To Reform or Not to Reform - Zoning That Is

I have been following an issue in the State of New Hampshire. It involves a car dealership, a wall that was constructed and whether that wall constitutes a sign. You can read about it at the following locations:

Portsmouth car dealership's lights at center of zoning flap

Neighbors angry over 'monster' Toyota sign

Sign dispute: Toyota fights appeal

Judge denies abutters' appeal in Route 1 dealership light dispute

Judge: Toyota neighbors' appeal too late

It seems that the car dealership constructed a new "wall" which meets most people's definition of a sign. It took several months for the construction to be undertaken and for the abutters to learn about the nature of the "wall" or "sign."

New Hampshire is often thought of as having fairly decent zoning standards. They adopted the standard zoning enabling act and has tinkered with it only occasionally. Many who have looked at reforming the Massachusetts Zoning Act (which needs significant improvements) have looked at states like New Hampshire for ideas.

This particular case, however, illustrates one of the pitfalls of taking a chainsaw where a scalpel is probably a better choice. In New Hampshire, neighbors have only 30 days from the date of the issuance of a building permit to seek enforcement of an alleged zoning violation. As the case illustrates, the abutters really did not learn of the violation for nearly 236 days, when the "wall" was illuminated. The judge in the case ruled that they were too late to seek enforcement and dismissed their challenge to the sign and the zoning violation.

As the attorney for the abutters argues, abutters have no way, unless they review every building permit issued by the building department, to know if there is a zoning violation being created in their neighborhood. In Massachusetts, our Zoning Act and subsequent court cases have recognized that 30 days is hardly appropriate. While a Building Permit on its face can only be challenged within 30 days, an abutter can seek enforcement of a zoning violation for up to seven additional years. As the New Hampshire example illustrates, this time period for seeking zoning enforcement is clearly important.

For several years a number of my colleagues have been working diligently to modify the zoning act. Their efforts should be applauded. However, perhaps we should be focusing on scalpel type improvements. Find a small part that needs to be fixed and push for legislation to fix that part.

During the same time period that the Zoning Reform Working Group and others have to over haul zoning, others have successfully made changes to gut parts of the zoning act. I am not talking about Chapter 40B type issues either.

Back several years ago the Town of Concord successfully enforced zoning against a farm store which was selling predominantly products that were not grown on the farm. The judges in the case, ultimately all the way up to the highest appellate levels, supported the town. They determined that the farm store became a general retail operation when greater than half of its sales were from products not produced on the farm. Since the store was in a residential zoning district, the store had to change its operation to comply with zoning and the exemption allowed for agricultural uses. Subsequent to this court case, special interests pushed the legislature to redefine the accessory nature of a farm store. Now, Chapter 40A Section 3 exempts "farm stores" from zoning protection as long as 25% of the products sold come from the farm. Essentially introducing commercial retail enterprises, and the automobile and truck traffic associated with these sites, into residential neighborhoods.

This is just one example of legislators making significant changes to the Zoning Act with little town town officials, and even less input from residents who might be impacted by their actions.

With all the effort that has gone into Zoning Reform, we have no ability to ensure that all the good will go unchanged. Personally, I believe that we need to start by protecting what we have. Change may be desirable, but could you imagine having a zoning appeals process such as the one discussed in these Portsmouth NH stories?