Legislative Update – December 2012
Posted by D. Anthony Fields, AICP, APA-MA Legislation and Policy Officer
The 2011-2012 Legislative Session is drawing to a close. Of the 7,000 bills filed for the two year session, 226 were passed in 2011 and 343 passed as of early December 2012. The formal session ended at the end of July, and the Legislature is now in “informal session”. Typically, only home rule petitions will likely see action during the informal session. These are requests to benefit a specific town or person. Any bills passed in the informal session need unanimous approval. An exception this year may be the “dam” bill (S. 1985). The bill initially sought $17 million for dam repair and removal, and would allow communities to bond for dam removal or institute betterment fees to repair dams with structural issues. The impact of superstorm “Sandy”, and Irene before that, has coastal lawmakers adding seawalls to the list of eligible structures to be repaired with these funds. Some fear that seawall repair will consume the entirety of the funding, leaving the original intent of the bill unmet.
The impacts of Thanksgiving weekend shopping and holiday retail sales taxes are still being evaluated, but pay attention to the news that the Commonwealth revenues are not meeting predictions, meaning that it may not be able to meet the current fiscal year budget, and that usually means programs and personnel must be cut, and this is before the potential additional loss of revenues of the federal “fiscal cliff” (officially called the Budget Control Act of 2011).
CPA Amendments achieved as budget rider
The FY13 budget signed by Governor Patrick on July 8th incorporated amendments to the Community Preservation Act that had been sought by the community preservation coalition for some time. On the financial side, the bill provides for a one-time transfer of $25 million from the state surplus to be moved into the CPA Trust Fund at the end of the fiscal year. Legislators indicate an intent to continue this transfer in future years.
The CPA trust fund has previously been funded by fees collected at the registries of deeds. Slower pace of real estate sales have yielded a decline in revenues, combined with growth in the number of participating communities, meaning that there is less money to be distributed in matching funds. Originally the CPA Trust Fund was able to provide a 100% match for locally raised funds, but the prediction for this year is that the match will only be 22%.
On the technical side, the bill amended 8 sections of the CPA statute. The amendments are intended to give communities more flexibility in administering their local goals. The funding can now be used for renovating parks and playgrounds that were not acquired with CPA funds. Communities can also include other local revenue sources in the CPA account, including private donations, potentially increasing their state matching funds. Specific details can be found on the CPC website (www.communitypreservation.org)
Casinos and Gaming
Highlights of this past session include the casino bill, signed by Governor Patrick on November 22, 2011. The bill authorizes 3 resort casinos for different geographic areas of the Commonwealth and 1 slot parlor (sometimes referred to as a “racino” on the presumption that it will be located at a dog race track) that can be located anywhere in the Commonwealth. The three geographic regions where a full-scale casino could be located are the “East”, consisting of Suffolk, Middlesex, Essex, Norfolk and Worcester Counties, the “West” consisting of Hampshire, Hampden, Franklin and Berkshire Counties, and the “Southeast”, consisting of Bristol, Plymouth, Nantucket, Dukes and Barnstable Counties. Something equivalent to a right of first refusal to the Southeast license has been granted to the Mashpee Wampanoag Indians.
Former opposition to such legislation in past sessions succumbed to support for the jobs and new revenues that such facilities are expected to bring to Massachusetts. The law established the Massachusetts Gaming Commission to license and oversee the casino and slot parlor operations. The Commission members were appointed by the Governor over the past year. Now would-be applicants are preparing applications for potential submission. Several initial proposals have been proposed to various local communities but none yet really moving forward (as of the beginning of December).
The new law does provide several protection provisions for host communities and abutting communities. The main hurdle may be that an eligible applicant must receive a favorable vote at a local election in the host community. In its attempt to gain that support, an applicant must identify their impacts on the local infrastructure and sign an agreement with the host community for a community impact fee and/or otherwise mitigate the impacts. An applicant must also negotiate and sign an agreement with abutting communities for impact fees.
