Newton Rezoning and its Unstructured and Insular Draft Process

[Updated 8/15/21 with minor formatting fixes. Meeting content as of 11/9/20.]

This chapter looks at the Newton rezoning process which officially began on 10/22/18 with the release of 10/19/18 Version 1.0 of the proposed new ordinance from the Planning Department to the City Council's Zoning and Planning Committee (ZAP). The proposed new ordinance is a comprehensive zoning ordinance designed to replace Newton's entire current zoning ordinance. The new ordinance consists of 12 "Articles," ranging from Article 3 on Residence Districts to Article 4 on Village Districts to Article 6 on Single Purpose Districts to Article 11 on Administration.

[Districts are defined locations within a municipality such that different zoning restrictions can apply between districts. Within a district, however, the zoning restrictions must be uniform by state law M.G.L. 40A, §4 (Uniform Districts). The zoning districts are defined on the official "Zoning Map," with the zoning ordinance and the zoning map both subject to state law M.G.L. 40A §5 ("Adoption or change of zoning ordinances or by-laws; procedure"). ]

As of 12/1/20, Newton's rezoning process has had 30 meetings of the City Council or ZAP in the two years since 10/22/18 - and the entire rezoning process is planned to finish in late 2021 with a City Council vote to adopt or reject the ordinance. 19 of the 30 meetings have been about Article 3: Residence Districts and almost all of the 30 meetings have been dominated by long PowerPoints of individual case-studies, rather than any city-wide data analysis. This has resulted in 1,044 PowerPoint slides being presented over the course of the 30 meetings.

Despite its extensive PowerPoint slide output, however, the rezoning process has produced no subsequent version releases of the full proposed ordinance since the original draft (V1) in October 2018, although there have been two additional (heavily marked-up) drafts of Article 3: Residence Districts and one additional draft of Article 2: General Standards and Article 9: Use Regulations, as well as some draft sections of V3 (V3.2, V3.3,V3.4). Nor have there been ANY public hearings in the two-year period since October 2018.

Newton's Unstructured Process and Somerville's Structured Process

The Somerville rezoning process of 2015-2019 is also being included in this chapter. This is partially because Somerville is the only other Massachusetts municipality that uses form-based zoning on a city-wide basis, and because Somerville's 2018 proposed ordinance appears to have strongly influenced the original draft version of Newton's proposed new ordinance presented to ZAP on 10/22/18. In addition, Somerville's rezoning process was also a comprehensive rezoning that replaced Somerville's old ordinance with a completely new ordinance.

Most importantly, however, Somerville's rezoning process is being included because Somerville's process was so much more straightforward, efficient, democratic, and honest, than Newton's rezoning process. This is primarily because Somerville's rezoning process was highly structured and Newton's process in completely unstructured. There were four separate formal version releases of the entire Somerville proposed ordinance and five separate public hearings, with four of these public hearings having extended written public comment periods of at least a month. Three of these releases and four of the public hearings occurred in the final 23 months of the Somerville process - between the 1/11/18 Somerville's proposed new ordinance Version 2 release and Somerville's City Council adoption vote of Version 4 (Update, Amended) on 12/12/19.

Somerville's structured process, of discrete written version releases and subsequent public hearings, allowed meaningful review, feedback, and resulting edits from the public because the public could clearly see what was being proposed in writing and present their specific opinions to Somerville's City Councilors. This resulted in each public hearing having a direct effect on the content of each subsequent version release, including the final adopted version.

This is not the case with Newton' completely unstructured draft process, where it is difficult for the public to know what is being proposed due to the lack of discrete version releases, and it is impossible for the public to have a voice due to the lack of public hearings. In addition, Newton's new versions of Article 3 have been illegible, heavily marked-up, versions in the smallest possible font where the reader must parse together different partial versions to understand the latest effective specifications. And this is two years into Newton's ostensible three-year rezoning process. Perfectly reasonable requests for legible Article 3 versions have been met with replies that these are only "discussion copies."

