Of Variances and Standing

Two interesting cases on the same property, the first one dealt with an innovative way of measuring lot depth (we do not directly dictate lot depth in Dennis), the second one deals with standing to appeal.

The first case, basically, found that we should not be too creative in how we interpret zoning code. It there is a simple, generally understood principle, it should be followed. Thus lot depth would be measured by a direct line from front to back, not a diagonal line looking at far corners.

The second case deals with standing. Far more interesting from the point of view of Dennis Boards. I address this below.

The case is just a Land Court ruling and is yet precedent setting. But, it provides guidance on the thinking of the courts.

Lawn cutting, oil deliveries, trash collection and mail deliveries were all considered as normal and outside of the special impacts that confer standing. Vehicle headlights were dealt with differently. Headlights shining into the house was felt to be a special impact that provides harm and therefore standing.

In the case above, the judge found that, without the house granted the variance, the appellant would not have the impact of the headlights. Therefore, the appellant was found to be harmed and had standing to challenge the variance.

Sesuit Harbor Zoning Planning Board Mark Up – First Cut

At the last Planning Board Meeting, the Board completed its first pass through the proposed Sesuit Harbor Zoning Proposal.  Those revisions can be found on the tab above entitled Sesuit Harbor Items and clicking Sesuit Harbor Zoning Draft 1-6-2015 Planning Board Revisions.  The Planning Board will continue its review of this proposal on January 12, 2015 after it takes care of a couple of quick applications.

Affordable Housing Looking Back At 2014 And Forward To 2015

Housing affordability is the No. 1 problem facing Dennis.  The lack of affordable housing creates a situation where young people cannot afford to live in town. This means young people educated in Dennis cannot bring their knowledge or skills to town.  It threatens everything that makes the Dennis a great place to live. Expensive housing prices make it impossible for more than a wealthy class to live here year round or for a second home market to thrive.

Dennis has done more work on this issue than most are aware of probably over the past several years. Our approach proceeds from two primary ideas:

1. Try many different solutions.

Solutions are hard to come by, we need to recognize the driving forces that push housing prices up, and tackle these head on.  Dennis needs to add to the overall housing supply,  fix regulations and invest in subsidized housing. The scale of the problem calls for us to make use of all of these strategies at one time.

2. All our villages are in this together.

Affordable housing is not just a one village issue. East Dennis may have the highest concentration (measured in percent of all housing units) and South Dennis the largest number of affordable housing, no where is the supply even near the demand. In every village over 40% of the year round population spends more than a third of their income on housing. Over 10% of the population is below the federal poverty rate.  In short, Dennis has a tremendous amount of need for affordable housing.

The housing supply situation is even more dismal.  During the first decade of this century we shifted to a predominately second home community,  with nearly 52% of our housing count being listed as seasonal by the Census. Locally employed home buyers are outbid for modestly priced homes that get torn down and replaced with luxurious second homes or by investors who know they can earn more on weekly rentals than the average family can afford for a mortgage.

What follows is a snapshot of what Dennis has achieved in housing, where we’ve been set back, and what is before us in the upcoming year:


Affordable Housing Trust Fund

The Dennis Affordable Housing Trust Fund  establishes a focal point funding for affordable housing.  Dennis made a major step forward with the creation of the Housing Trust Fund. Housing is expensive to create — the average unit in Dennis costs over $200,000 to build, excluding land costs.  Housing that is subsidized to be affordable isn’t any less expensive to build.  Given land costs, it takes close to $300,000 dollars to make a single unit affordable in Dennis.  Many sources of funding have never been available to Dennis for creating affordable housing, while other sources of funds have disappeared as the federal and state governments have dramatically cut their assistance over the past decade. The Dennis Affordable Housing Trust Fund, when coupled with Community Preservation Funds will provide a dedicated source of local funding.

Public/Private Partnerships in Housing Creation.

Housing under the control of the Dennis Housing Authority plays a critical role in meeting housing affordability needs. The Authority is the single largest owner of housing, deed rstricted or otherwise, in Dennis. Due to declining state and federal funding programs, the Authority has not been positioed to add to its housing stock. In its place the Town has stepped up to work with Habitat for Humanity, the Housing Assistance Corporation and other private entities to fill this void.

Habitat for Humanity has constructed two affordable ownership units on land provided by the Town. The Housing Assistance Corporation has broken ground on 27 units of rental housing on Route 134.  Private projects include ground breaking on 8 ownership housing units, two deed restricted affordable, in Dennis Port and completion of the rental conversion on Route 134 now providing 18 rental units, with 5 of these units deed restricted affordable.

