Section 7 of this section of the Land Use Partnership Act is particularly scary. The Lewis Builders cases in New Hampshire essentially established a "builder's remedy" for developers to argue that a community's zoning did not implement or contradicted the local plan. At a minimum, the proposals within this document does exactly the same - if not outright declares a communities old zoning invalid. Communities pursuing certification under this statute will need to clearly understand that to certify their plan, and zoning calls for far more than bringing the plan, and proposed zoning changes through the regional review process prior to adoption. It really also entails having the regional planning agency review the town's complete zoning scheme reviewed and certified - even the zoning that is not changing. After having the full zoning scheme certified, the entire zoning by-law will need to be re-adopted by the town. Failure to carefully follow this process will trigger a determination that any existing zoning not certified as consistent as void. Such an occurrence will leave large sections of communities without any zoning protection at all.
In addition, there are provisions in the proposal that essentially provide certified communities no protection at all. In fact, it is so open to private manipulation that it leaves communities with almost no protection even if they are certified!
7) Effect of certified plan status on zoning and land use regulation
(a) Following the municipality’s effective date, local zoning ordinances or by-laws, subdivision rules and regulations, and other local land use regulations (other than certified implementing regulations) which are determined to be inconsistent with the certified plan or the certified implementing regulations shall be deemed invalid. Such a determination may be sought and obtained through any means otherwise available by statute for the determination of the validity of such land use regulations. Any material amendment to a certified plan or certified implementing regulations that has not been prepared, certified and adopted in accordance with the provisions hereof shall be presumed to be inconsistent with the certified plan.
While not specifically calling for certification of existing zoning, this section leaves open the challenge as inconsistent any existing zoning that has not been certified. That's the bad part of this regulation. Unfortunately it outweighs the good part, which is the protections provided by requiring changes to the implementing regulations to be certified - something that protects towns from hostile attacks on zoning by special interests.
(b) Following the municipality’s effective date, a zoning ordinance or by-law that limits the number of new housing units within residential development districts for which building permits may be issued in any twelve month period to an amount equal to or greater than one-fifth of the housing target number (but in no event less than ten new housing units) shall not be declared exclusionary or otherwise against public policy.
This is an attempt to legislate authorization for actions that have had fairly strict judicial review. Outside of Cape Cod, communities have been restricted to proving a need for a building cap and limiting the length of the cap to allow for eventually solving the problem that led to the cap. This provision allows for an open ended restriction on building, as long as the community remains certified. However, the requirement is based upon having the residential development districts in place, and only allows for limiting building permits within these designated districts. It does not limit building permits town-wide, or provide any level of protection for communities outside of the residential development districts.
(c) Following the municipality’s effective date, a zoning ordinance or by-law that requires a minimum lot area of two acres or more for single-family residential development upon farmland, forest land or other land of environmental resource value shall not be declared exclusionary or otherwise against public policy.
Not really sure what this grants to communities with certified plans. The courts have already established the large lot zoning can be implemented if it is the minimum necessary to protect a valued resource, specifically the types of areas that this seeks to protect. Essentially the proposal grants towns something they already have. This begs the question, will adding this section to the certified plan community's list of protections alter the existing court position on the use of such standards in non-certified plan communities? I for one do not want to find out. This section should be stricken quickly from this proposal, and leave the existing court standards unchanged.
(d) If at any time more than two years after the municipality’s effective date the total number of housing units for which building permits have been applied for within the residential development districts since the municipality’s effective date is greater than the housing target number (adjusted pro rata for the number of years since the municipality’s effective date), but the total number of housing units for which building permits have been issued within the residential development districts is less than the pro rata housing target number, then the provisions of this subsection shall be in effect. During such time period, any applications for building permits or other local land use permits for residential development within such residential development districts shall deemed constructively approved if not acted upon within 180 days after receipt of permit applications. In addition, an application received under this section shall be subject only to those conditions that are necessary to ensure substantial compliance of the proposed development project with applicable laws and regulations; and it may be denied only on the grounds that: (i) the proposed development project does not substantially comply with applicable laws and regulations, or (ii) the applicant failed to submit information and fees required by applicable laws and regulations and necessary for an adequate and timely review of the development project. The foregoing provisions shall no longer be in effect once the total number of housing units for which building permits have been issued within such residential development districts equals or exceed the pro rata housing target number.
This provision is very difficult to follow, lets break it into its parts to decipher:
If at any time more than two years after the municipality’s effective date the total number of housing units for which building permits have been applied for within the residential development districts since the municipality’s effective date is greater than the housing target number (adjusted pro rata for the number of years since the municipality’s effective date), but the total number of housing units for which building permits have been issued within the residential development districts is less than the pro rata housing target number, then the provisions of this subsection shall be in effect....
So, to start, the town issues building permits that exceed what they are required to issue, but the builders do not build those units.....
....then the provisions of this subsection shall be in effect.
...special restrictions come into play.
During such time period, any applications for building permits or other local land use permits for residential development within such residential development districts shall deemed constructively approved if not acted upon within 180 days after receipt of permit applications.
Even though the community met its requirements to provide housing opportunities, and the permits are issued, the fact that builders choose not to build These special provisions essentially places the fault on the community and make things easier for private developers to acquire more permits....
In addition, an application received under this section shall be subject only to those conditions that are necessary to ensure substantial compliance of the proposed development project with applicable laws and regulations;
...even to the extent of removing any conditions the town may have placed on the application....
and it may be denied only on the grounds that: (i) the proposed development project does not substantially comply with applicable laws and regulations, or
...restricts a community's ability to deny a project that does not fully comply with zoning (here we get that substantially comply standard established again which suggests that projects that do not strictly comply have some rational basis for approval)...
(ii) the applicant failed to submit information and fees required by applicable laws and regulations and necessary for an adequate and timely review of the development project.
Gee, no brainer, lack of adequate plans or application fees would seem to equal no application actually being filed, anywhere except Massachusetts that is.
The foregoing provisions shall no longer be in effect once the total number of housing units for which building permits have been issued within such residential development districts equals or exceed the pro rata housing target number.
And, finally, as long as the builders do not build housing equal to 2% of the housing in the community over a two year time frame the certified plan provides the community no protection.
As I said, this section is quite scary.
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