By the previously mentioned state law M.G.L. 40A §5, there must be a public hearing before a zoning ordinance adoption vote and the public also gets a minimum two-week period to view the proposed written ordinance being voted on. It appears that this single legally required two-week viewing period and this single legally required public hearing may be the ONLY times that the Newton public gets to view the written code and give feedback before the final vote in late 2021. But that will be FAR TOO LATE for the Newton public to affect the content of the final ordinance being voted on - unless the Newton public insists on the multiple written versions and public hearings supplied to the Somerville public in Somerville's highly structured comprehensive zoning reform process.

Newton's Insular Process and the Violation of the Newton City Charter

In addition to being unstructured, the Newton Rezoning process is highly insular, meaning that the writers of the proposed ordinance, and the ZAP Committee Chair Deborah Crossley, are totally uninterested in any viewpoint outside of the Mayor's staff. This insularity excludes resident viewpoints, professional viewpoints, and City Councilor viewpoints.

This insularity began with the hasty summer 2018 "speed-writing" by the Mayor's staff (Planning, ISD, Law) of the October 2018 proposed new zoning ordinance to replace Newton's entire current zoning ordinance. This five-month speed-writing process appears to start in June 2018, involve the rapid pasting together of other (often inapplicable) ordinances, and then emerge as the fully formed, highly detailed, 232 page 10/19/18 proposed new zoning ordinance, complete with a schedule and a planned City Council vote date in late 2019.

This summer 2018 speed-writing process was insular to the public and professional opinion because it totally ignored the prior "Zoning Redesign" public process. NewtonRezoning.org compiled the House Type building specifications as they have evolved from 5/10/18 through today, with results shown in Table 2. The original House Types that were presented to the public at the final 5/10/18  "Zoning Redesign" event were much larger than what appeared in the initial October 2018 proposed new ordinance. The original House Types specifications were also a function of Residential District and would not have resulted in the 94% single-family nonconformity rates of the proposed new ordinance versions beginning in October 2018. Evidently, the Mayor's staff unilaterally decided during the summer 2018 speed-writing process to cut the House Type footprints in half and to have only one set of House Types for all districts. NewtonRezoning.org could not find a single City Council or ZAP discussion of this very major unilateral decision by the Mayor's staff, which, again, appears to ignore both the prior public process and the Sasaki consulting work.

This insularity to professional opinion was repeated two years later in October 2020 with the shutting out of some of the advising building professionals who didn't agree with the ideology of the Mayor's Planning Department. This blocking of dissenting opinions is documented in a very detailed 9/30/20 letter and a follow-up 10/26/20 letter from a group of building professionals who had been advising the Planning Department, but who were subsequently excluded because they were critical of process and content of the ordinance, as follows:

• We believe that based on the evidence we and others have presented, the proposed zoning plan disregards many of the original goals of the City Council for updating the city’s zoning code. As the proposal has evolved, it has become increasingly clear that it is being driven by ideology and not an evidence-based approach to updating and improving the city’s land use policies. The lack of objective quantitative analysis of issues with current zoning by the Planning Department is unacceptable in a city which touts its high standards for transparency and professionalism. [9/30/20 Letter]

The 9/30/20 letter from the exiled building professionals was responded to by ZAP Chair Deborah Crossley in a 10/9/20 email to the City Council as follows:

• We are fortunate to have a large pool of talented generous individuals in Newton who volunteer their time and expertise, and as well that they wish to continue and provide their assessments and recommendations based on extensive experience working in Newton’s residential districts. But they wish to do so independently to control their own processes ‐ and then speak with us. Like many professionals ‐ they do not always agree. I think it is fair to say that they wish to proceed along a different paths ‐ even as they may come to the some of the same conclusions. This is their right. They are also within their rights to invite members of the planning Department to join them if they wish. Any attempts to spin a different tale are based on hearsay ‐ and is simply not true. [10/9/20 email]

It should be noted that the 9/30/20 letter from the building professionals was based on their firsthand experience, which by definition is not "hearsay." It should also be noted that the serious concerns raised by the building professionals' letters have never been discussed once at a ZAP meeting. And while the exiled building professionals were invited to the 10/26/20 ZAP meeting to discuss the Garage Ordinance, they have never been invited to discuss the far more important issue of the switch from Floor-Area-Ratio (FAR) to form-based zoning for Newton.

