Completing this discussion has become even more urgent. In today's Boston Globe it was reported that the Governor's Office has submitted legislation to change the "arcane" zoning statute. It has now reached the critical point for communities to rally and tell their legislators that the administration's proposed zoning amendments are not what cities and towns have been asking for. We need to demand that the administration withdraw its proposal which simply confuses the discussion of zoning reform.
The administration change to the Subdivision Control Act are "minor" in the amount of words actually changes. However, the change is major if you are a resident of a community with any significant land area available to be subdivided. The following is the proposed wording in the proposed act:
B) Modifications to Chapter 41 (subdivision review)
1) Planning board rules and regulations
Modify Section 81Q of Chapter 41 as follows:
Section 81Q. After a public hearing, notice of the time and place of which, and of the subject matter, sufficient for identification, shall be published in a newspaper of general circulation in the city or town once in each of two successive weeks, the first publication to be not less than fourteen days before the day of the hearing or if there is no such newspaper in such city or town then by posting such notice in a conspicuous place in the city or town hall for a period of not less than fourteen days before the day of such hearing, a planning board shall adopt, and, in the same manner, may, from time to time, amend, reasonable rules and regulations relative to subdivision control not inconsistent with the subdivision control law or with any other provisions of a statute or of any valid ordinance or by-law of the city or town. Such rules and regulations may prescribe the size, form, contents, style and number of copies of plans and the procedure for the submission and approval thereof, and shall be such as to enable the person submitting the plan to comply with the requirements of the register of deeds for the recording of the same, and to assure the board of a copy for its files; and shall set forth the requirements of the board with respect to the location, construction, width and grades of the proposed ways shown on a plan and the installation of municipal services therein, which requirements shall be established in such manner as to carry out the purposes of the subdivision control law as set forth in section eighty-one M. Such rules and regulations shall not require referral of a subdivision plan to any other board or person prior to its submission to the planning board. In establishing such requirements regarding ways, due regard shall be paid to the prospective character of different subdivisions, whether open residence, dense residence, business or industrial, and the prospective amount of travel upon the various ways therein, and to adjustment of the requirements accordingly; provided, however, that in no case shall a city or town establish rules or regulations regarding the laying out, construction, alteration, or maintenance of ways within a particular subdivision which exceed the standards and criteria commonly applied by that city or town to the laying out, construction, alteration, or maintenance of its publicly financed ways located in similarly zoned districts within such city or town. Without limiting the foregoing, there shall be a rebuttable presumption that such requirements are unlawfully excessive, to the extent that the requirements for subdivisions within zoning districts having a minimum lot size of 40,000 square feet exceed the standards and criteria previously applied by that city or town to the laying out, construction, alteration, or maintenance of ways within previously approved subdivisions within zoning districts having a minimum lot size of 20,000 square feet or less.. Such rules and regulations may set forth a requirement that a turnaround be provided at the end of the approved portion of a way which does not connect with another way. Any easement in any turnaround shown on a plan approved under the subdivision control law which arises after January first, nineteen hundred and sixty, other than an easement appurtenant to a lot abutting the turnaround, shall terminate upon the approval and recording of a plan showing extension of said way, except in such portion of said turnaround as is included in said extension, and the recording of a certificate by the planning board of the construction of such extension. Such rules and regulations may set forth a requirement that underground distribution systems be provided for any and all utility services, including electrical and telephone services, as may be specified in such rules and regulations, and may set forth a requirement that poles and any associated overhead structures, of a design approved by the planning board, be provided for use for police and fire alarm boxes and any similar municipal equipment and for use for street lighting. The rules and regulations may encourage the use of solar energy systems and protect to the extent feasible the access to direct sunlight of solar energy systems. Such rules and regulations may include standards for the orientation of new streets, lots and buildings; building set back requirements from property lines; limitations on the type, height and placement, of vegetation; and restrictive covenants protecting solar access not inconsistent with existing local ordinances or by-laws. Except in so far as it may require compliance with the requirements of existing [zoning] ordinances or by-laws, no rule or regulation shall relate to the size, shape, width, frontage or use of lots within a subdivision, or to the buildings which may be constructed thereon, or other subject matters addressed thereby, or shall be inconsistent with the regulations and requirements of any other municipal board acting within its jurisdiction. No rule or regulation shall require, and no planning board shall impose, as a condition for the approval of a plan of a subdivision, that any of the land within said subdivision be dedicated to the public use, or conveyed or released to the commonwealth or to the county, city or town in which the subdivision is located, for use as a public way, public park or playground, or for any other public purpose, without just compensation to the owner thereof. The rules and regulations may, however, provide that not more than one building designed or available for use for dwelling purposes shall be erected or placed or converted to use as such on any lot in a subdivision, or elsewhere in the city or town, without the consent of the planning board, and that such consent may be conditional upon the providing of adequate ways furnishing access to each site for such building, in the same manner as otherwise required for lots within a subdivision. No rule or regulation shall require, and no planning board shall impose, as a condition for the approval of a plan of a subdivision, the payment or performance of off-site mitigation, except for the imposition of a development impact fee under Chapter 40A, Section 9D. A true copy of the rules and regulations, with their most recent amendments, shall be kept on file available for inspection in the office of the planning board of the city or town by which they were adopted, and in the office of the clerk of such city or town. A copy certified by such clerk of any such rules and regulations, or any amendment thereof, adopted after the first day of January, nineteen hundred and fifty-four shall be transmitted forthwith by such planning board to the register of deeds and recorder of the land court. Once a definitive plan has been submitted to a planning board, and written notice has been given to the city or town clerk pursuant to section eighty-one T and until final action has been taken thereon by the planning board or the time for such action prescribed by section eighty-one U has elapsed, the rules and regulations governing such plan shall be those in effect relative to subdivision control at the time of the submission of such plan. When a preliminary plan referred to in section eighty-one S has been submitted to a planning board, and written notice of the submission of such plan has been given to the city or town clerk, such preliminary plan and the definitive plan evolved therefrom shall be governed by the rules and regulations relative to subdivision control in effect at the time of the submission of the preliminary plan, provided that the definitive plan is duly submitted within seven months from the date on which the preliminary plan was submitted.
