very gerrymandered and seem designed to create an artificial House Type C, just to make that type highly non-conforming.
2. Hidden house-size gaps are ignored because lower limits of House Types aren't specified. Existing House Type A in R1 is defined by the reverse-engineered equation as anything over one story with a footprint >=1,800 sq. ft. OR anything between two and three stories with a footprint >1,600 sq. ft. Is that the definition of a House Type A for new construction? If so, that means that no one can build a conforming house in R1 with a story height greater than 1 and less than 2 stories and a footprint between 1,200 and 1,800 because that is not a valid conforming House Type in R1. That's a gap in allowed new construction house sizes that that no one is going to know about, because it is not defined anywhere in the code. This is because the upper limits of each House Type footprint are defined, but the lower limits are not, so it's impossible to know when a conforming House Type A becomes a nonconforming House Type C at the lower footprint end. Currently, if an existing home in R1 had a 1,700 sq. ft. footprint and a story height of 1.75 stories, it would be defined as a nonconforming House Type C, rather than a conforming house type A.  This means that a builder couldn't build that house in R1, but he would have no way of knowing that from the specification because the bottom limits of House Type A aren't specified. But if the same builder wanted to build a home with a 1,700 sq. ft. footprint and a story height of 2.5 stories, that house would be a conforming type A. Again, there is no way for the builder to know this counterintuitive result, because the equations in Table 2 are unpublished.
3. Once the initial assignment is made by the equation, there is no specification defining how this initial assignment can ever be changed - other than by the subjective judgement of the ISD Commissioner of what house type a property RESEMBLES. As it stands now, the only method that is written in the proposed code to change a building type is 2.4.3.A (V2) The Commissioner of ISD is responsible for determining the building type classification of an existing or proposed building. Classification of existing buildings as building types is based on which building type the existing or proposed building most closely resembles, and 2.4.3.C. (V2) A Property Owner may submit a written request to reassess the building type classification assigned to their property and receive a written decision in return. A property owner may also appeal the decision of the Commissioner of Inspectional Services to the Zoning Board of Appeals per sec 11.6. Importantly, 11.6 specifies a formal process in which, for example, the homeowner only has 30 days to file a ZBA appeal to challenge the ISD Commissioner's ruling. This subjective viewpoint of the ISD Commissioner extends to proposed construction as well. Having the ISD Commissioner control House Type rather than having complete House Type specifications gives too much power to the ISD Commissioner.
4. The House Types are very different from each other with regards to story height and the proposed zoning also imposes unusually small story height maximums of 1 story and 1.5 stories on two House Types (D,C) that are not seen anywhere else in Massachusetts, and possibly New England - as shown in Table 2. By comparison, again, Somerville's two single-family House Types are 2 stories vs. 2.5 stories, which is fairly small difference. This means that it is much more restrictive in Newton, for example, to get a House Type C assignment on your house, compared to a House Type B.  And it is ambiguous how a property owner can get their designation changed from a C to a B. Can they just "propose" to build 2.5 stories to become a House Type B and get that proposed House Type approved by the ISD Commissioner? If so, what is the point of the House Type C restriction since it doesn't really limit story height.

The four modifications together are so ambiguous that they create a potential pro-developer financial benefit. The way that Newton's proposed form-based code is written, there is absolutely nothing to keep the ISD Commissioner from telling a Newton property owner that their property can only have a one story house as long as that property owner keeps the property. If property owner sells the property, however, there is also nothing to keep the ISD Commissioner from telling the new property owner that they can build a 2.5 story building in the lot. Since there is no longer any relationship between lot size and building size, other than setbacks, and the ISD Commissioner's subjective judgement, the prior property owner will have a hard time even explaining Newton's unique and complicated form-based zoning in court, much less proving wrongdoing.

Please note that House Type D is approximately a one story version of House Type A, and that House Type C is approximately a 1.5 story version of House Type B. In "regular" form-based zoning where property owners could pick their building types, no one would ever pick D or C, because they have more restrictive dimensional standards than A and B, with no added advantages. D and C do not even have the advantage of being allowed on smaller lots than A and B, because, unlike "regular" form-based zoning (including Somerville), lot size and building type are not related. But - under Newton's "formula-based" zoning, property owners can be assigned a restrictive House Type C or D, with no clear path to change their assignment according to how the proposed ordinance is written.

It would be advisable for ZAP to require the Planning Department to provide ONE EXAMPLE of form-based zoning that is not tied to lot size, before even discussing the Planning Department's "formula-based" approach. NewtonRezoning.org has not been able to find a single example of form-based zoning with different single-family building types that are not linked to lot size, and that includes Somerville. We have also not been able to find a single zoning code in the Suffolk/Norfolk/Middlesex area that limits single-family homes to below 2 stories, and that includes Somerville.

Nonconformity and the Diminished Role of the City Council's Land Use Committee

The Mayor's staff has written a zoning code that makes almost all of Newton's single and two-family housing stock nonconforming, as shown in Tables 2 through 5. This increase in nonconformity is caused by three factors:

• Limits on footprint sizes, story heights, allowed districts of the assigned House Types.
• Larger minimum setback specifications, including getting rid of the smaller setback specifications for older homes. A setback is the required minimum distance between a building edge and a property edge.
• Rezoning of homes to a stricter zoning district such as SR2 to R1.

In the case of setback changes, Tables 4 and 5 show the combined effects of the setback specification changes and the rezoning to a stricter districts. These are presented as grids showing the number of homes with a given setback under the current zoning and then under the proposed zoning. There are 19,497 homes in the sample. Under the current zoning,14,613 of these homes have 7.5' side setback requirements.  Under the proposed new zoning, only 58 of these 14,613 homes have 7.5' setbacks; 3,795 have 10' setbacks; 9,281 have 12.5' setbacks; and an unlucky 1,479 homes have 20' required side setbacks, meaning their required setbacks have almost tripled from the current 7.5' setback requirement. [Note that building date rather than lot creation date was used to assign pre-1954 zoning, an issue discussed below in "Methodology and Data Checking."]

This increase in nonconformity seems intentional on the part of the Mayor's staff. As documented in Table 2 of Newton Rezoning and its Unstructured and Insular Process, the original May 2018 "Zoning Redesign" recommendations were for much larger House Type footprints that varied by zoning district. It was the Mayor's staff (Planning, ISD, Law) that unilaterally decided to assign small footprints and not vary the House Types by district in their writing of the October 2018 Version 1 of the proposed new code.

The huge rise in nonconformity under the proposed new zoning in also accompanied by a change in how the permitting process would deal with nonconformity. Most building permits involving nonconformity require a Special Permit issued by the Special Permit Granting Authority (SPGA), which is currently the City Council after a review process by the Land Use Committee.

Under Section 3.1.1.D in V1 and V2 of the proposed new ordinance, however, the SPGA for residential projects (up to 20 units) is moved from the elected City Council to the Planning Board appointed by the Mayor.

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