In addition to the disregard of professional opinions, the Planning Department and ZAP Chair Crossley have displayed an even greater disregard for City Councilor opinions. This disregard is most apparent in Councilor Crossley's treatment of City Councilors Marc Laredo, Lisle Baker, and Pam Wright repeated written requests (2/10/20, 4/10/20, 10/5/20) that ZAP have discussions about the huge global changes in the proposed new ordinance, rather than simply accept the global changes as inevitable, with only the small details to be worked out. This is stated most clearly in the 10/5/20 joint letter from Councilors Laredo, Baker, and Wright:

• As an institutional matter, we remain troubled by the manner in which this entire process is proceeding. While we appreciate the expertise that the Planning Department brings to this effort, it is the City Council, and not the Planning Department, that needs to debate the merits of any proposal and decide how to proceed. Instead, we have had repeated presentations by staff with questions that they want answered in order for them to work on their proposals.
• The decision whether to continue to use Floor Area Ratio (FAR) as a check on oversized residential construction is a good example. While the Department offered a brief written response about FAR in the attachment A to its last memorandum dated September 25, the Committee itself has not had a chance to discuss whether to discard this tool that originated from a prior Planning Department’s advice. If FAR it does not work well presently, are there ways to modify it so it can be improved? What are the experiences of other communities that use FAR? Have any other communities adopted FAR and then abandoned it? If so, why? The same types of questions need to be asked of other elements discussed in the September 30 architects’ memorandum. 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. This strikes us as backwards, especially since the original idea of fixing some specific issues such as oversized construction and front-facing garages has been superseded by this grand redesign for Newton zoning that the Department, but not yet the Council itself, has endorsed.
• In summary, policy about zoning ends and means should be explicitly decided by the Council, not implicitly by the Planning Department. A way to begin frame that decision is to provide the members of the Zoning and Planning Committee, on behalf of the Council, some time to discuss the current Planning Department proposals, including whether alternatives involving our current zoning code should be considered.

These concerns by the Councilors Laredo, Baker and Wright, were brushed aside by ZAP Chair Crossley almost as dismissively as she brushed aside the building professional's concerns. Only in this case, Councilor Crossley made the argument that once the zoning goals were unanimously passed by ZAP on 4/27/20, the City Councilors' role was essentially over and it was up to the Planning Department to turn those goals into zoning code which the Planning Department then worked hard to do.

On 4/27/20, the ZAP Committee did vote unanimously on the "goals" of the proposed new zoning, 18 months after the 10/22/18 release of Version 1.0 of the proposed new zoning. These vague and nonquantitative goals were as follows:

1. Housing: A zoning code more responsive to a demand for housing that serves a range of incomes. Promote sustainable community development patterns.
2. Sustainability: Environmental stewardship, fiscal strength and meeting community needs,
3. Context: Preserve and protect what we like in our neighborhoods. Encourage new development to fit in the context of our neighborhoods and villages.

These are very general and innocuous goals that no one is going to vote against, but they are also not specific enough to justify any particular zoning approach, such as the benefits of FAR vs. form-based zoning.

Nevertheless, at the 10/15/20 ZAP meeting, ZAP Chair Crossley used the existence of the 4/27/20 "goals" and the "hard work" of the Planning department to dismiss the 10/5/20 City Councilors' letter regarding the greatly diminished role of the City Council in writing the proposed new zoning ordinance. This argument is made in an important exchange between Councilor Baker and Councilor Crossley at the 10/15/20 ZAP meeting. This exchange is not captured the meeting report, but can be viewed, however, at the 3:12:00 time mark on the newtv.org video of the meeting.

