I am going to try to address this section in one post, which will just about wrap up my personal thoughts on this legislation. My biggest concern is that, while they are proposing changes that "will only affect certified plan communities" they are making changes to portions of Chapter 41 Section 81 that could be viewed as being implemented more broadly. Adding simple caveats into the legislation reflecting more clearly what is intended (which has been placed in one of the definitions changes being proposed).
III. MODIFICATIONS TO LOCAL LAND USE REGULATION AFFECTING CERTIFIED PLAN COMMUNITIES
1) ANR, minor subdivision review
Insert the following new paragraphs within Section 81L of Chapter 41:
“Certified plan community” shall have the meaning set forth in Section [2] of Chapter 41.
This change is simple enough, giving Certified Plan Communities recognition within Chapter 41.
“Minor subdivision review ” shall mean an alternative method of approval under the subdivision control law, applicable to any proposed division of a tract of land into four or fewer lots, under which: (a) no preliminary plan is required; (b) approval is granted by a simple majority of the planning board; (c) decisions are made within 60 days, or else deemed constructively approved, as defined in Section [2] of Chapter 41; (c) approval shall be based solely on the compliance of the lots shown with reasonable rules and regulations regarding the adequacy of access, utilities and stormwater drainage controls and on the compliance of the lots shown with the zoning ordinance or by-law; and (d) such rules and regulations may include a requirement that two or more of the lots have shared access to an existing public way, but may not impose design or construction requirements on such shared access other than those minimally necessary to provide for public safety. Lots approved under minor subdivision review may not be re-subdivided so as to create additional lots under minor subdivision review for a period of ten years after initial approval.
Here the proposal is to add a new definition for plans subjected to Minor Subdivision Review. We are in a definition section, this definition reads like it could be applied in any community. The definition should be changed to add reference to the community being a Certified Plan Community. This really should be right up front, I would suggest that the change be made in the opening clause such that it might read "“Minor subdivision review ” shall mean an alternative method of approval in Certified Plan Communities under the subdivision control law...."
Modify the definition of “subdivision” within Section 81L of Chapter 41 as follows:
“Subdivision” shall mean the division of a tract of land into two or more lots and shall include resubdivision, and, when appropriate to the context, shall relate to the process of subdivision or the land or territory subdivided; provided, however, unless a municipality is a certified plan community and has in effect minor subdivision review procedures, that the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision within the meaning of the subdivision control law if, at the time when it is made, every lot within the tract so divided has frontage on (a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon. Such frontage shall be of at least such distance as is then required by zoning or other ordinance or by-law, if any, of said city or town for erection of a building on such lot, and if no distance is so required, such frontage shall be of at least twenty feet. If a municipality is a certified plan community and has in effect minor subdivision review procedures, then any division of a tract of land into two or more lots, including resubdivision, shall be deemed to constitute a subdivision within the meaning of the subdivision control law, except as provided in the following sentence. Conveyances or other instruments adding to, taking away from, or changing the size and shape of, lots in such a manner as not to leave any lot so affected without the frontage above set forth, or the division of a tract of land on which two or more buildings were standing when the subdivision control law went into effect in the city or town in which the land lies into separate lots on each of which one of such buildings remains standing, shall not constitute a subdivision. Within a certified plan community that has adopted minor subdivision review procedures as of the municipality’s effective date, a tract of land that was divided into two or more lots pursuant to Chapter 41, Section 81P of the General Laws prior to the municipality’s effective date, but after December 1, 2008, shall be deemed a subdivision within the meaning of the subdivision control law with respect to the lots so created for which a building permit has not been issued by the municipality prior to the municipality’s effective date.
This section has the verbiage that should have been included in the previous definition change.
The final change deals with adding additional verbiage to Chapter 40A Section 6. Outside of the fact that Section 6 is already long, tedious and difficult to read, the additional wording really only applies to communities with certified plans and reads as follows:
2) Zoning plan freeze
Insert the following new paragraph after the new paragraphs that follow the new paragraphs of Section 6 of Chapter 40A (see I(A)(6) above):
Within a municipality that is a certified plan community, if a declaration of development intent is submitted to a planning board on or after the municipality’s effective date, 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 and all other local land use regulations, if any, in effect at the time of such written notice of submission, for a vesting period that ends either: (a) three years from the date of such written notice of submission, or (b) to the extent the land shown on the plan has been previously been disturbed, and if there has been substantial investment in site preparation and/or infrastructure construction within such three years, five 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 or of any other local land use regulations, if the first notice thereof was posted prior to the date of 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 or of any other local land use regulations, 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. Whatever the length of such vesting period, it 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.
All the proposed changes in this section provide relief to communities with certified plans. I am not really sure whether the change from Approval Not Required to Minor Subdivision Approval is really all that big a change. It would be great to have the extra time and the requirement that the lots comply with zoning, which ANR lots do not have to do, but the costs associated with getting certification may be too great a burden.
Similarly the zoning freeze change to only three years, over the current eight sounds great, but the other changes that are proposed, the letter of intent to develop, the minimum two year life of a permit, etc, are, again, too great a cost.
The final section of the proposed act, Section 4, deals with providing funding, outside of the fact that $1,000,000 will provide far too little funding for communities to develop these plans, I really do not have anything to say.
Anyway, thanks for listening to my month long rant on this proposal. Hopefully it will open up some eyes, get the committee that crafted this looking at the proposal from the local level, and withdraw it to re-write the act.
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