Land Use Partnership Act - Random Thoughts on How to Fix It - Zoning Freezes

The Land Use Partnership Act suggests that the permitting process at the local level is broken.  Unfortunately, the document has several areas where the concept of plan approval, the granting of special permits, and the issuance of building permits are interchanged.  In this post I am going to address the issue of the freeze discussion found in Section I 6, specifically the replacement of the fifth paragraph of the existing Chapter 40A Section 6.

I have had discussions which suggest the proposed is intended to shorten the grandfathering time period for subdivisions.  At a minimum the section is so confusing that it is quite difficult to see, especially with adding an additional step.  If the goal is to only provide zoning protection to a plan that is already filed, let's simply do that.

As it was explained to me, the letter of intent gets filed before first notice, that sustains the zoning freeze.  That part I see.  The first unclear aspect for me is related to plan filing.  I interpret part of this to suggest the freeze is for an extended period - the eight year reference related to the letter filing.  In another location it suggests that a preliminary plan or definitive plan must be filed before the vote on the amendment.

A second confusion is, the reading of the portion of the amendment related to the letter of intent, suggests that protections could be made for a project on a parcel that does not need to be subdivided.  However, this is not followed up on, and the next paragraph of Chapter 40A Section 6 is not touched.

I will address how Section I subsections 5 and 6 (and the untouched ANR paragraph) could all be tied together in my next post.  That will be one that should generate significant discussion -as it would expand some protections for land owners, provide a more level playing field in the permitting process, while also providing some greater limitations on grandfathering as well. 

First, lets address how to change the existing Chapter 40A Section 6 fifth paragraph to meet what has been proposed.  I would suggest we get rid of the confusion created by adding the additional step of the letter of intent.  Either of the following would meet that goal:

Replace the fifth paragraph of Section 6 of Chapter 40A with the following:

If 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, and written notice of such submission has been given to the city or town clerk the development described in such definitive or preliminary plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of such submittal, for a vesting period that ends eight years from the date of such written notice of submission; provided that the development described in such written notice shall be subject to subsequent amendment of the zoning ordinance or by-law, if the first notice thereof was posted prior to such written notice of submission, before the effective date of ordinance or by-law, the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of the first such submission while such plan or plans are being processed under the subdivision control law, and, if such definitive plan or an amendment thereof is finally approved, for eight years from the date of the endorsement of such approval, except in the case where such plan was submitted or submitted and approved before January first, nineteen hundred and seventy-six, for seven years from the date of the endorsement of such approval. Whether such period is eight years or seven years, 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.

Or even simpler to strike the words illustrated from said paragraph:

If 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, and written notice of such submission has been given to the city or town clerk before the effective date of ordinance or by-law, the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of the first such submission; provided that the development described in such written notice shall be subject to subsequent amendment of the zoning ordinance or by-law, if the first notice thereof was posted prior to such written notice of submission, while such plan or plans are being processed under the subdivision control law, and, if such definitive plan or an amendment thereof is finally approved, for eight years from the date of the endorsement of such approval, except in the case where such plan was submitted or submitted and approved before January first, nineteen hundred and seventy-six, for seven years from the date of the endorsement of such approval. Whether such period is eight years or seven years, 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.

I will admit, that I am just as suspicious of how a process can be abused as the next guy.  I honestly can see a property owner filing a letter of intent with the Planning Board and Town Clerk immediately after each town meeting, at the same time the submit a letter requesting to be notified of any zoning changes being posted.  Thus, with the letter of intent, the sophisticated developer would be given a far more advantageous position than the typical property owner.  Is this really what we want to be proposing?