The proposed Land Use Partnership Act attempts to codify Site Plan Review. This is probably a good idea. At present, Site Plan Review is inferred as being consistent with the Zoning Act to ensure zoning compliance of a project. As such, in general, what is proposed in Number 7 of the proposed act is a good idea, in general. The following discussion will highlight the individual sections.
7) Site plan review
The following new Section 7A is inserted into chapter 40A:
40A:7A. Site Plan Review
(a) As used in this section, "site plan review" shall mean review and approval under a municipality’s zoning ordinance or by-law, by an authority other than the zoning administrator, of a proposed use of land or structures that does not require a special permit or a variance, whether to determine whether a proposed use of land or structures is in compliance with the ordinance or by-law, to evaluate the proposed use of land or structures, to consider site design alternatives or otherwise.
Subsection (a) simply creates the concept of “Site Plan Review” really nothing too earth-shattering in this section. It covers the general essence of what occurs during site plan review.
(b) In addition to the home rule authority of cities and towns to require site plan review, a municipality may adopt a local ordinance or by-law under this section requiring site plan review and approval by a designated authority before authorization is granted for the use of land or structures governed by a zoning ordinance or by-law. The approving authority may adopt, and from time to time amend, rules and regulations to implement the local site plan review ordinance or by-law, including provisions for the imposition of reasonable fees for the employment of outside consultants in the same manner as set forth in section 53G of chapter 44.
Okay, I have always been taught, and this has been confirmed at several meeting with the legal gurus from DHCD and the Attorney General’s Office, that any time you legislate a power that is assumed to be allowed under the home rule authority, you are there-by limiting or eliminating, home rule authority. The idea that any portion of what is stated in proposed Section 7A is in addition to the home rule authority is deceiving. In fact, this entire section seeks to define and place limits on Site Plan Review. This clearly does not enhance home rule powers. The limits, as discussed below greatly restrict community abilities under Site Plan Review.
(c) An ordinance or by-law requiring site plan review, whether adopted under this section or under the municipality’s home rule authority, shall comply with the provisions of this and all following subsections of Section 7A. The ordinance or by-law shall establish the submission, review, and approval process for applications, which may include the requirement of a public hearing held pursuant to the provisions in section eleven of this chapter. Approval of a site plan shall require a simple majority vote of the designated authority and shall be made within the time limits prescribed by ordinance or by-law, not to exceed 90 days from the date of filing of the application. If no decision is issued within the time limit prescribed, the site plan shall be deemed constructively approved as provided in section 9, paragraph 11 of this chapter. The submission and review process for a site plan submitted in connection with an application for a special permit or variance shall be conducted with the review of such application in a coordinated process.
Here we start getting interesting. Planners in the state need to look this over quite carefully, sentence by sentence.
An ordinance or by-law requiring site plan review, whether adopted under this section or under the municipality’s home rule authority, shall comply with the provisions of this and all following subsections of Section 7A.
This sentence essentially replaces how one might adopt Site Plan Review under Home Rule Authority with a requirement that towns must follow this new statute. It protects towns only to the extent that currently there is no formal authorization for, nor prohibition on, towns conducting site plan review. This could be seen as a first step in limiting, and ultimately prohibiting such review. Perhaps this is being too wary of the intent, however, the limits imposed upon cities and towns in the entire Land Use Partnership Act warrant such apprehension. The time necessary for careful review of all projects are proposed to be limited, the role of the courts in reviewing project approvals are proposed to be limited. How else should one take this? This proposal limits Site Plan Review as a mechanism to make the process more amenable to development interests.
The ordinance or by-law shall establish the submission, review, and approval process for applications, which may include the requirement of a public hearing held pursuant to the provisions in section eleven of this chapter.
This section raises a question that communities will need to address. Personally, I believe board actions on development proposals need to respect the rights of abutters to know what is going on. If a public hearing is not required, the suggestion would exist that there be no abutters notice distributed about the review either. This would suggest that a Site Plan Review can take place with the most basic 48 hour posting of an agenda. Unfortunately, this leaves the boards poorly prepared to respond to what could be a fairly substantial project as the process would leave out the opportunity for notice to, and participation of, the people who will be most directly affected by the project under review. It could even make it impossible for the board to fully comprehend the full impact of a proposed project. Personally, I believe that Site Plan Review should be subjected to a proper public review through the public hearing process. Beyond what I noted above, it also lends an air of legitimacy to the process and keeps the discussion all above board. Obviously, the Boards hands may be tied requiring approval of the project, but it opens up the review to maximize scrutiny of the proposal.