Councilor Crossley's use of the 4/27/20 goals to strengthen the insularity of the rezoning process by diminishing the City Council's role is the most draconian move by Councilor Crossley, but it is not the first one she has made with the same intent. Other similar Councilor Crossley moves include the cancelling the 8/31/20 public ZAP meeting in favor of private one-on-one meetings between City Councilors an the Planning Department, a move that resulted in City Councilor queries to the Newton Law Department and the Attorney General, regarding the Open Meeting Laws. And then there was Councilor Crossley's request that the ZAP City Councilor members ask questions from a question list supplied by the Planning Department, rather than the questions that the City Councilors, or their constituents, wanted to ask. All of these moves by Councilor Crossley have increased the insularity of the rezoning process so that it is always the Mayor's staff (Planning, ISD, Law) that is in control of the main points of the proposed new ordinance with the City Council reduced to filling in the tiny details around the staff defined framework.

And the Mayor's staff have largely used their insularity in the writing process to increase the Mayor's future power through the written content of the proposed new ordinance: First the staff greatly decreased the allowed footprints and story heights of many single-family homes, rezoned a large section of homes from SR2 to R1, and greatly increased the setbacks -  so that  the proposed zoning dimensions would result in almost the entire housing stock of single and two-family homes becoming nonconforming; Then the Mayor's staff changed the Special Permit Granting Authority, which deals with nonconformities, from the City Council's Land Use Committee to the Mayor's appointees on the ZBA and the Planning Board; And the Mayor's staff increased the power of the ISD Commissioner, appointed by the Mayor, by giving the ISD Commissioner jurisdiction over House Type assignments to existing homes, based on his subjective opinion of what a home "resembles;" And, finally,  the Mayor's staff has written in zoning benefits into the proposed new ordinance to help Newton's non-profit schools, Newton-Wellesley Hospital, and the private golf courses despite their lack of tax payments.

The main problem with all of this insularity of Newton's rezoning process is not that this insularity is close-minded and unfair - which it is. The main problem is that this insularity is illegal because it violates the Newton City Charter.

Any proposed new zoning ordinance is LEGISLATION, not DESIGN, and the Newton City Charter's very first page (Section 1-2: Forms of Government) is clear that the City Council is in charge of legislation, not the Mayor's staff, who are part of the executive branch. This is stated by the Newton City Charter as follows:

• The administration of the fiscal, prudential, and municipal affairs of the city, with the government thereof, shall be vested in an executive branch, to consist of the mayor, and a legislative branch, to consist of the city council. The executive branch shall never exercise any legislative power, and the legislative branch shall never exercise any executive power.[Newton City Charter Section 1-2]

When the Mayor's staff (Planning, ISD, and Law) tossed aside the prior "Zoning Redesign" public process, including the public event Sasaki recommendations, speed-wrote (or speed-pasted-together) an entire comprehensive rezoning ordinance in a five-month period, and then presented that comprehensive ordinance to the City Council's ZAP Committee on 10/22/18 with a scheduled passage date of one year later, that was already too much legislative power being wielded by the executive branch.

This 10/22/18 release might have been acceptable, however, as a Zoning Ordinance proposed by the Mayor to be evaluated and reported on by the ZAP Committee in a timely manner. This would have been similar to the Somerville process in which the zoning overhaul was presented by the Mayor to be evaluated and rejected in a structured manner  - until a mutually agreed-upon ordinance version was eventual passed. But this was not what happened in Newton. Instead, it has somehow been presumed that the City Council's job is to approve the executive branch's complete rewrite of Newton's zoning LAWS, with only a few small details being changed by the ZAP City Council members. That illegal presumption has only hardened since Councilor Crossley took over as ZAP Chair in January of 2020 where any questioning of the illegal presumption is shut down by Councilor Crossley - through the methods described above.

