In our continuing look at the Legislature’s proposed land use reform bill, “An Act Promoting the Planning and Development of Sustainable Communities” (the Act), we turn to the subject of zoning freezes and Approval Not Required (ANR) plans. The Act proposes significant changes to existing law governing the zoning freezes triggered by building permits, special permits, and subdivisions. These changes are in Sections 6-12 of the Act (pdf). The Act also proposes to eliminate ANR plans and replace them with a “Minor Subdivision” approval process. These changes are in Sections 29-32 of the Act (pdf).
Building Permits and Special Permits
Current Law Zoning amendments don’t apply to building permits or special permits issued prior to the first publication of notice of a public hearing on a proposed zoning amendment. In order to retain this freeze, construction must commence within six months following the issuance of a permit, and must continue as expeditiously as is reasonable.
The Act Under the Act, if a complete application for a building permit or special permit is filed and notice is given to the town clerk prior to the first publication of notice of the public hearing on a zoning amendment, the permit will be governed by the zoning in effect at the time the application was filed. The freeze dates from the granting of the permit, and runs for two years in the case of a building permit and three years in the case of a special permit. The Act is silent as to what actions, if any, the permit holder must take during the freeze period to preserve its rights under the permit.
Current Law The filing of a definitive subdivision plan, or a preliminary plan followed within seven months by a definitive plan, freezes the zoning in effect on the date the first plan is filed, so long as that date is prior to the town meeting (or city) vote adopting the zoning amendment. Once triggered, this freeze lasts for eight years from the date of endorsement of the definitive plan. There is also currently a three-year use freeze for ANR plans filed under Section 81P of M.G.L. c. 41.
The Act The Act eliminates the use of preliminary subdivision plans as a means of obtaining a zoning freeze. It retains the eight-year definitive plan freeze, but requires that the plan be filed prior to the first publication of notice of the public hearing on the zoning amendment, rather than prior to the vote on the zoning amendment. The eight-year plan freeze, which currently freezes the zoning applicable to the “land” shown on the plan, is modified to protect only the project shown on the plan.
The Act puts an end to ANR plans as we know them. Under the Act, these (formerly) as-of-right plans, which allow the development of land that has the required amount of frontage on an existing public way and certain other suitable ways, are treated as “minor subdivisions” that must be reviewed and approved by the planning board under new regulations enacted by the city or town for this purpose. Until such regulations are enacted, the Act provides a set of baseline standards that will apply. Under current law, an ANR plan must be acted on within 21 days, while under the Act, a planning board can take up to 65 days to review a plan showing lots on an existing way. The Act also authorizes subdivision regulations that require the creation of parks comprising up to 5% of the total land area being subdivided.
The Bottom Line
While the Act offers a modest benefit to real estate owners and developers – the ability to obtain a zoning freeze upon the filing of an application for a building permit or special permit, rather than only upon the issuance of such permits – overall the Act takes more than it gives. The Act’s elimination of preliminary subdivision plan freezes, its requirement that definitive subdivision plans be filed prior to the first notice of the public hearing (rather than the vote) on a zoning change, and its limitation of freezes to the project (rather than the land) shown on the plan, will make subdivision freezes more difficult – and in many cases impossible – to obtain. Similarly, the Act’s outright elimination of ANR plans takes away one of the only remaining means of developing land without being forced to run a costly gaunlet of complex rules and regulations. Since the purpose of the Subdivision Control Law is to ensure suitable access to building lots (see M.G.L. c. 41, § 81M), and since the very premise of an ANR plan is the existence (already) of suitable access, the rationale for treating ANR plans as as “minor subdivisions” is not readily apparent.