Delusionary Zoning, Cont’d.

My previous post about Amherst’s inclusionary-zoning bylaw opened with a quote about the appropriate direction in which to move when standing at the edge of a precipice.  As if to compensate for its potentially Brian-Williamsical quality, a Facebook commenter provided a substitute, which I must remember to use from now on. After impugning my motives (stage two in the Kuebler-Ross model of online discourse) and asking who I am really working for (answer: Koch Brothers, obviously) he asked:

“[A]re you just interested in stampeding the herd with you at the front?”

In the unlikely event that I ever attempt to stampede a herd, I assure you that the front will be the very last place to find me. But I appreciate the image, and shall cherish the quote forever. You can read the whole, jolly FB exchange here.

Yesterday evening I joined the discussion off-line, a term not synonymous with “real world.” The Select Board was discussing the Planning Board’s proposal to replace the current inclusionary-zoning bylaw, Article 15, with a new version. Readers will recall that the purpose of Article 15, which Amherst adopted in 2005, is to increase the number of affordable units. Although fundamentally flawed, the current version at least has the advantage of being simple and, at about 400 words, relatively short. Moreover, it is constitutionally sound, applying only to projects that would require a Special Permit, as opposed to by-right projects.

How well has it worked so far, asked the chair?

At that point I heard the snarky little voice inside my head mutter, “We haven’t gotten any affordable units out of it. It’s been a deterrent.” Only it was not the snarky little voice inside my head. It was Rob Crowner speaking on behalf of the Planning Board, the proponent of the new Article 15.

“We haven’t gotten any affordable units out of it,” he said.  “It’s been a deterrent.”

Inclusionary zoning, whose sole raison d’être is the production of affordable homes in Amherst, has produced absolutely none. Not one. In ten years.

Repeal the bylaw before it does any more damage, send it the way of the Corn Laws; that would be my advice. Unlike my advice, however, the Planning Board’s observes the immutable law of zoning physics, which decrees that bylaws can only ever expand, never contract, let alone disappear.

Therefore, because the short, straightforward bylaw has proved an execrable failure, we must replace it with a bylaw that is not only long and complicated but also extends its reach to by-right developments, i.e. home-building projects that would not require a Special Permit.

Inclusionary zoning has produced no affordable housing, said Mr. Crowner. Rather, it has been a deterrent (as in, something that deters). It has discouraged, not encouraged, affordable housing. If the herd was ever going to stampede away from inclusionary zoning, you would think this announcement would have provided sufficient spooking. But the floors did not vibrate with thundering hooves, and nobody got trampled. That said, there was an odor in the air redolent of the ranch.

Switching metaphors to matters nautical, picture this: His vessel holed below the Plimsoll line and sinking fast, the captain says to his crew, “Lads, we are taking on water. We need to let it out. Larry, you go below-decks and make holes, big ones and lots of ’em.  Take the sledgehammer and a stick or two of dynamite. Curly, you swim ashore and fetch a rock. Something about the size of an Easter Island statute should do.”

That is what the new Article 15 represents. More — much more — of the same.

The current Article 15 consists of about 400 words; the new version weighs in at around 2,000. The current version applies only to Special Permit developments; the new version covers by-right as well. Because of its potential to infringe on property-owners’ Fifth Amendment rights it contains a “nexus statement,” which claims the policy is necessary because affordable housing in Amherst is diminishing, even though it is not. In 2005 the stock of affordable housing stood at just over 10% and ten years later it still stands at just over 10%, which is not a diminution no matter what dictionary you use.

The Planning Board report described this dodgy nexus statement as “legally necessary.” I had emailed my doubts to the Select Board the day before the meeting, and the Town Manager had called counsel for clarity. Yesterday evening the Town Manager stated that the latest legal opinion describes the nexus statement as something that “would be helpful.” The thing went from absolutely necessary to just potentially helpful in next to no time. In a couple of days it will be, “Meh, probably couldn’t hurt.”

So the new Article 15 – all 2,400 words of it, legally indeterminate nexus statement and all – is what the Select Board voted in favor of, unanimously. Onward to Town Meeting, where I am sure it will engender much reasoned, thoughtful debate.

On the subject of reasoned, thoughtful debate, my coming out in opposition to inclusionary zoning led to a robust Facebook exchange that culminated in the quote about my stampeding the herd from the front. It thereby produced something of value, which is more than you can say for inclusionary zoning.


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