Last week the Supreme Judicial Court (SJC) issued its much-anticipated decision in Palitz v. Zoning Board of Appeals of Tisbury. The fact that the high court took this appeal directly from the Land Court (bypassing the Appeals Court) caused some to wonder whether a dramatic change in the law on the relationship between zoning
In a previous post we discussed Gale v. Zoning Board of Appeals of Gloucester (pdf) and the “difficult and infelicitous” language of the first two sentences of M.G.L. c. 40A, § 6 governing nonconforming uses and structures. In Gale, the Appeals Court upheld the grant of a special permit authorizing the reconstruction of a single-family house…
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.
To be effective, a variance granted under M.G. L. c. 40A, § 10 must be recorded and exercised within one year of issuance. In its 2009 decision in Cornell v. Board of Appeals of Dracut, the Supreme Judicial Court (SJC) left open the question of whether substantial reliance could validate an otherwise lapsed variance. In its decision earlier this month in …
A summary of what this bill would do is here. A few things jump right out: (1) the bill’s title, “An Act Promoting the Planning and Development of Sustainable Communities,” gives me the willies; (2) sayonara, ANR plans; (3) allows town meeting to change zoning bylaws by a simple majority, promoting instability in the law; (4) authorizes impact fees so municipalities…
Since its inception, the first paragraph of M.G.L. c. 40A, sec. 6 (Section 6) has confused lawyers, landowners and judges alike. One question that has arisen is whether a variance is needed in order to alter a pre-existing nonconforming structure, where the alteration creates new nonconformities or exacerbates existing ones. In Gale v. Zoning Board of…