Personal Thoughts on the Land Use Partnership Act – Part 5 – Changes to Special Permits

The proposed legislation includes a small proposal to modify the Special Permit process for communities. While a small proposal, it has a significant impact on the process. The relevant section is below:

10) Duration of special permits

Modify the fourteenth paragraph of Section 9 of Chapter 40A as follows:

Zoning ordinances or by-laws shall provide that a special permit granted under this section shall lapse within a specified period of time, not lessmore than two years from the date of the filing of such approval with the city or town clerk, which shall not include such time required to pursue or await the determination of an appeal referred to in section seventeen, from the grant thereof, if a substantial use thereof has not sooner commenced except for good cause or, in the case of permit for construction, if or construction has not yet begun by such date, except as extended for good cause by the permit granting authority. Such extension shall not include such time required to pursue or await the determination of an appeal referred to in section seventeen. The aforesaid minimum period of two years may, by ordinance or by-law, be increased to a longer period.

As with the Site Plan Review and Vesting discussions. The proposal calls for changing the period for which a Special Permit is granted to a minimum of two years over the current maximum of such a time period. Two years is a long time within the planning framework. Conditions change, new studies are completed. Decisions may be made that previously allowed uses are not compatible with adjacent land uses or natural resources. The proposal appears to be a reaction to some actions by communities to address problems with a particular type of development subsequent to such a project being applied for. Unfortunately, this change is extremely punitive, and would provide a minimum protection that is equal to 20% of the life span of a certified local comprehensive plan. When coupled with the vesting changes previously discussed, the new community plan may not impact many projects, as vesting could protect projects through-out the proposed ten-year life of a plan.

Personally, I believe that the minimum grant of a Special Permit should be left as it is. A revision could consider extending the period within which a Planning Board could extend a Special Permit. Such a change would be community and developer friendly. The changes currently proposed are not community friendly.

Chicken and Egg? Do Jobs Follow Housing, or Does Housing Follow Jobs?

Planetizen provided me this link to this January 3, 2009 Boston Globe article, Study Finds Housing Key to Job Growth. I have to tell you, looking at the growing number of foreclosures happening both to homeowners and to builders, I think the release of this study was ill-timed. Arguably there are links between housing growth and employment growth. There is clearly a need for a match between the two, but what is the correct match? Which should come first? Were the numbers of houses being built in the areas cited built to attract jobs? Or were they built in anticipation that the rapid job growth would create a need for housing?

Is the current recession due to a drop in housing construction? Or did housing construction drop because of job losses?

The article is even more interesting, in that the Globe, the very next day, called the results of this study into question. In the article Seeing Ahead in 2009, any widely held belief that housing availability is tied to job growth is debunked. The economic recession is highlighted. The drop in housing production as a percent of the overall national economy has hit the lows that typically signal the end to a housing bust. The report notes that several leading economists are predicting even further drops in housing production and value.

Other reports illustrate that several of the states cited in the Housing Study report are among the tops in home foreclosures. Indianapolis, Indiana and Columbus, Ohio are highlighted in the opening statement of the "models." Ohio is the third highest foreclosure state in the country (here), and tops among the "Rust Belt" states. The Housing Study also compares Boston to Los Angeles and San Diego relative to housing costs, California is the number 1 state for foreclosures. You can read more about San Diego's building problems here.

So, where are we? Did housing growth hold back job growth? Did municipal regulations hold back housing growth and therefore job growth? Or, did the local area, and by that I mean much of New England, learn from the last housing bust? I have talked to many of the local builders here on the Cape in recent weeks. They are reporting that they are sweating out this downturn, but they expect to make it. They say that they will make it through this one because they did not get over extended with building "spec housing."

I would concede that there are communities that are exclusionary. However, I think it is hard to blame the employment drag in the local economy on the lack of housing construction or these exclusionary tendencies. New land use development patterns are clearly needed, as will increased state spending for infrastructure projects to support these new land use patterns. Higher densities in some areas, increased open space preservation in others is needed. The one-acre and larger lot sizes everywhere is not sustainable, but the "solution du-jour" of simply pushing higher densities, is also not sustainable. In 2003, Mass Audubon reported we were losing as much as 78 acres of open land (farm and forest) to development every day. We simply cannot solve the housing construction shortage, if there is one, while not addressing the loss of forest and farms in the state as well.