Pulling no punches, the changes proposed here are, again, horrendous. Let's start with the changes affecting roadway design.
Without limiting the foregoing, there shall be a rebuttable presumption that such requirements are unlawfully excessive, to the extent that the requirements for subdivisions within zoning districts having a minimum lot size of 40,000 square feet exceed the standards and criteria previously applied by that city or town to the laying out, construction, alteration, or maintenance of ways within previously approved subdivisions within zoning districts having a minimum lot size of 20,000 square feet or less..
Why should the state establish a limit on roadway design? This section essentially establishes that, if a town has 40,000 sf lot sizes and modifies its roadway design standards the changes are assumed to be exclusionary and the town must be prepared to defend its application of these new standards. Personally and professionally I have many problems with this proposal and the assumptions used.
First, the state is turning the Subdivision Control Act into a weapon against the cities and towns. The Subdivision Control Act is intended for communities to guide the development of the town and to coordinate the location and construction of ways, according to a plan, per the requirements of Chapter 41 Section 81D. The proposed change automatically assumes that the town's establishment of street standards are flawed, if the town has large lot sizes. Thus the coordination of ways aspect of the Subdivision Control Act is taken away from the town and essentially turned over to any developer choosing to challenge the town's subdivision road standards.
Second, many communities adopted 40,000 sf lot sizes long before anyone had any concept of what a proper road design standard should be. Why should the state now decide to tie a limit on roadway design standards to a set of standards which may not meet modern roadway construction? Some towns established 20,000 sf lot sizes in the 1950’s and paid no attention to roadway construction standards. This would essentially say that these sections of town could revert to dirt roads for subdivisions.
Further on in this section, the issue of off-site improvements once again raises its ugly head.
No rule or regulation shall require, and no planning board shall impose, as a condition for the approval of a plan of a subdivision, the payment or performance of off-site mitigation, except for the imposition of a development impact fee under Chapter 40A, Section 9D.
Essentially the provisions establish that the only mechanism for addressing off-site issues will be through impact fees. This has many problems. First, improvements at a subdivision intersection could be considered off-site. Sidewalks and turn lanes along the frontage could also be considered off-site, but would be necessitated by the development in question. In many other discussions of public health, energy conservation, etc, the state has raised the issue that people do not walk, do not have safe places to walk, and so on. The provisions of this section would limit the ability of a community to require a site to connect its sidewalks to adjacent - off-site sidewalks, especially since we are prohibited from considering any dedications of area for public use within a subdivision (essentially requiring the sidewalks to be provided on-site. Again, this is totally illogical and flies in the face of proper land planning, and planning for the connection of public facilities.
Given the limited ability to deny subdivisions, it would seem that these restrictions place communities even further behind the 8-ball.
Another aspect is the idea that perhaps a development, without particular improvements would be “premature and scattered” a concept in the original zoning enabling act that is not present in Chapter 40A, Chapter 41 or this proposal. The “premature and scattered” provisions can be used to allow a town to deny a project when the road capacity or sewer service or water service, etc. is not available to serve the subdivision. The alternative to a “premature and scattered” finding is a requirement for an applicant to provide a particular improvement. So, a project outside a sewer improvement district might extend the sewer line to its property out of pocket in order to be approved. The provisions of this section completely prohibit that approach. Essentially a one-size fits all solution being imposed on 351 communities.
The next discussion should cause all the citizens of the Commonwealth to jump up and down. The proposal to be discussed is the one to limit appeals, and to establish that board approvals must be given special consideration as being correct.
No comments:
Post a Comment