Once local approval is in hand, the Gaming Commission will hold a public hearing on the application. The Commission is required to review the impacts on the host and abutting communities and the mitigation plan to address those impacts. It is unclear whether the Commission can increase or reduce mitigation required in a local agreement. The Commission is also required to consider the level of public support for the proposal.
The new law creates more than a dozen new special purpose funds to receive a portion of license fees and taxes on casino profits, including several that are intended to directly benefit communities. A Gaming Local Aid Fund would receive 100 percent of the tax revenue from the slot parlor and 20 percent of the tax revenue from the full-scale casinos, although more than half of the casino amount would be diverted to a special Local Aid Stabilization Fund over time. The Gaming Local Aid Fund is intended to offset anticipated losses in Lottery revenues due to competition from the new gaming facilities. Other new funds include the Community Mitigation Fund to help cities and towns with the impact of a new gaming development, an Education Fund to help pay for K-12 and higher education programs, and a Local Capital Project Fund.
To provide oversight of the Gaming Commission itself, there will be a 15-member Gaming Policy Advisory Committee. This Committee will be led by the governor and will include three representatives from the host and abutting communities of each of the casinos. This Committee is then required to establish several subcommittees, including one on community mitigation to help address the infrastructure needs of affected communities. Other subcommittees include public safety, to address needs of emergency responders, and another for addiction services to address social service needs.
Each of the 3 regions is also able to create a special local community mitigation advisory committee, to provide additional feedback to the Gaming Commission on mitigation needs.
On October 16th, the Massachusetts Gaming Commission appointed its ombudsman. The ombudsman will serve as the contact for potential host communities and their abutting communities to provide technical assistance in negotiating agreements with potential casino developers. The ombudsman will also be guiding these developers through the application and licensing process. If your community has been or is being approached by potential casino developers, contact Ombudsman John Ziemba at 617-979-8400.
The Massachusetts Gaming Commission just hosted a public forum on December 12th on the design considerations for casino facilities in Massachusetts. The “Promoting Sustainability and Strengthening Communities: Design Excellence for Massachusetts Casinos” event sought ideas about promoting design standards to achieve sustainability and aesthetic excellence, and how to mitigate community concerns and impacts. The event was co-sponsored by the Massachusetts Chapter of the American Institute of Architects, the Boston Society of Architects, and the American Council of Engineering Companies. For anyone interested, follow-up information will likely be made available at www.mass.gov/gaming.
Economic Development – “Jobs Bill”
In August 2012, Governor Patrick signed an economic development bill with numerous initiatives designed to boost the state’s economy and create jobs by supporting infrastructure improvement and innovation. The legislation includes many provisions that are of interest to communities. The provision perhaps garnering the most attention is that the law extends most local permits by “another” two years, building on the 2010 “Permit Extension Act” provisions of the prior legislative session. This does mean that some local permits have now received a four-year blanket extension from the state.
The new legislation also expands the expedited permitting provisions of Chapter 43D to include residential development as allowed under local zoning ordinances.
The MassWorks infrastructure program has been formally consolidated so that a single municipal application is eligible for funding from six potential funding streams. Grant reporting requirements were also streamlined. MassWorks is administered by the Executive Office of Housing and Economic Development.
The Infrastructure Investment Incentive (I-Cubed) program has received additional funding. This program targets large scale infrastructure improvements in conjunction with certified economic development projects. The cost of the infrastructure improvements to be financed through I-Cubed bonds must be between $10 million and $50 million, and the certified economic development project must generate new jobs, increase property values, and create new tax revenues. I-Cubed is administered through the Executive Office for Administration and Finance.
The Business Improvement District (BID) laws have been revised. Businesses within a BID, where each member pays a surcharge to finance improvements or services beyond what is normally provided by a municipality, will no longer be able to avoid paying the surcharge while enjoying the benefits.
A new LID program has been created, not “Low Impact Development” that most of us should be familiar with, but a Local Infrastructure Development program. The new LID program enables municipalities, at local option, to establish a targeted development zone in which members pay, based upon advance agreement, an assessment to finance pre-approved infrastructure improvements. Stay tuned to decipher the nuances between BID and LID as defined in Massachusetts.