In a number of recent reports the Globe has taken a very anti-community position. Printing the results of every report that relates any possible problem to the lack of housing. It really seems like if Mass Housing Partnership lends its name to a report, the report is gospel and not subject to rational evaluation. The Globe mantra continues to be towns are bad, zoning is bad. Time for the Globe and Mass Housing Partnership to step up and look at what is being done for housing at the local level. Perhaps the Globe and Mass Housing Partnership should look at the Affordable Housing Strategies: Regional "Best Practices" Toolkit by the Cape Cod Commission. It is time for the Globe to start focusing on the positive things communities are doing to promote housing options, rather than continuously pointing out their perception of the problem. The tools are there to promote creative housing opportunities. They are not being taken advantage of.

Local zoning did not hold back the last economic cycle. Local zoning is not the cause of the current bust. Zoning provides tools to guide development in a fashion that ensures community compatibility. If we have learned anything in the past 30 years it is that the "projects" (like Cabrini Green) do not work. Housing choices must fit into a community setting. The Cape Cod Commission report illustrates what communities are doing to ensure a good fit.

Personal Thoughts on the Land Use Partnership Act – Part 4 – Transfer of Development Rights and Cluster Development

8) Transfer of development rights

The fourth paragraph of Section 9 of Chapter 40A is modified as follows:

Zoning ordinances or by-laws may provide for special permits authorizing authorize the transfer of development rights of land within or between districts a city or town, or within two or more cities and towns that have adopted complementary ordinances or by-laws. Such authorization may be by special permit or by other methods, including, but not limited to, the applicable provisions of sections 81K to 81GG, inclusive, of chapter 41, and in accordance with a planning board’s rules and regulations governing subdivision control. Such Zoning ordinances or by-laws may shall include incentives such as increases in density of population, intensity of use, amount of floor space or percentage of lot coverage, that encourage the transfer of development rights in a manner that protect open space, preserve farmland, promote housing for persons of low and moderate income or further other community interests.

This section is only a modest change to the existing statute. It allows for cross community transfers of development rights, something that is considered within the Cape Cod Commission’s Regional Policy Plan. The changes also extend the provisions of transfers of development rights to the Subdivision Control Act. I am less clear on why that is necessary. Zoning governs land use densities, lot sizes, etc. So, I would think that if zoning made particular provisions for a change in density and lot sizes for a TDR program, the Subdivision Control Act would allow for such implementation of the new zoning provisions.

I have not concerns with TDR’s. I am not sure how communities will address the tax implications of cross border transfers of development, but this is not a mandatory requirement. I am more concerned with starting to interweave the Zoning Act and the Subdivision Control Act. This should not be done piece-meal. There are areas of conflict between the two acts that need to be addressed. A piece-meal approach to addressing cross concerns may lead to new legal interpretations of other glaring issue areas.

9) Cluster development

The seventh paragraph of Section 9 of Chapter 40A is modified as follows:

“Cluster development” means a residential development in which reduced dimensional requirements allow the developed areas to be concentrated in order to preserve open land elsewhere on the plot. the buildings and accessory uses are clustered together into one or more groups separated from adjacent property and other groups within the development by intervening open land. A cluster development shall be permitted only on a plot of land of such minimum size as a zoning ordinance or by-law may specify which is divided into building lots with dimensional control, density and use restrictions of such building lots varying from those otherwise permitted by the ordinance or by-law and open land. Such open land when added to the building lots shall be at least equal in area to the land area required by the ordinance or by-law for the total number of units or buildings contemplated in the development. Such open land may be situated to promote and protect maximum solar access within the development. Zoning ordinances or by-laws may authorize cluster development for development proceeding as-of-right or otherwise. Unless such open land is subject to a conservation restriction or agricultural preservation restriction, such open land shall be required to either be conveyed to the city or town and accepted by it for park or open space use, or be conveyed to a non-profit organization the principal purpose of which is the conservation of open space, agricultural land, historic resources, or watersheds, or to be conveyed to a corporation or trust owned or to be owned by the owners of lots or residential units within the plot. If such a corporation or trust is utilized, ownership thereof shall pass with conveyances of the lots or residential units. In any case where such land is not conveyed to the city or town or a non-profit organization as described above, a restriction shall be recorded providing that such land shall be preserved accordingly and not be built for residential use or developed for accessory uses such as parking or roadway.