Addressing the Seasonal Housing Market.

The housing crisis has many facets.  Two market forces artificially drive up housing prices, second homes and weekly rentals. Sites like ineedavacation.com and airbnb have made it easier for homeowners to find weekly vacation renters. The increase in units rented weekly, reduces available year round rentals for local employees and drives up the rental costs for the limited remaining rental properties.

The Town has attempted to address these issues. Heritage Sands is the first purpose built seasonal home project in Dennis in years. The 60+ units of housing, plus a smaller 5 unit cottage conversion on the north side, provide options for second home buyers and relieves pressure on the year round housing market.

Looking Ahead to 2015.

A Renewed Focus On Housing

The coming year will see a renewed focus on housing, and housing affordability. The Town has many irons in the fire; reuse of town owned land; zoning initiatives; pursuing projects under current zoning; and Community Preservation funding for housing all  are on the radar screen.

MelPet Housing

After years of delay, the Community at MelPet is finally coming to fruition. Ground was broken this year with hopes to have residents in place before the 2015 holiday season.

Elkannah Howland Road and Janall Drive

Two projects approved by the Planning Board in recent years provide opportunity for additions to our affordable housing stock. Elkannah Howland Road is approved for the creation of 18 housing units, 9 deed restricted affordable to 80% of median income and the remainder restricted to 120% of median. This project has been held up in court for years. On Janall Drive eight housing units, two deed restricted affordable have been approved for construction.

Dennis Port Townhouses

Ground has broken on another eight unit project in Dennis Port. Two of these units will be deed restricted affordable. One of the affordable units will be fully accessible.

Candlewood Lane Housing

Years ago we started discussing  a Chapter 40R housing project on Candlewood Lane. The concept is to rezone all the land adjacent to Candlewood Lane to allow for a higher density compact neighborhood. The concept would be similar to what is being built at Heritge Sands, but for year round housing. The proposal would call for a mix ofone and one and a half story residences with footprints between 700 and 900 sf. Conceptually, the site could accommodate 51 units of housing.

Route 28 Rezoning

We are exploring the possibility of rezoning Route 28 from the Dennis Port Village Center Zoning District to around the Cape Shoe Mart area. This effort would seek to encourage making this stretch of Route 28 into a walkable residentially oriented, yet still mixed use, area connected to the Dennis Port Village Center. The working concept would include top of the shop housing, townhouse development and clustered single family dwellings interspersed with rehabilitated and redeveloped commercial space.

Exit 9 Economic Center

Another big initiative calls for a new approach to the future of the land area south of Exit 9. The Economic Development Committee is exploring creating a Planned Unit Development approach for this area. The concept presently under consideration calls for a floor area ratio approaching 2.0. There would be three general land use categories, with development projects being required to draw floor space uses from each of the categories. At least 1/3rd of the floor space would be required to be residential,  with a 25% affordability requirement.

Hokum Rock Road Community

Town Meeting approved land on Hokum Rock Road for the creation of a community for adults with Autism Spectrum Disorders. The community will provide affordable living arrangements for a population that is at great risk of becoming homeless.

Beyond 2015

Looking to the future, there is still much to do.

Reform the planning process to welcome projects that fit within the zoning.

Dennis needs to consider moving certain zoning districts to “by-right” development with more reliance on properly defined Site Plan Review control as opposed to Special Permit control. Dennis Port and West Dennis Village Centers could benefit economically from a more certain development approval process. Changes in these two areas would also make the villages eligible for Chapter 40R consideration.

Innovative “Small” Housing  Within The Affordable Housing Bylaw

As we have delved into the Candlewood Lane housing concept, its application on other sites has also been considered. The verbiage is being crafted to allow it to be applied elsewhere. Several sites come to mind, both public and private ones. Public sites include the former DPW site on Bob Crowell Road and parcels the town has foreclosed on around town. Private sites could include two properties that might make ideal mixed use sites.  These properties could also combine use of Community Preservation Act Historic Preservation and Affordable Housing funding. These sites, in village centers, include the Columns site in West Dennis and the former Karl’s Landmark site in Dennis Port.

Affordable Housing Land Acquisitions

Since the initial creation of the Land Bank, Dennis has used Land Bank and Community Preservation Act funds to acquire land for conservation purposes.  The Community Preservation Act funds could also be considered for targeted acquisitions of sites that are found to be optimal locations for creation of affordable housing. Willing seller sites currently exist, sites that are on market.

