Jeffrey R. Lacy, AICP, is a Regional Planner with the Massachusetts Department of Conservation and Recreation’s Division of Water Supply Protection.  More importantly for present purposes, Jeff is also a co-drafter of House Bill No. 1859 (pdf), “An Act Promoting the Planning and Development of Sustainable Communities,” which is presently before the Joint Committee on Municipalities and Regional Government.  As I noted in my posts of earlier this summer (one of which Jeff rightly described as “ominous“), H.1859 is a far-reaching bill which, if enacted in anything resembling its current form, will fundamentally transform the practice of land use law in the Commonwealth.

In response to my entreaty for a spirited dialogue on this important bill, Jeff has provided two documents to kick things off.  The first one is a section-by-section summary of what, exactly, the bill will do, with cross-references to existing laws (including many sections of Chapter 40A and Chapter 41) that will be changed.  That document is available here (pdf).  The second one is a narrative description of some the key provisions of the bill, including the thinking behind them.  That document is reproduced in its entirety immediately below.  I’ll be offering my thoughts on some of these provisions in the coming weeks, and I encourage our readers to do the same.  Thanks again Jeff!


By Jeffrey R. Lacy, AICP


Amendments to Existing Statutes 

Adoption of Zoning: There is widespread dissatisfaction with the local application of Massachusetts land use laws; yet, any change in local zoning requires a two-thirds super-majority vote, thereby entrenching the status quo.  House 1859 improves the ability to respond to changing conditions by allowing communities the option to reduce the vote majority from two-thirds down anywhere to a simple majority (the national norm).

Special Permits: A conditional use permit elsewhere in the U.S. is called a “special” permit in Massachusetts.  And they really are special here, requiring a super-majority vote to be approved and lasting no longer than two years.  It is not surprising developers dread them.  House 1859 reduces the default vote majority to approve from 3/3, 4/5, or 5/7, depending on size of board, down to a simple majority regardless of size of board.  It also extends the duration of a special permit to a minimum of three years instead of the current maximum of two years, and establishes a clear lapse and extension process.

• Building Permits: House 1859 extends the maximum zoning life of a building permit from 6 months to two years before construction must begin.  This better reflects today’s construction schedules, affording builders more breathing room so that details, such as financing, may be attended to prior to actual construction.

• Vested Rights: Securing the rights to proceed with development under a building or special permit is now extremely difficult, but almost effortless with a preliminary subdivision plan.  The paradox is that building and special permits are end-stage permits requiring significant investment by the applicant; whereas a preliminary subdivision plan is exactly that – preliminary.  House 1859 standardizes the vesting provisions for building and special permits, as well as definitive subdivision plans.  In so doing it becomes much easier to vest rights for building and special permits applied for prior to the first notice of a public hearing on a zoning change, a significant liberalization for those applicants.

Approval Not Required (ANR) lot divisions along existing roads (discussed below), if regulated as minor subdivisions, actually enjoy a greater degree of vested rights protections, and over a longer duration, than they otherwise do today.

• Site Plan Review: Site plan review (SPR) is widely used across the Commonwealth despite no mention in statute.  Because there is no guidance some local SPR processes have begun to more resemble discretionary special permits.  House 1859 introduces statewide standards for site plan review, including: a 95-day time frame (shorter than many local provisions today); minimum 2-year duration after approval (longer than many local provisions today); limits on ability to condition (must relate to defined standards/criteria listed in the by-law); limits on imposition on off-site mitigation; and an appeal process based upon the existing record (certiorari).

• Serial Permits: House 1859 fosters more expeditious permitting by requiring consolidation of SPR within the timelines of the special permit process when both are required, and administration by a single local board (separate, non-concurrent, time-consuming reviews by different boards are commonplace today).

• Zoning Variances: The state’s current eligibility criteria is so strict that many cities and towns grant almost no zoning variances; but others ignore the statute and grant them willy-nilly subject to no standards.  There is no middle ground, and at both extremes it’s a broken statute. House 1859 rewrites the current variance statute in its entirety, expanding landowner eligibility to apply for a lawful variance; setting reasonable procedures and criteria; extending the effective duration of a variance from one to two years before lapse if not used; and increasing the permissible extension interval from 6 months to one year.  A workable zoning variance statute provides the intended flexibility to municipalities and property owners.