The changes to this section seem to be fairly straight-forward. The changes actually take out some regulatory standards that should not be within the state law. Overall, the changes are appropriate. However, the changes could be improved upon with a simple change and that would be to remove any restrictions such as the term “on the plot” that restricts the land area under consideration to a single tract of contiguous land. Such a change would open up the concept that a cluster could include land that is separate from the site proposed to be developed. Perhaps a more important site for preservation – a farm for instance could be coupled in a cluster even though not contiguous. I know that this is part of the consideration of the Transfer of Development Rights concept in Section 8 of the proposal, but the Cluster provisions should be made consistent. It may actually be easier to sell the concept as a cluster than to sell transfer of development rights to a community or land owner.

What Should We Focus On As Planners?

Found an interesting article in the January 4, 2009 Boston Globe. The article "How The City Hurts Your Brain" raises a number of questions as to where the balance should lie in our planning efforts. I do not want to say it goes so far as to challenge the concepts of New Urbanism, but it clearly says we need to consider far more than simply density as we discuss the future of Planning.

Much of current planning theory, New Urbanism, Smart Growth, Form Based Zoning, all focus on the built environment. Density and the mixture of built uses are dominant. The article calls this into question. We need to remember the importance of the natural environment in planning for the built environment. Yards and trees are as important as sidewalks and parking spaces. We need to remember that people need the ability to unwind and relax. The urban environment offers few opportunities, and, based upon the studies cited, actually runs us down.

Balance, its so important. We have to remember that too rural leaves us with open areas of little value as it is all sliced up for individual yards with their stockade or picket fences. But too urban loses the the trees and all the benefits of nature.

Draft Land Use Partnership Act

I found the following link to the December 8, 2008 version of the Land Use Partnership Act this morning. You can find the document here.

Personal Thoughts on the Land Use Partnership Act – Part 3 Site Plan Review

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.

Draft Land Use Partnership Act 12-08-08 Part 5

Since I am undertaking a review of this proposal, I felt out of fairness, I should provide the full text of the proposal for your consumption. I have not found this version of the proposal posted anywhere on the internet.

II. New framework for local / regional planning

To be inserted as a free-standing series of sections into M.G.L. ch. 41, following Section 133 (current end of chapter)

1) Preamble; statement of the Commonwealth’s land use objectives

Sections A through Z of this chapter shall be known and may be cited as the “Land Use Partnership Act”. The purposes of the act shall be to advance the following land use objectives:[3]

a) Support the revitalization of city and town centers and neighborhoods by promoting development that is compact, conserves land and integrates uses;

b) Support the construction and rehabilitation of homes near jobs, infrastructure and transportation options to meet the needs of people of all abilities, income levels, and household types;

c) Attract businesses and jobs to locations near housing, infrastructure, and transportation options;

d) Protect environmentally sensitive lands, natural resources, agricultural lands, critical habitats, wetlands and water resources, and cultural and historic landscapes;

e) Construct and promote developments, buildings, and infrastructure that conserve natural resources by reducing waste and pollution through efficient use of land, energy and water;

f) Support transportation options that maximize mobility, reduce congestion, conserve fuel and improve air quality;

g) Maximize energy efficiency and renewable energy opportunities to reduce greenhouse gas emissions and consumption of fossil fuels;

h) Promote equitable sharing of the benefits and burdens of development;

i) Make regulatory and permitting processes for development clear, predictable, coordinated, and timely in accordance with smart growth and environmental stewardship; and

j) Support the development and implementation of local and regional plans that have broad public support and are consistent with these purposes.