More Seasonal Housing Target Areas

The Heritage Sands community of seasonal homes has succeeded in reducing some of the demand for seasonal housing in surrounding neighborhoods in Dennis. Similar projects have the potential for reducing some competition for existing home resales, leaving more existing homes for the year round population in Dennis.  We need to further analyze the dynamics behind the sales at Heritage Sands and find areas where such housing can be created. Modfications to, and expansion of, the Seasonal Resort Zoning District might be in order. Additional cottage colonies should be considered for inclusion in this district. In addition, the present by-law does not allow for increased density, perhaps, increased density could be allowed provided the building separation standards placed in the by-law are adhered to. The more purpose built, seasonal, housing we can create, the lower the home price pressures will be on the existing year round housing stock.

Tackling Weekly Rentals

This is a two step issue. First is the question of whether we should pursue measures to reduce the spread of weekly rentals, the second is the question of pursuing rooms taxes on weekly rentals like several of our neighbors are doing but with an affordable housing twist.

The advent of websites such as ineedavacation.com and airbnb have increased the marketability of weekly rentals. They have also placed the ability to rent a house for a few days or a week easily into most people’s hands.  These sites have also increased the reach of investors into otherwise residential neighborhoods, turning homes into business properties.  Some have recognized this transition, and have started to regulate weekly rentals as commercial land uses, rather than residential ones.  This may need to be considered for portions of Dennis. Restricting weekly rentals in portions of town will protect a portion of the housing stock from potentially being investor owned. In Hawaii zoning districts are established that allow weekly rentals, and others that prohibit such districts. In San Francisco, they have defined residential properties as ones that are owner/leaseholder occupied for at least 275 days per year. Closer to home, the Town of Hull has determined that homes rented on a weekly basis constitute businesses in residential zoning districts and has determined that such uses are banned under their existing zoning. Looking at rental permit history, it should be possible to develop districts that allow weekly rentals, while prohibiting such businesses in some other areas.

The second issue is the rooms tax.  Weekly rentals of homes do not pay the hotel rooms tax like hotels are required to do.  Our neighbors have been pursuing expanding the rooms tax to these rentals on a fairness argument, basically stating that these rentals generate the same impacts on their communities as hotels. As I have laid out above, weekly rentals turn residential properties into commercial investment properties. The return on a weekly rental in July far exceeds what a local employee might be able to pay even for one month’s mortgage payment. These commercial investment properties drive up the selling price for homes and decreases the housing supply available to low or moderate income households working in the local economy. The local option rooms tax on weekly rentals could be earmarked to directly serve the portion of the local economy most directly impacted by these price increases.  The tax on these weekly rentals could be dedicated to the Affordable Housing Trust for programs to increase the supply of affordable housing.

Dennis stands committed to meeting our affordable housing challenge. We look forward to continued community support for affordable housing.

Northampton eyes ‘light pollution’ measure; police chief Sienkiewicz cites safety concerns | masslive.com

We require full cut-off lighting in our decisions, perhaps we should consider codifying this requirement into the zoning by-law/

Northampton eyes ‘light pollution’ measure; police chief Sienkiewicz cites safety concerns | masslive.com.

“Keep Dunkin Off Route 6A” – Part 3

Now I will address the specifics of what is before the Planning Board.

The site has a bit of a history to it. After Mobil closed down, and no one was able to reopen the service bays on the property, the site was acquired by Christy’s of Cape Cod. At the time Christy’s came forward to convert the service station to a convenience store it still controlled enough sites to be considered a formula based business.  The Christy proposal was reviewed under these standards. During the review of this proposal, Christy’s divested of most of its holdings. However, as convenience stores fall under Section of the Dennis Zoning By-law, the convenience store still needed a Special Permit to operate at this site. As part of reviewing this Special Permit, the Planning Board approved not only the site plan with parking, lighting, pedestrian facilities and a host of other issues, the Planning Board also approved a sign that was part of the application.

As time went on, Christy’s sold the property to the current owners, who inherited the restrictions that were placed in the original Special Permit. The sign was allowed to be modified to replace “Christy’s of Cape Cod” with “Cape Cod Farms.”  All other restrictions relative to the sign face was kept in place.

NOW, the Planning Board is faced with a request specific to the sign. The Planning Board is NOT being asked to approve Dunkin going into the store. The proposed sign modification is illustrated below:

Dunkin 1

Obvious thoughts are ones that many have raised, the sign does not announce that it features the current coffee served or any other product sold; the colors are too harsh for the sign; the lettering too large; etc. These are all issues that both the Dennis Planning Board and Old King’s Highway will have to wrestle with.