Also in August at the close of the formal session, Governor Patrick signed an energy bill developed by a joint House-Senate conference committee. This bill was intended to promote the energy goals of the 2008 Green Communities Act, and reduce the cost of electricity along the way. Several months of debate and negotiations yielded a final bill that is more beneficial to communities because it preserves the ability of communities to collect property taxes or negotiate a payment in lieu of taxes (PILOT) for solar and renewable energy facilities, which is what the pre-existing laws enabled communities to do. The initial energy bill sought to exempt renewable energy facilities from property taxes. This was perceived as providing developers with a windfall and reducing the tax revenues that communities collect to pay for local services.
The bill expands the Energy Efficiency Advisory Council to include a representative from a municipality and increases the net metering cap from 2 percent to 3 percent for municipalities.
On June 29th, Governor Patrick signed a $200 million Chapter 90 bill which had been delayed in the Legislature for several months, affecting the ability of local communities to perform local road maintenance or pay for design work. The delay revolved around whether this funding component should be part of a broader transportation bond bill. A conference committee eventually overcame the Senate’s reluctance to separate the Chapter 90 funding from the other $1.5 billion being debated. Moving forward, the question has been whether funding can be restored to at least $300 million per year, and to provide a multi-year funding mechanism to avoid annual haggling as occurred this year. Look for advocates to promote a 3-year $1 billion Chapter 90 proposal in the next session. This would enable DPW Superintendents and Town Engineers to breathe a little easier for the next few years.
On August 29th, Governor Patrick signed legislation that restricts the use of phosphorus and nitrogen in lawn fertilizers, a major victory for our environmental allies. This action is expected to help communities comply with federal regulations requiring that phosphorous be removed from stormwater runoff. Phosphorus from fertilizers has been identifies as a major source of pollution that contributes to algae blooms in rivers, streams, lakes and ponds. Therefore the U.S. Environmental Protection Agency has ordered municipalities, treatment plants, businesses and other large producers of wastewater to reduce the amount of phosphorus being discharged into rivers, lakes and streams by as much as 65 percent. Some feared that this EPA mandate might require some cities or towns to build or modify treatment plants to remove phosphorus from stormwater runoff. It is hoped that the new law will enable a natural reduction in phosphorus to meet the mandate. The Massachusetts Department of Agricultural Resources now has 14 months to develop regulations that will allow only low-phosphorus or phosphorus-free fertilizers to be used on lawns. Certain agricultural uses and the establishment of new lawns are exempt from the law.
Animal Control (including Kennels)
Not immediately obvious as a planning or zoning legislative issue, but a rewrite of the state’s animal control law, signed by Gov. Deval Patrick in early August, requires cities and towns to examine local bylaws, ordinances and practices related to dogs and other domestic animals and make any changes needed to be consistent with the new law, and as kennels are an occasional listserv topic, here is a synopsis of the new law.
The new statute, enacted as Chapter 193 of the Acts of 2012, took effect on October 31st. It amended existing definitions and added several new ones, such as “dog officers” must now be called “animal control officers,” and there are specific definitions for nuisance dogs, dangerous dogs and different types of kennels. Local bylaws must be consistent with the new state law. So whether you have an existing kennel definition or are researching one, you need to review this new law for consistency. Much of the law addresses a new statewide framework for regulating dangerous and nuisance dogs that preempt any local regulations. For example, the new law prohibits local bylaws that are based solely on the breed of an animal, and instead defines dangerous dogs based on specific behaviors. The new law also addresses the process for resident complaints about dangerous dogs, specifying steps the community must take as well as an appeal process for the dog owner. Up to seven actions are available to communities, with euthanization being the most severe. All are described in the law. Banishing any dog from the community is not one of the possible actions.
Billboard Regulations (New):
Following a few months of public comment on draft regulations, and a 3-year pilot program, new state regulations governing billboards went into effect December 7, 2012.
Substantial public comment in support and in opposition to electronic billboards (also referred to as digital signs, although “digital mural” may be the most catchy) had been submitted. (Among the leading opponents was former Governor Michael Dukakis.)