2) Definitions

“As of right” shall mean that development may proceed under zoning and other local land use regulations without the need for a special permit, variance, amendment, waiver or other discretionary approval. As of right development may be subject to site plan review, as defined in Section 7A of Chapter 40A. If a municipality has issued, at the time of the municipality’s effective date, a special permit that in itself allows new housing units equal to one-half or more of the municipality’s housing target number, and if such special permit remains in effect for at least two years after the municipality’s effective date, then residential development under such special permit which otherwise qualifies hereunder shall also be deemed as of right.

“Certified plan community” shall mean a community for which a community land use plan and implementing regulations have been certified by the applicable regional planning agency, adopted by the municipality, and remain in effect.

“Constructively approved” means deemed approved by the failure of the approving agency to issue a decision or determination within the time prescribed, as it may be extended by written agreement between the applicant and the approving agency; provided that an applicant who seeks approval by reason of the failure of the approving agency to act within such time prescribed, shall so notify the city or town clerk, and parties in interest, in writing within 14 days from the expiration of the time prescribed or extended time, if applicable, of such approval.

“Economic development district” shall mean a zoning district that: (i) permits or allows commercial and/or industrial use, or permits or allows mixed use including commercial and/or industrial use, and (ii) is an eligible location.

“Eligible location” shall mean an area that by virtue of its physical and regulatory suitability for development, the adequacy of transportation and other infrastructure and the compatibility of proximate land uses is, in the determination of the regional planning agency, a suitable location for development of the type contemplated by a community land use plan. Any area that would qualify as an “eligible location” under Chapter 40R of the General Laws shall automatically qualify as an “eligible location” for a residential development district.

“Housing target number” shall mean a number equal to five percent (5%) of the total number of year-round housing units enumerated for the municipality in the latest available United States census[4] as of the date on which the plan was submitted to the regional planning agency.

“Implementing regulations” shall mean the local zoning ordinances or by-laws, subdivision rules and regulations, and other local land use regulations, or amendments thereof, necessary to effectuate the minimum standards for consistency with the Commonwealth’s land use objectives established or required by a certified plan.

“Interagency Planning Board” shall mean a board comprised of the secretary of housing and economic development, the secretary of energy and environmental affairs, and the state permit ombudsman, or their designees, together with a representative designated by the Massachusetts Association of Regional Planning Agencies (the “regional representative”) and a representative designated by the Massachusetts Association of Planning Directors (the “municipal representative”). The state permit ombudsman shall serve as the chair of the board. The board, acting without the participation of the regional representative and the municipal representative, shall have the power to promulgate regulations to effect the purposes of this act.

“Low impact development techniques” shall mean stormwater management techniques that limit off-site stormwater runoff (both peak and non-peak flows) to levels substantially similar to natural hydrology (or, in the case of a redevelopment site, that reduce such flows from pre-existing conditions), by emphasizing decentralized management practices and the protection of on-site natural features.

“Municipality’s effective date” shall mean the date upon which a municipality has adopted certified implementing regulations pursuant to a certified community land use plan.

“Open space residential design” shall mean a process for the cluster development of land, as that term is defined in Section 9 of Chapter 40A, that in addition: (a) requires identification of the significant natural features of the land and concentrates development, by use of reduced dimensional requirements, in order to preserve those natural features; (b) preserves at least fifty percent of the land’s developable area in a natural, scenic or open condition or in agricultural, farming or forest use; and (c) permits the development of a number of new housing units at least equal to the quotient of the land’s developable area divided by the minimum lot area per housing unit required by the zoning ordinance or by-law. For the purposes of this definition, the land’s developable area shall be determined pursuant to: (i) state land use laws and regulations, and (ii) the zoning ordinance or by-law, without regard in either case to the suitability of soils or groundwater for on-site wastewater disposal.

“Other local land use regulations” shall mean all local legislative, regulatory, or other actions which are more restrictive than state requirements, if any, including subdivision and board of health rules, local wetlands ordinances or by-laws, and other local ordinances, by-laws, codes, and regulations.

“Plan” shall mean a community land use plan prepared by the planning board in accordance with Section 3.

“Planning board” shall mean a municipal planning board established or authorized pursuant to Chapter 41, Section 81A of the General Laws.