As a sign has been approved for the property with specific conditions, the Board is not compelled to approve the modification. However, they must give it a fair hearing, discuss alternatives, and act within the limits of zoning.

As I have mentioned, the substitution of Dunkin branded coffee and other items is not before the Board.

“Keep Dunkin Off Route 6A” – Part 2

Before getting to the specifics of the application before the Planning Board, I would like to address the idea of why we keep on having to address this issue.

I recognize that, for the neighbors, this seems to keep coming back again and again. And, it is.

The Planning Board has not had the opportunity to actually reject a request to locate Dunkin in Cape Cod Farms. Every time it has come forward, the applicant has withdrawn the request before the Board has taken a vote. As of yet, we do not really know how the Board would vote.

The process of withdrawing an application, allows an applicant to return, on their own schedule to once again ask for permission to conduct a business at a location.

Had the Planning Board rejected an application, the Zoning Act still allows the applicant to refile. In general a denial places a two year moratorium on making the same request to a board. EXCEPT, that the Zoning Act creates a repetitive petition process that allows an applicant to request a review in less than two years, if they can illustrate substantive changes to the original application.

As there has never been a vote on Dunkin at Cape Cod Farms, we do not have a repetitive petition.


Boston Globe: The Nantucket housing shuffle

I found this article through the Oaks Bluff Planning Board page. They were using it to make a comparison between the cost of housing in their town to that on Nantucket, i.e. determining how to properly regulate while not creating a situation where islanders get forced out as the area becomes too expensive for year-round workers.

Like it or not, Cape Cod and Dennis, have the same problems. In the last census over 50% of the homes in Dennis were occupied as seasonal housing, second homes. Second homes create a unique strain on a community, driving up housing costs by bringing in disposable cash from areas outside the Cape economy.

As we continue to plan for the future of Dennis, we need to recognize that we need to plan for the second home market as much as for our local, year-round worker needs.If we do not, then we will make it harder and harder for the year-round economy to grow. Essentially, while we continue to sell summer as our primary export industry, we need to do this in a manner that does not over stress the local housing market. This means that we need to continue to consider how we accommodate the demands for seasonal living, in targeted seasonal communities, in order to relieve excess pressure on available year-round housing.

The Nantucket housing shuffle

Conditions are forever…..

I saw this article and thought I should pass it on.

Some Old Land Use Restrictions Don’t Die, Or Even Fade Away

Of course with a few comments.

The Samuelson v. Planning Bd. of Orleans case clearly establishes that a Planning Board’s conditions do not disappear over time, like private agreements. However, the case also establishes that the concept that “conditions are forever” may have its limits.

Often the Dennis Boards have discussed conditions and whether they could create conditions that tied the hands of future Boards. These discussions have always wound up at one place, that a current Board can establish conditions, but property owners can always petition the Board or a future Board to modify or remove those conditions.

The Samuelson decision clearly reinforces this particular provision, noting that the Kennedy’s could have petitioned the Planning Board to modify the original subdivision under Chapter 41 Section 81W. This specific request was not made, rather the applicant hung its hat on a concept that applies to private agreements that restrictive covenants lapsed after 30 years.

There is a side issue that this case leaves open, but references two cases to be followed, regarding the appropriate party or parties to petition for a modification.

The lesson is, conditions are forever, unless the Board that granted the permit and established the conditions, is 1) properly asked and 2) agrees to modify the conditions.

FEMA/NFIP Flood Maps

On July 16th the new FEMA National Flood Insurance Program Flood Insurance Rate Maps went into effect. A few things people should be aware of:

  • Applications to the Planning or Zoning Boards should include actual, not assumed elevation data. This will provide the opportunity to properly assess the flood zone implications of the proposal.
  • Applications to the Building Department should also include an elevation certificate and an appropriate survey plan illustrating ground elevation.
  • All vertical datum should be in NAVD 88.
  • If your project is located in the flood zone, the application should include an engineers determination of flood zone compliance.
  • Projects with a value of 50% or more of the value of the existing structure will require bringing the structure up to flood zone compliant status.
  • The Board of Appeals, under the “substantially more detrimental” determination reserves the right to require structures to be elevated even if the value is below this level.

We understand that continuing flood insurance coverage will require providing your insurance company with an elevation certificate.  The Planning and Building Departments would like to encourage all residents to file copies of these certificates with our offices as well. This will improve our record keeping and ability to assist you in the future.