The pilot program began in 2009 and allowed electronic billboards to be erected in Chicopee, Fall River, Foxborough, Lawrence, Medford, New Bedford, and Stoneham. At the end of the pilot program, MassDOT concluded that electronic billboards do not create a safety hazard for motorists. It has however tried to find a balance among the comments submitted by supporters and opponents.
The regulations primarily address off-premises billboards, typically as are found or likely to be proposed along highway corridors, and establish state permitting requirements. A main concern of local communities has been accommodated, in that local permitting for these off-site billboards has been retained (as is the case for on-premises signs). The regulations do prohibit the use of flashing lights and moving video in the display. Displays must be static for at least 10 seconds. Audio is also banned under the new regulations. Another bone thrown to local government, electronic billboards will be required to display public service announcements for at least 15 hours every month. Of potential future concern, there is no cap on the total number of permits that MassDOT can grant. These new regulations can be found at: www.Massdot.state.ma.us/highway/Departments/OutdoorAdvertising.aspx.
While zoning reform regroups for the next session, pension reform is something that passed in this session, which I raise on behalf of up and coming planners who aspire to public service. Public employees hired after April 2, 2012 are subject to different rules than those of us already in the system.
- Increasing the retirement age from 55 to 60 for most public employees;
- Increasing the age of eligibility to receive a full pension from 65 to 67;
- Basing an employee’s pension benefits on their highest five years of earnings instead of their highest three; and,
- Prorating benefits for employees in more than one classification group (to prevent someone who may have only worked for a short period in a high-earning group from collecting an inflated pension, more common with public safety than planning).
The bill also includes “anti-spiking” provisions. For example, an employee who moves into a position with a higher pension at the end of his or her career must be in that position for at least one year in order to qualify for the higher pension, and the annual increase in pensionable earnings is limited to 7%.
The pension reform legislation passed in November 2011 also created 3 commissions to study specific aspects of the pension system for consider of further reforms in the future.
Federal Update – “MAP-21”
On July 6th, President Obama signed “Moving Ahead for Progress in the 21st Century (MAP-21)”. This is the new federal transportation bill replacing “SAFETEA-LU”, which needed to be extended 10 times since its expiration in 2011 while Congress debated how to fund national transportation infrastructure and transit needs. MAP-21 authorizes $118 billion in federal transportation spending over 27 months, rather than the 6 year time frame common to the past several transportation bills. Massachusetts will receive approximately $2 billion in aid during this time period.
The compromise legislation is the product of a 47-member conference committee after 2 months of negotiations. The resulting bill makes many significant changes, but no increase in funding, and has been deemed a disappointment by advocates of walking, biking, transit and sustainable transportation systems.
MAP-21 eliminates transportation programs that directly funded roadway repair, except that National Highway Performance Program maintenance funding may be used for roadway repair. However, highways within the National Highway System will receive priority. Funds can not be used for local bridge maintenance, a significant change of concern for Massachusetts.
MAP-21 also eliminated the Transportation Investment Generating Economic Recovery (TIGER) grant program. The nearest equivalent is the Projects of National & Regional Significance (PNRS) program, which is funded at $500 million. This is a competitive funding program under which states can apply for funding, but local communities cannot. TIGER had allowed for communities to apply for funding.
The Transportation Infrastructure Finance and Innovation Act loan program, funded at $1 billion, remains a source of financing for transportation projects, but approved projects must demonstrate a source of revenue for loan repayment.
Perhaps the most disappointing change, programs for pedestrian and bicycle projects have been reorganized and funding for these initiatives has decreased by one-third. Transportation Enhancements, Safe Routes to School, and Recreational Trails programs no longer exist under those titles, and have been grouped into a single Transportation Alternatives program. Half of the funding will be provided to regional planning organizations for distribution to communities through a competitive application process. The other half of the funding is distributed to the states, who can choose to opt out of the Transportation Alternatives program and instead spend this funding on road maintenance, bridge repair and other transportation projects.
MAP-21 also weakens the environmental review process from the municipal perspective, as transportation projects receiving less than $5 million in federal funds will be exempt from federal review.