“Prompt and predictable permitting” shall mean that zoning and other local land use regulations allow development to proceed as of right by means of permitting processes that are designed to result in final decisions on all local permits and approvals in less than 180 days. For commercial and industrial development, local permitting pursuant to Chapter 43D of the General Laws shall also be deemed “prompt and predictable permitting”.

“Regional planning agency” shall mean the regional or district planning commission established pursuant to Chapter 40B of the General Laws for the region within which a municipality is located. The term shall also mean the Martha’s Vineyard Commission, as described in Chapter 831 of the Acts of 1977, and the Cape Cod Commission, as described in Chapter 716 of the Acts of 1989, the Franklin Council of Governments, as described in Chapter __ of the Acts of __, and the Northern Middlesex Council of Governments, as described in Chapter __ of the Acts of __.

“Residential development district” shall mean a zoning district that: (i) permits or allows residential use at a density of not less than four (4) units per acre of developable land for single-family residential use and not less than twelve (12) units per acre of developable land for multi-family residential use, or permits or allows mixed use including residential use at such density, (ii) is in an eligible location, and (iii) does not impose other requirements that add unreasonable costs or otherwise unreasonably impair the economic feasibility of residential development at such density. A zoning district that permits or allows mixed use may qualify as both an economic development district and a residential development district, if the standards for both districts are met. The implementing regulations for any residential development district that permits or allows mixed use shall contain adequate provisions to ensure that any contemplated contribution towards the housing target number to be provided by such district will be achieved.

3) Elements of community land use plan

A planning board may prepare, and from time to time amend or renew, a community land use plan for a municipality, to be submitted to the regional planning agency for certification. The plan shall address at least the following five areas: economic development, housing, open space protection, water management, and energy management.

The plan shall contain:

(a) an overall statement of the land use goals and objectives of the municipality for its future growth and development, including specific reference to each of the five areas;

(b) a description of the zoning and other land use regulation policies that will be used to implement those goals and objectives, including with respect to each of the five areas;

(c) an assessment of the infrastructure improvements needed to support the implementation policies and strategies identified in (b);

(d) an assessment of the plan’s consistency with any applicable existing regional plan or planning guidance;

(e) an overall assessment of the plan’s consistency with the Commonwealth’s land use objectives set forth in Section 1;

(f) an assessment of the plan’s specific compliance with the minimum standards for consistency set forth in Section 5 below; and

(g) a description of the manner and degree of public participation and involvement in the preparation of the plan.

The plan may include materials prepared within the past five years as part of a local planning document, including a master plan prepared pursuant to Chapter 41, Section 81D of the General Laws.

The planning board shall hold at least one public hearing, with two weeks prior notice, for public review of and comment upon the plan, before the plan is submitted to the regional planning agency for certification. After the public hearing, the planning board may recommend to the chief executive officer of the municipality that the plan be submitted to the regional planning agency for certification.

4) Regional planning agency certification and municipal adoption of plan

The chief executive officer of the municipality may, if such action is recommended by the planning board, submit the plan to the regional planning agency for certification. Within 90 days after receiving a submission, the regional planning agency shall determine whether the plan is (a) complete and (b) consistent with the Commonwealth’s land use objectives. A plan shall be determined to be complete if it contains all the elements required in Section 3. A plan shall be determined to be consistent with the Commonwealth’s land use objectives if it satisfies the minimum standards for consistency in accordance with Section 5. If the regional planning agency determines that the plan is complete and consistent with the Commonwealth’s land use objectives, then the agency shall issue a written certification to that effect. If the regional planning agency determines that it is unable to issue such a certification, then the agency shall provide the municipality with a written statement of the reasons for its determination. A municipality may re-submit for certification at any time a modified plan that addresses the issues set forth in the agency’s statement of reasons. If the regional planning agency does not issue a certification or provide a statement of reasons within 90 days after receiving a plan (including a re-submitted plan), then the plan shall be deemed certified.

Following certification by the regional planning agency, the plan may be adopted by the municipality by a simple majority vote of its legislative body.