Approval of a site plan shall require a simple majority vote of the designated authority and shall be made within the time limits prescribed by ordinance or by-law, not to exceed 90 days from the date of filing of the application. If no decision is issued within the time limit prescribed, the site plan shall be deemed constructively approved as provided in section 9, paragraph 11 of this chapter.
Establishing the vote requirement seems appropriate. Currently I do believe that there is much confusion about how to approach a Site Plan Review approval. This sentence however combines voting with a limit on the review, I added the following sentence as it is interrelated with the second half of the main sentence. The limit of a maximum review of 90 days is restrictive. Granted, it is longer than the 60 days in the Attorney General’s model by-law, but this is mandating a time limit, the model by-law can be modified by the community in the adoption process to a more reasonable time period. Or left open ended. I know many communities are capable of addressing most applications in a single meeting. Therefore, most of the time, we will not run up against this clock. However, there are the exceptions to the rule, usually due to a complicated project, or a non-cooperative applicant. Towns should not be placed into the position.
The submission and review process for a site plan submitted in connection with an application for a special permit or variance shall be conducted with the review of such application in a coordinated process.
This process is generally currently conducted. However, the Special Permit process described later in this proposal grants a longer time-table (still limiting however on local officials) than is provided for in this section. Given the desire to coordinate these efforts, timetables should be the same, preferably at the longer time limit, or with no statutorily established time limit.
(d) Site plan review may include only those conditions that are necessary: (i) to ensure substantial compliance of the proposed use of land or structures with the requirements of the zoning ordinance or by-law; or (ii) to mitigate any extraordinary adverse impacts of the project on adjacent properties or public infrastructure. Site plan approval may not require the payment or performance of any off-site mitigation, except that site plan approval may be subject to development impact fees imposed in accordance with the provisions of Section 9D of this chapter. A site plan application may be denied only on the grounds that: (i) the proposed use of land or structures project does not meet the conditions and requirements set forth in the zoning ordinance or by-law; (ii) the applicant failed to submit information and fees required by the zoning ordinance or by-law and necessary for an adequate and timely review of the design of the proposed land or structures; or (iii) it is not possible to adequately mitigate extraordinary adverse project impacts on adjacent properties or public infrastructure by means of suitable site design conditions.
This section will have to broken down into its individual components as well. Some portions of this accurately reflect the Site Plan Review Process, other aspects unfairly limit the review and approval process.
(d) Site plan review may include only those conditions that are necessary: (i) to ensure substantial compliance of the proposed use of land or structures with the requirements of the zoning ordinance or by-law;
At first glance one would conclude that this is accurate, however, this section does not require compliance with zoning! It only sets a “substantial compliance.” I may be splitting hairs here, but Lawyers.com defines “substantial compliance” as
“compliance with the substantial or essential requirements of something (as a statute or contract) that satisfies its purpose or objective even though its formal requirements are not complied with”
Essentially, this statute will set the bar below that of zoning compliance, the basic standard for site plan review. My own guess will be that towns will be forced to litigate “substantial compliance” and could find that absolute compliance will lose out. This standard would seem to be a method for allowing, through Site Plan Review, with no public hearing requirement (as discussed earlier), the Site Plan Review Authority to vary the zoning by-law. This would seem to be totally unacceptable. Abutters will find that zoning protections ultimately mean nothing.
or (ii) to mitigate any extraordinary adverse impacts of the project on adjacent properties or public infrastructure.
This restriction on the Site Plan Review authority is, again, extremely limiting. It represents another issue open to substantial litigation. Lawyers.com defines “extraordinary” as:
1 a: going beyond what is usual, regular, or customary
specif
: of, relating to, or having the nature of a proceeding or action not normally required by law or not prescribed for the regular administration of law <an ~ session of the legislature> <granted ~ relief>
compare ordinary
Let’s think about this from a few realistic examples. Take a commercial project next door to a residential use, and a simple, but controversial, issue site lighting. An ordinary issue, site lighting on the residential property may be outside the jurisdiction of the site plan review. An extraordinary impact, floodlight shining into a bedroom window, might be within the reviews jurisdiction. Storm water runoff could be an even greater issue. Runoff is associated with just about any project. So is runoff ordinary? Or is it extraordinary?
Site plan approval may not require the payment or performance of any off-site mitigation, except that site plan approval may be subject to development impact fees imposed in accordance with the provisions of Section 9D of this chapter.
