The state has distributed a proposed legislative initiative to revamp planning. While its goals are laudable, there seems to be a number of pitfalls. Planners and residents of Massachusetts need to carefully consider this legislative initiative, and make sure that their legislators know what they think of this proposal. In the next series of posts I will look at particular portions of this proposal, and point out my concerns with the changes.
I am going to split out the discussion into various parts to give each level of the proposal adequate attention. I am further splitting my thoughts to focus on the changes that affect all of us, essentially changes that affect towns that do not seek to create a certified plan. I will follow this later with comments on the portion of the proposal that will affect only those seeking to have a certified plan. Some aspects of the proposal will be repeated in the different discussions, as they affect a number of actions.
This first post will discuss the concept of vesting as it affects everyone immediately, and will continue to affect those without certified plans.
Currently, projects gain vesting rights in three fashions, these are:
* Filing an Approval Not Required Plan, which protects use for a period of three years;
* Granting of a Special Permit, which protects a project that has already been permitted as long as the permit remain valid.
The proposal will change all of this, Chapter 40A Section 6 will be changed. To fully understand the level of the changes, you actually have to start with changes to be made later in the proposal, fifth paragraph taken before the second paragraph.
The proposed changes to the fifth paragraph establish:
Replace the fifth paragraph of Section 6 of Chapter 40A with the following:
Subject to the transition rules set forth below, within a municipality that is not a certified plan community, if a declaration of development intent is submitted to a planning board, and written notice of such submission has been given to the city or town clerk, the development described in such declaration shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of such declaration, for a vesting period that ends eight years from the date of such written notice of submission; provided that: (i) the development described in such declaration shall be subject to subsequent amendment of the zoning ordinance or by-law, if the first notice thereof was posted prior to such written notice of submission, and (ii) the development described in such declaration shall be subject to subsequent amendment of the zoning ordinance or by-law, unless a definitive plan, or a preliminary plan followed within seven months by a definitive plan, is submitted to a planning board for approval under the subdivision control law prior to such amendment, and, if such definitive plan or an amendment thereof is thereafter finally approved. The length of such vesting period shall be extended by a period equal to the time which a city or town imposes or has imposed upon it by a state, a federal agency or a court, a moratorium on construction, the issuance of permits or utility connections. The provisions of this paragraph shall not apply to development substantially different in use or substantially greater in extent from the development described in the declaration of development intent.
The first significant change is the submittal “declaration of development intent.” As written, the “declaration of development intent” institutes the initiation of a zoning freeze for any project. The “Declaration of Development Intent” is defined as follows:
“Declaration of development intent” shall mean a written notice that describes the land on which proposed development will be located, states whether the proposed development is residential, commercial/industrial or institutional, and sets forth the total gross square footage of proposed buildings (or the number of proposed housing units, in the case of residential development).
This declaration would appear to be as simple as submitting a letter stating that a property owner intends to develop a piece of property in a particular fashion – say a 30,000 sf retail building on an acre lot. This initiates a zoning freeze on the parcel of land. This protection will extend for eight years. The major change in this, is that it provides a level of protection that is not available today for most non-residential projects. In particular for commercial uses a single lot ANR would protect commercial use, but does not protect it from other zoning changes such as setback, lot coverage, drainage, parking or landscaping requirements. Otherwise any level of vesting protection for a commercial property requires the issuance of a Special Permit. A definitive plan, provides an eight year protection for commercial and residential uses, so there is no change in the instance of vesting under definitive plans.
The section does mix up the concept of Special Permit and subdivision plans. The “declaration of development intent” provides for both commercial developments and subdivisions. The Section 6 changes above start with this level of protection, but quickly forgets that some declarations will be for existing lots which do not require subdivision, and focuses only on the subdivision process and protections for subdivision plans. However, this is minor in comparison to the other issues.
This particular change will also extend the vesting period by a few other permitting items. While some of these are currently provided for (appeals of decisions, moratorias) some are not (issuance of other permits such as wetlands or curb cuts). These can provide for fairly significant extensions, especially given their timing could be completely up to the applicant. For instance, the application for a curb cut permit for a project could be delayed if economic conditions change make immediate pursuit of a project uneconomic. The provisions of this section does not have any stated time limits. Given the importance of time limits in this document, one would clearly have to be concerned that the court would find that the lack of a time limit in this section would be considered deliberate, and the court could quite likely not impose such a limit.
Now, we move back to the paragraph 2 changes:
The second paragraph of Section 6 of Chapter 40A is hereby amended to provide as follows:
A zoning ordinance or by-law shall provide that construction or operations under a building permit shall conform to any subsequent amendment of the ordinance or by-law unless the use or construction is commenced within a period of not more than six months after the issuance of the permit and in cases involving construction, unless such construction is continued through to completion as continuously and expeditiously as is reasonable. Construction or operations under a special permit or site plan approval shall conform to any subsequent amendment of the zoning ordinance or by-law or of any other local land use regulations unless the use or construction is commenced within a period of two years after the issuance of the permit and in cases involving construction, unless such construction is continued through to completion as continuously and expeditiously as is reasonable. For the purpose of the prior sentence, construction involving the redevelopment of previously disturbed land shall be deemed to have commenced upon substantial investment in site preparation and/or infrastructure construction, and construction of development intended to proceed in phases shall proceed expeditiously, but not continuously, among phases.
This section has contradictory sections as well. First is a provision that allows a project that is issued a building permit must comply with zoning changes if the construction contemplated under the Special Permit is not commenced within six months (this contradicts the vesting provisions for a “declaration of development intent” previously discussed). Special Permit provisions are drastically changed in this section. Currently under Chapter 40A Section 6 Special Permits are limited to a maximum of two years. Under this proposal, Special Permits must be issued for a minimum of two years.
Conclusions
Specific to this discussion, the changes contemplated will be particularly punitive for communities that do not seek a certified plan, or do not have the means of meeting such a certification. Vesting rights will be increased dramatically over existing standards. Proposals will be able to gain vesting rights for far more simplistic approaches than previous required. And permits will be required to be issued for longer time periods, not allowing a community to reconsider a particular project if it does not move forward in a timely fashion.
Unfortunately, there is another twist, which I will discuss in the next post on this issue, and that deals with to what zoning standards may a project be vested – the proposal changes the adoption process for zoning amendments from a two-thirds vote, to a majority vote at town meeting. In my own opinion this will allow for a particular interest to petition a zoning change in a non-certified plan community, stack town meeting, accomplish a zoning change, vest an otherwise undesirable use of a site, and totally circumvent any public rights in the land use decision-making process.
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