5) Minimum standards for consistency of plan with the Commonwealth’s land use objectives

A regional planning agency shall determine that a plan is consistent with the Commonwealth’s land use objectives if the plan meets certain minimum standards in the following five areas: economic development, housing, open space protection, water management, and energy management. The minimum standards for consistency shall be set forth in regulations duly promulgated by the Interagency Planning Board. Notwithstanding the foregoing, for plans submitted for certification within the first five years of the effective date of passage of this act, a determination of consistency with the Commonwealth’s land use objectives shall be mandatory if the following minimum standards have been satisfied:

A. The plan establishes prompt and predictable permitting of commercial and/or industrial development within one or more economic development districts. This standard may be waived or modified upon a determination by the regional planning agency that adequate alternatives for economic development exist elsewhere in the region and are more appropriately located there.

B. The plan establishes prompt and predictable permitting of residential development within one or more residential development districts that can collectively accommodate, in the determination of the regional planning agency, a number of new housing units (excluding new housing units which are restricted, through zoning or other legal means, as to the number of bedrooms or as to the age of their residents) equal to the housing target number. For the initial certification of a plan, a municipality’s housing target number shall be reduced by the number of new housing units for which building permits were issued within two years prior to the municipality’s effective date, to the extent such building permits were issued within residential development districts for which there was prompt and predictable permitting at the time of building permit issuance. This standard may be waived or modified upon a determination by the regional planning agency that the lack of adequate water supply and/or wastewater infrastructure within the municipality prevents full compliance with this standard, provided that the municipality may be required to instead participate in any regional housing plan established by the regional planning agency.

C. The plan requires that, for any zoning district that requires a minimum lot area of forty thousand square feet or more for single-family residential development, development of five or more new housing units utilize open space residential design, except upon a determination that open space residential design is not feasible.

D. The plan requires (through zoning ordinances or by-laws) all development that disturbs more than one acre of land, including as of right development, utilize low impact development techniques.

E. The plan establishes prompt and predictable permitting of (i) renewable or alternative energy generating facilities, (ii) renewable or alternative energy research and development facilities, or (iii) renewable or alternative energy manufacturing facilities, within one or more zoning districts that are eligible locations.

6) Certification and adoption of implementing regulations

(a) Prior to or following municipal adoption of a certified plan, the municipality may prepare implementing regulations. To assist municipalities in this effort, the regulations to be promulgated by the Interagency Planning Board hereunder shall include at least one model provision for implementing regulations for open space residential design, low impact development, and clean energy generation/cogeneration facilities that would satisfy the standards hereof.

(b) The chief executive officer of the municipality may submit the implementing regulations to the regional planning agency for certification. Within 90 days of receiving a submission, the regional planning agency shall determine whether the implementing regulations are consistent with the certified plan. The implementing regulations shall be deemed consistent with the certified plan if they effectuate the minimum standards for consistency with the Commonwealth’s land use objectives established or required by the certified plan. If the regional planning agency determines that the implementing regulations are consistent with the certified plan, then the agency shall issue a written certification to that effect. If the regional planning agency determines that it is unable to issue such a certification, then the agency shall provide the municipality with a written statement of the reasons for its determination. A municipality may re-submit for certification at any time modified implementing regulations that address the issues set forth in the agency’s statement of reasons. If the regional planning agency does not issue a certification or provide a statement of reasons within 90 days after receiving implementing regulations (including re-submitted implementing regulations), then the implementing regulations shall be deemed certified. The municipality shall have the option of submitting its implementing regulations together with its submission of its community land use plan pursuant to Section 4, in which case the regional planning agency shall review both the plan and the implementing regulations within the same 90 day period.

(c) Following certification by the regional planning agency, the implementing regulations may be adopted by the municipality by a simple majority vote of its legislative body. On the date of receipt by the regional planning agency of proof of adoption of the certified implementing regulations pursuant to a certified plan, a municipality shall be deemed a “certified plan community”. Such date shall be deemed the “municipality’s effective date”.

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.

(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.

(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.

(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.

8) Review of certification by regional planning agency

Any certification or determination of non-certification by a regional planning agency with respect to a plan or implementing regulations or a material amendment of either is subject to review by the Interagency Planning Board. The Interagency Planning Board may, upon the request of the subject municipality or upon its own motion, review any such decision in an informal, non-adjudicatory proceeding, may request information from any third party and may modify or reverse such decision if the same does not comply with the provisions hereof.