This is probably the most objectionable aspect of this section. No off site mitigation. On Cape Cod, at least we have the discretionary review referral to the Cape Cod Commission. While I am not a big fan of using this action, the change proposed will trigger consideration of such a referral for many projects otherwise capable of being reviewed at the local level. I can think of many off-site requirements that are directly the result of a single project, and not the general development patterns of the town or area. These would include turn lanes at driveways, sidewalks or barriers in the road to ensure no left turns are made into or out of a particular driveway. Growth review efforts in other states, such as Florida, or even here on the Cape have focused on concurrency. Having the necessary infrastructure in place by the time a project opens its doors to ensure that the project does not have an adverse impact on the surrounding area. This proposal turns that idea on its head. AND it is carried over to the Special Permit authorized projects as well!
A site plan application may be denied only on the grounds that: (i) the proposed use of land or structures project does not meet the conditions and requirements set forth in the zoning ordinance or by-law;
This seems to contradict the earlier “substantial compliance” requirement. I can see this contradiction becoming a controversial issue that will lead to challenges in court. I can see the initial challenge, “did the legislature mean substantial or strict compliance with zoning?”
(ii) the applicant failed to submit information and fees required by the zoning ordinance or by-law and necessary for an adequate and timely review of the design of the proposed land or structures;
I can see the arguments in court over this. Many times I have seen the more controversial projects involve disagreement over what is necessary for an adequate and timely review. In fact, I have a project right now in its fourth month of review, the delay being the adequacy of the plans. The proposal involves a propane facility which has not provided fire suppression plans or the normal detailed site plans that would be required of any other commercial project. Judges will be being asked to determine whether the request for adequate plans by communities are reasonable
or (iii) it is not possible to adequately mitigate extraordinary adverse project impacts on adjacent properties or public infrastructure by means of suitable site design conditions.
So, a town can deny a project due to the inability to mitigate extraordinary adverse impacts on adjacent properties and infrastructure, but they cannot require off-site mitigation, which could remediate these adverse impacts. Makes no sense to me.
(e) Zoning ordinances or by-laws shall provide that a site plan approval granted under this section shall lapse within a specified period of time, not less than two years from the date of the filing of such approval with the city or town clerk, if substantial use or construction has not yet begun, except as extended for good cause by the approving authority. Such extension shall not include time required to pursue or await the determination of an appeal under subsection (f) or Section 17. The aforesaid minimum period of two years may, by ordinance or by-law, be increased to a longer period.
This is a problem, both in here and in the Special Permit section. Currently no permit is good for longer than two years. This proposal sets this on end and sets the minimum time period for a permit to remain valid to the current maximum time period. There is little justification for allowing such a long time period for a project to get underway. They seek the permits, they should generally be ready to go. Setting a minimum time period for getting making use of a permit at two years seems excessive. Perhaps towns should have a greater ability to extend a permit once granted through the public hearing process.
(f) Except where site plan review is required in connection with the issuance of a special permit or variance, decisions made under site plan review, whether made pursuant to statutory or home rule authority, may be appealed by a civil action in the nature of certiorari pursuant to Chapter 249, Section 4 of the General Laws, and not otherwise. Such civil action may be brought in the superior court or in the land court and shall be commenced within twenty days after the filing of decision of the site plan review approving authority with the city or town clerk. All issues in any proceeding under this section shall have precedence over all other civil actions and proceedings. A complaint by a plaintiff challenging a site plan approval under this section shall allege the specific reasons why the project fails to satisfy the requirements of this section or the zoning ordinance or by-law or other applicable law and allege specific facts establishing how the plaintiff is aggrieved by such decision. The approving authority’s decision in such a case shall be affirmed unless the court concludes the approving authority abused its discretion under subsection (d) in approving the project.
A few problems with this, first, the proposal takes appeals out of the Chapter 40A Section 17 procedures. I believe that all appeals under the zoning act should be governed by the same appeals process. This section will provide a unique and new process for appeal of Site Plan Review decisions, treating them different from other zoning appeals.
The section also establishes limits on the nature of appeals and ultimately directs a decision on very narrow grounds – abuse of discretion. Given all the other limits on the Site Plan Review entity, the court appears to be the only avenue for abutters to ensure proper decisions are made, and this portion of the statute takes this away as well.
(g) In municipalities that adopted a zoning ordinance or by-law requiring some form of site plan review prior to the effective date of this act, the provisions of this Section 7A shall not be effective with respect to such zoning ordinance or by-law until the date one year after the effective date of this act.
Not much to say about this section, essentially it gives communities one year to amend their Site Plan Review Procedures to match the amended process.
No comments:
Post a Comment