If the majority of the City Councilors are not going to complain about this violation of the Newton City Charter, then Newton residents should complain to their City Councilors and the Mayor - and in a forceful manner. If the proposed new ordinance is passed, there will no longer be any balance of power between the City Council and the Mayor, as most future power over construction will reside with the Mayor's staff and appointees. This permanent change in municipal government power has NOTHING to do with affordable housing or climate change and everything to do with making the Newton government more centralized and less accountable to its residents.

Newton and Somerville Rezoning Process Phases

The Newton and Somerville processes are shown in Table 1, with Table 1A showing the Newton process, Table 1B showing the Somerville process, and Table 1C showing the comparative timelines between the two processes. Tables 1A(Newton) and 1B(Somerville) contain links to ordinance version releases and meeting reports.

[Users can toggle between the Newton process, the Somerville process, and the comparative timelines using the tabs at the tops of the tables.]

Table 1C, the comparative timeline, shows that both the Somerville five-year process and Newton's ostensible three-year process had significant process breaks. Somerville suspended its five-year process for 19 months from 5/31/16 to 1/11/18 while its Planning Department rewrote the first roundly rejected "Zoning Overhaul" version into a more acceptable second version. Newton's ostensible three-year process was also suspended for 10 months from 3/25/19 to 1/13/20, but it does not appear that the Planning Department did any substantial work during this time, especially as the Planning Department staff leadership positions for the rezoning were not filled until November 2019. The Somerville and Newton breaks are explicitly highlighted because NewtonRezoning.org is comparing Somerville's "five-year process" to Newton's "three-year process," although both processes were not continuous processes.

Table 1B, the Somerville process, is divided into six sections, corresponding to the version release sections, beginning with "A: First Zoning Overhaul Version Release - 1/22/15 through 5/31/16" and ending with "F: Vote on Adopting Zoning Overhaul - 12/12/19." Viewers of Table 1B can see the structured fashion in which Somerville's comprehensive zoning reform was carried out with extensive input by Somerville's City Councilors and residents through public hearings, extended public comment periods, Land Use Committee meetings dominated by City Councilor discussions, and discrete version releases.

Because Newton's process is so unstructured and has no discrete version releases or public hearings, the Newton process, in Table 1A, is not divided into version release sections, but rather into marketing campaign sections. These are the different marketing campaigns that were used to try to sell the proposed new ordinance to the City Council and the public. These marketing campaigns ranged from the initial "B: Data Marketing Campaign - 10/22/18 to 3/25/19" to "D: Crisis Marketing Campaign -  6/29/20 to the Present."  

In addition to ZAP and City Council meetings discussing Newton's proposed new ordinance, Table 1A also includes a few other entries that are not draft discussion meetings. These include a "Pre-Draft" section as well as the series of monthly articles/editorials that were published in the Boston Globe, beginning in July of 2020, in which zoning was blamed for economic inequality.  Only draft discussion meetings are included in the meeting count of 30, however.

Newton Draft -  Data Marketing Campaign Phase - 10/22/18 to 3/25/19

In the data marketing campaign phase, the Planning Department promoted the proposed new ordinance as coming from Pattern Book and Special Permit data. Eventually, however, the data was shown to be problematic.

Specifically, the Build-out Analysis showed that the proposed new ordinance increases possible house sizes, so House Type dimensions were adjusted downwards. Then Special Permit Data analysis showing that FAR increases Special Permits was found to have inaccurate data.

On 3/15/19, Mayor Fuller announced the suspension of the rezoning effort until 2020. There was one additional meeting on 3/25/19 and a 3/25/19 Planning memo which stated (pg. 22):

• Overall the Planning Department is highly disappointed in the inaccuracy of the data presented to the Zoning and Planning Committee. Much of this work is data-driven as staff attempts to obtain objective, fact-based information about the city and use that to shape policy recommendations. The accuracy of this data is essential, and staff remains focused on ensuring that the new development tracking database will be a reliable source of data.