If a municipality provides written notice to the Interagency Planning Board of the certification by a regional planning agency of a plan or implementing regulations or a material amendment of either (including a deemed certification resulting from a regional planning agency’s failure to act), then the board may only review such certification if it commences such review with 60 days of such certification.

The Interagency Planning Board may through regulation establish a procedure for reviewing and approving guidelines prepared by regional planning agencies to be used in the certification of plans, implementing regulations and material amendments. If a certification or determination of non-certification under review by the Interagency Planning Board has been issued by the regional planning agency based upon an approved guideline, then the board may only modify or reverse such decision for inconsistency with the approved guideline.

9) Expiration and renewal of certified plan community status; amendments.

(a) A municipality’s status as a certified plan community shall expire ten years after the municipality’s effective date, unless a renewal plan, together with any necessary implementing regulations, is prepared, certified, and adopted in accordance with the provisions hereof prior to such date. Each such renewal plan shall also expire in ten years.

(b) From and after a municipality’s effective date, any material amendment to a certified plan or to any certified implementing regulations shall be prepared, certified and adopted in accordance with the provisions hereof. The Interagency Planning Board may by regulation define categories of amendments that shall be deemed non-material.

10) Priority for Infrastructure Funding

The executive office of housing and economic development, the executive office of energy and environmental affairs, the executive office of transportation, and the executive office of administration and finance shall, when awarding discretionary funds for local infrastructure improvements, give priority consideration to infrastructure improvements identified in the certified plans of certified plan communities.

11) Consideration under State Programs

State agencies responsible for regulatory and/or capital spending programs that have a material effect on land use and development within certified plan communities shall take into account the land use goals, objectives and policies of such communities, as set forth in their certified community land use plans, in administering such programs.

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.

“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.

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.

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.

IV. STATE ASSISTANCE FOR PLANNING

There is hereby appropriated from the General Fund, subject to the provisions of law regulating the disbursement of public funds, the sum of $1,000,000 for technical assistance grants to municipalities for the preparation of plans and implementing regulations and the sum of $500,000 for technical assistance grants to regional planning agencies for the certification of plans and implementing regulations and the preparation of guidelines therefor, such sums to be administered by the Interagency Planning Board. Priority for the municipal grants shall be given to those municipalities identified by the applicable regional planning agencies as being most likely to prepare and adopt certified plans and implementing regulations, if provided with financial assistance.

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[1] Adapted from California enabling act for form-based zoning.

[2] Adapted from CPA2.

[3] Adapted from the Commonwealth’s Sustainable Development Principles.

[4] Definition is intended to allow RPAs to rely upon the baseline number for total housing units in DHCD’s subsidized housing inventory.

Draft Land Use Partnership Act 12-08-08 Part 4

Since I am undertaking a review of this proposal, I felt out of fairness, I should provide the full text of the proposal for your consumption. I have not found this version of the proposal posted anywhere on the internet.

I 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 maintentance 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.

2) Limitations on appeals.

Modify the first paragraph of Section 81BB of Chapter 41 as follows:

Section 81BB. Any person, whether or not previously a party to the proceedings, or any municipal officer or board, aggrieved by a decision of a board of appeals under section eighty-one Y, or by any decision of a planning board concerning a plan of a subdivision of land, or by the failure of such a board to take final action concerning such a plan within the required time, may appeal to the superior court for the county in which said land is situated or to the land court; provided, that such appeal is entered within twenty days after such decision has been recorded in the office of the city or town clerk or within twenty days after the expiration of the required time as aforesaid, as the case may be, and notice of such appeal is given to such city or town clerk so as to be received within such twenty days. The court shall hear all pertinent evidence and determine the facts, and upon the facts so determined, shall annul such decision if found to exceed the authority of such board, or make such other decree as justice and equity may require. The foregoing remedy shall be exclusive, but the parties shall have all rights of appeal and exceptions as in other equity cases. A complaint by a plaintiff challenging a subdivision approval under this section shall allege the specific reasons why the subdivision fails to satisfy the requirements of the board’s rules and regulations or other applicable law and allege specific facts establishing how the plaintiff is aggrieved by such decision. The board’s decision in such a case shall be affirmed unless the court concludes the board abused its discretion in approving the subdivision.