Development Impact Fees: Development in Massachusetts must produce no impacts because it is one of the few states where assessing an impact fee of a developer is not common practice.  It is no wonder cities and towns push back against many projects when they can’t recoup some of the costs.  The impact fee section adds predictability for big projects; instead of long negotiations over what exactions or mitigation are required in exchange for permit approval, impact fees are quickly calculated up front by formula (prompt).   Applicable fees are known in advance and can be built into a project’s pro forma (predictable).  Moreover, they will reduce local government opposition to development projects.

• Land Use Dispute Avoidance: House 1859 introduces a voluntary, “off-line” avenue for applicants and municipalities to work out difficulties in a prospective development project so that the later formal approval process may be successful.

• Subdivision Roadways: The bill establishes a presumption that road width requirements in subdivision regulations exceeding those commonly applied to local public roadway reconstructions are excessive. This will reduce both the road-building costs to developers and the runoff generated by impervious surfaces.

• Minor Subdivision: Reform of the so-called “ANR” provision in the Subdivision Control Law is needed because easy approval of roadside lots makes even the worst, unpaved roads in the most remotes places just as attractive to develop as those in a town center, a prescription for sprawl. House 1859 adds a local option to replace ANR with a “minor subdivision” process. However, minor subdivision applies to more than just former ANR lots; it applies to smaller residential subdivisions that today are regulated as full subdivisions. Under minor subdivision there is a shorter review period – 95 days instead of 135; a public hearing becomes optional; reductions of requirements otherwise applicable to subdivisions are allowed; and limits of no greater than 22 feet are placed upon total travelled lane width requirements (again, reducing both the road-building costs to developers and the runoff generated by impervious surfaces).

• Lot Line Changes: The bill streamlines the process to alter lot lines under certain circumstances by allowing these plans to go directly to the registry of deeds after a sign-off from the local zoning enforcement official (rather than action by a planning board that meets infrequently and at night).

• Appeals: House 1859 streamlines the appeals language for site plan review and subdivisions; providing for a record-based decision (certiorari) rather than a decision based on new evidence by the court evaluating a local approving authority’s action; and clarifies the jurisdiction of the Land Court permit session to include residential, commercial, industrial, and mixed-use projects.

New Statutory Sections

• Consolidated Permitting: By the time some development projects have been through the serial string of separate local permits from different boards the design may have changed to such a degree that the hapless applicant must resubmit a new application to the original board. A new Chapter, 40X, allows the proponent of an eligible project (projects consisting of 25,000 or more gross floor area or of 25 or more dwelling units) to file a concurrent application, which starts a process that includes a consolidated hearing for all boards involved within 45 days of filing, after which the boards may continue their regular process of peer and board reviews per applicable statutes and local regulations. It calls for a concurrent application that contains general project information relevant to all boards and requires that all boards must share draft project decisions before finalizing them. This applicant option will bring all relevant boards together for the start of the public hearing process, and should improve inter-board communication and coordination as well as shorten overall project review time.

• Planning Ahead for Growth Act: A new chapter, 40Y, provides strong incentives for the “plan, zone, invest” framework and provides more opportunities for housing and job growth in appropriate locations, coupled with environmental and open space protections. In exchange for local adoption of prompt and predictable permitting for commercial development and higher-density residential development in certain zoning districts, preserving open space in subdivisions, and protecting water quality in development projects, municipalities will be granted access to additional regulatory tools and fiscal resources to realize their plans for sustainable development.

Possible Further Amendments

There is a pent-up need to correct and modernize any number of longstanding deficiencies in statutes that date from the early 1950s to the mid 1970s. Even with so many permitting reforms already in House 1859, there is certainly room for additional statutory improvements, especially while the bill is in committee. The proponents of House 1859 have received extensive input on this bill, including some very sound suggestions for amendments including the one described in the following paragraph.

The state-of-the-art in smart growth planning encourages the mixing of a variety of residential, commercial, and civic uses to create walkable neighborhoods where people can live, work, shop, and engage in civic activities without excessive dependence on the automobile. Yet, Massachusetts’ law requires a difficult special permit for any multi-family housing in non-residential areas. A step in the right direction would be to completely eliminate the third paragraph of Section 9 of the Zoning Act, which now requires that any multi-family housing proposed for non-residential districts only be allowed through the special permit process. When that provision was written separation of uses was still an entrenched belief in land planning and the notion of housing integrated with other uses was suspect. Now “mixed use” is correctly recognized as a desirable feature of compact, walkable neighborhoods and town centers, and a tenet of smarter growth.