NewtonRezoning.org also experienced issues with the data, specifically the GIS setback and footprint data provided by the Pattern Book consultant, Sasaki, Inc. This data did not always match land survey data, the footprint was sometimes very different from the Tax Assessors ground floor measure, and there were many zero values. The Planning Department was notified of the land survey discrepancies, but did not respond. Newton residents can check the Sasaki measured GIS data for most individual non-condo single and two-family homes at Newton Rezoning and YOUR Home. Newton residents who feel that the Sasaki measured GIS data differs from their home and lot dimensions should also contact the Planning Department and the City Councilors.

Newton Draft  - History Marketing Campaign - 1/13/20 to 6/15/20

In the history marketing campaign, the Planning Department depicted the rezoning as being the culmination of years of preparatory work rather than the result of data analysis. In fact, in this second history marketing campaign, there is almost no data analysis presented   - as references to data are replaced by references to "historical documents."

The rezoning effort restarted as an undocketed item at the 1/13/20 ZAP meeting with the release of a 1/10/20 Planning Department Memo entitled "Chair's note: requesting a presentation from the Planning Department on the History of Zoning Redesign." This was a memo containing 80+ links to the historical documents of the redesign process.

ZoningRedesign.org did not look at all 80+ documents, but did read the May 2010 FAR Working Group Final Report  because it played such an important role in the Planning Department's written justification for the switch from FAR to form-based zoning. This justification appears on pgs. 6-7 of the 1/27/20 Planning Agenda Memo as follows:

• The FAR Working Group Report (2010) determined the existing Zoning Ordinance could not be altered sufficiently to solve the problems facing Newton, such as tear-downs. The FAR Working Group was appointed in June 2009 to the study floor area ratio (FAR) in the City of Newton and to propose amendments to the Zoning Ordinance designed to ensure that FAR regulations more accurately reflect current conditions, are easier to apply and enforce, and result in new construction that is in keeping with surrounding structures and the Newton Comprehensive Plan. Two critical findings that both the Zoning Reform Group and the Zoning Redesign efforts used to justify a new Zoning Ordinance format are:
• The City’s existing residential zoning districts are too blunt to account for the range of neighborhood character, yet acknowledged the need, at present, to develop FAR recommendations that work within existing zones.
• That a number of elements of massing cannot be regulated by FAR limits, or indeed, by other dimensional controls, but that these nonetheless influence neighborhood character.

In reading the full 2010 FAR Working Group Report, however, the above Planning Department interpretation of the report seems disingenuous. Furthermore, the above quotes from the 2010 FAR Working Group Report are truncated in a manner that obscures their true meaning. The first quote is clearly a criticism that Newton has too few RESIDENTIAL DISTRICTS defined, not that FAR itself should be rejected. The second quote states that there are some elements of massing that cannot be defined by DIMENSIONAL CONTROLS, meaning any dimensional controls from FAR or form-based zoning or any other zoning code that specifies dimensions. The full quotes are as follows - with the emphasis on RESIDENTIAL ZONING DISTRICTS and DIMENSIONAL CONTROLS added:

• The Working Group found the City’s existing RESIDENTIAL ZONING DISTRICTS too blunt to account for the range of neighborhood character, yet acknowledged the need, at present, to develop FAR recommendations that work within existing zones. The Group found that, as expected, Newton is distinguished by the richness of its residential architecture and also by the varied nature of its neighborhoods, which developed at different times and reflect unique histories, building styles, and densities. There is significantly less variation among the City’s zoning districts, however: all the City’s single-family neighborhoods are divided into only three Single Residence zoning districts. For example, much of Oak Hill Park, a neighborhood characterized by postwar ranches, many of which are well below FAR limits, is zoned SR2, as are the majorities of Newton Highlands and Newton Centre, where many older Victorian homes exceed FAR limits. Working within existing zoning designations presents challenges to preserving the character of each neighborhood.
• The Working Group found that a number of elements of massing can not be regulated by FAR limits, or indeed, by other DIMENSIONAL CONTROLS, but that these nonetheless influence neighborhood character. These included quality of design, compatibility of design with neighboring structures, topography, and landscaping.