Today we begin our detailed examination of the far-reaching land use reform bill pending before the Legislature.  The title of this bill is “An Act Promoting the Planning and Development of Sustainable Communities”; it’s also known as House Bill H.1859.  I’ll refer to it as the “Act.”  The Act is currently pending before the Joint Committee on Municipalities and Regional Government.  As indicated in our previous posts here, here and here, if adopted in anything resembling its current form the Act promises to transform Massachusetts zoning and land use law as we know it. 

We’ll start with a look at the proposed changes to special permits, which are contained in Sections 13-19 (pdf) of the Act.  These provisions would amend M.G.L. c. 40A, § 9.   

After changing the name of the section to “Special Provisions,” the Act strikes language in Section 9 that imposes limits on special permits for increased density, transfer of development rights, cluster devlopments, planned unit developments and shared elderly housing. 

The Act also makes a clarifying amendment to emphasize that zoning ordinances or by-laws that authorize multi-family residential uses in non-residential zones must require that the special permit granting authority (SPGA) make three findings in order to issue a special permit:  (i) that the public good would be served, (ii) that the non-residentially zoned area would not be adversely affected by such a residential use, and (iii) that permitted uses in such a zone are not noxious to a multi-family use.

Section 9 currently provides, “A special permit issued by a special permit granting authority shall require a two-thirds vote of boards with more than five members, a vote of at least four members of a five member board, and a unanimous vote of a three member board.”  The Act allows for the grant of a special permit by a simple majority vote unless the zoning ordinance or by-law specifies that a greater majority is necessary.

The Act would make a few significant changes with respect to when a special permit lapses.  Section 9 currently requires that zoning ordinances or by-laws provide that:

a special permit granted under this section shall lapse within a specified period of time, not more than two years, which shall not include such time required to pursue or await the determination of an appeal referred to in section seventeen, from the grant thereof, if a substantial use thereof has not sooner commenced except for good cause or, in the case of permit for construction, if construction has not begun by such date except for good cause.

The Act retains the “good cause” exceptions, but extends the time period to three years, and allows local zoning to provide for a longer minimum time.  It also adds a new paragraph that allows a special permit holder to file a written application to extend the time for exercise of its special permit for up to the original duration of the permit.  This application must be filed no later than 65 days before the lapse of the special permit.  The SPGA has the discretion to grant the extension by the same majority required for the original permit, and need not hold a public hearing.  If an extension is not granted within 65 days of the application date, then a new notice and hearing is required.

The remaining amendments to Section 9 make clear that, in areas zoned as mixed-use with an industrial component, the industrial use must be the prinicipal use zoned in order for hazardous waste or solid waste facilities to be permitted by right.

Real estate developers will appreciate the possibility of a simple majority vote for approval of special permits, though it remains to be seen how many cities and towns will accept this lower threshold for approval and how many will opt to maintain a super-majority requirement as a matter of local discretion.  Developers also will welcome the additional breathing room offered by the three-year lapse provision.