Most of the funding for programs under MAP-21 comes from the revenue generated by the federal gas tax which is placed in the federal Highway Trust Fund. Since there is no proposed increase in funding, the federal gas tax remains unchanged at 18.4 cents per gallon. Other supplementary funds are supposed to be transferred from the General Fund to the Highway Trust Fund as needed to cover the remaining costs, assuming that funding commitments are actually met.
Just as transportation finance is a major topic of discussion in Massachusetts (partly based on a report citing the need to spend $20 billion over 20 years just to repair existing roads and bridges), there is a similar concern on a national scale over the sustainability of the federal Highway Trust Fund. The combination of a reduction in vehicle miles travelled and increases in fuel economy has led to less federal gas tax dollars being collected. Fewer gas tax dollars means less money for the trust fund and programs operated there under. Changes to transportation financing mechanisms will likely be topics of discussion nationally and within each state over the coming two years. And since MAP-21 only covers two years, we hope Congress will begin its discussion of a new transportation bill early in the new session.
In case you were wondering about the fiscal cliff, trust funds are theoretically not affected by the pending changes of the Budget Control Act. Therefore programs under MAP-21 should not be affected if compromise on other fiscal issues is not reached by January 1st.
Senate votes to preserve funding for Partnership for Sustainable Communities programs
Posted on September 20, 2011 by Smart Growth America
Washington, DC – The Senate Subcommittee on Transportation, Housing and Urban Development voted today to preserve funding for two key components of the federal Partnership for Sustainable Communities in the FY2012 appropriations bill. Smart Growth America President and CEO Geoff Anderson released the following statement:
“The Partnership for Sustainable Communities is helping dozens of communities across the country grow in ways that support their local economies and are fiscally responsible. We applaud the Senate for protecting these innovative, effective programs.
“The Partnership’s programs are helping small towns rebuild their main street, and they’re helping mid-sized cities improve their business districts. These projects are rebuilding roads, renovating abandoned properties, creating pedestrian friendly downtowns and dozens of other worthwhile projects that will help American communities recover from the economic downturn and stay strong in the coming decades. We strongly encourage Congress to approve funding for these critical programs.”
Today’s bill includes $90 million for HUD’s Sustainable Communities Initiative, a $10 million decrease from FY2011, including $63 million for Regional Planning Grants and $27 million for Community Challenge Grants. The bill also includes $550 million for USDOT’s TIGER program, an increase of $23 million from last year. The bill is scheduled to be marked up tomorrow by the Appropriations Committee. Amendments will be allowed.
The Partnership for Sustainable Communities is an investment in more efficient and effective government. It helps communities break down barriers in existing federal housing, transportation and infrastructure programs while providing an incentive for improving regional collaboration among public, private and non-profit stakeholders. Projects supported by these grants are the product of local leadership driven by the vision and values of local residents, save households and their municipalities money and help to build a 21st century economy.
Comprehensive Land Use Reform & Partnership Act
APA Policy Guides
APA policies are developed through a thorough process of chapter and division involvement under the overall guidance of the Legislative and Policy Committee.
In addition to articulating specific policies that establish principles for better addressing our issues, APA develops more specific guidelines that recommend specific actions on the part of APA members through leadership, chapters, divisions, and allied organizations that move toward an improved social and political environment for planning to play its most effective role. Together, these two elements — policies and general recommendations — form APA Policy Guides.
The process begins with the selection of a topic or issue. These topics are, for the most part, APA’s Legislative Priorities. After a topic is chosen, a team of authors and reviewers is selected to produce a draft guide for review by the Legislative and Policy Committee. Once the draft guide is approved by the Legislative and Policy Committee it is sent to all APA Chapters and appropriate APA Divisions for review and comments. Comments are submitted to the Legislative and Policy Committee and a final draft is prepared for presentation at a Chapter Delegate Assembly. During the Assembly, chapter delegates make any final changes and then vote to adopt the draft guide. Once the guide is adopted, it is forwarded to the APA Board of Directors for ratification.
To learn about APA policy guides, see: http://www.planning.org/policy/guides/