Draft Land Use Partnership Act 12-08-08 Part 3

Since I am undertaking a review of this proposal, I felt out of fairness, I should provide the full text of the proposal for your consumption. I have not found this version of the proposal posted anywhere on the internet.

IA Sections 10 - 11

10) Duration of special permits

Modify the fourteenth paragraph of Section 9 of Chapter 40A as follows:

Zoning ordinances or by-laws shall provide that a special permit granted under this section shall lapse within a specified period of time, not lessmore than two years from the date of the filing of such approval with the city or town clerk, which shall not include such time required to pursue or await the determination of an appeal referred to in section seventeen, from the grant thereof, if a substantial use thereof has not sooner commenced except for good cause or, in the case of permit for construction, if or construction has not yet begun by such date, except as extended for good cause by the permit granting authority. Such extension shall not include such time required to pursue or await the determination of an appeal referred to in section seventeen. The aforesaid minimum period of two years may, by ordinance or by-law, be increased to a longer period.

11) Development impact fees

The following new Section 9D is inserted into chapter 40A:[2]

40A:9D. Development Impact Fee

(a) Authority

(1) In addition to its home rule authority to impose a development impact fee, a city or town may adopt a local ordinance or by-law under this section that requires the payment of a development impact fee as a condition of any permit or approval otherwise required for any proposed development within the scope of this section, and having development impacts as defined in the ordinance or by-law. The development impact fee may be imposed only on construction, enlargement, expansion, substantial rehabilitation, or change of use of a development. The development impact fee shall be used solely for the purposes of defraying the costs of capital infrastructure facilities to be provided or paid for by the city or town and which are caused by and necessary to support or compensate for the proposed development. Such capital infrastructure facilities may include the costs related to the provision of equipment, facilities, or studies associated with the following: water supply; sewers; storm water management and treatment; pollution abatement; solid waste processing and disposal; traffic mitigation; roadways, transit, bicycle and pedestrian facilities, and other public transportation facilities; and affordable housing; costs related to facilities such as schools, public safety facilities, and municipal offices shall be excluded.

(2) Nothing in this section shall prohibit a city or town from imposing other fees or requirements for mitigation of development impacts which it may otherwise impose under state or local law and that are consistent with the constitution and laws of the Commonwealth; except that the imposition of a development impact fee as provided in this Section 9D shall be the exclusive means by which a municipality may require the payment or performance of off-site mitigation for development impacts of the proposed use of land or structures permitted or allowed as of right under its zoning ordinance.

(b) Limitations

(1) No development impact fee under this section shall be imposed upon any dwelling unit, regardless of how created or permitted, which is subject to a restriction on sale price or rent under the provisions of G.L. c. 184 as amended ensuring that the unit will remain affordable for a period of at least 30 years to households at or below the area median income as most recently defined by the United States Department of Housing and Urban Development or successor agency, or any other dwelling unit permitted under G.L. c. 40B.

(2) The fee shall not be expended for personnel costs, normal operation and maintenance costs, or to remedy deficiencies in existing facilities, except where such deficiencies are exacerbated by the new development, in which case the fee may be assessed only in proportion to the deficiency so exacerbated.

(c) Requirements

(1) Prior to the imposition of development impact fees under this section, a city or town shall complete a study that: (i) analyzes existing capital improvement plans, or the facilities element of a plan adopted under section 81D of chapter 41, or the infrastructure improvements element of a community land use plan adopted under Section [4] of Chapter 41; (ii) estimates future development based on the then current zoning ordinance or by-law; (iii) assesses the impacts related to such development; (iv) determines the need for capital infrastructure facilities required to address the impacts of the estimated development including excess facility capacity, if any, currently planned to accommodate future development; (v) develops cost projections for the needed capital infrastructure facilities and documents costs of existing facilities with planned excess capacity; and (vi) establishes the amount of any development impact fee authorized under this section in accordance with a methodology determined pursuant to the study. The study shall be updated periodically to reflect actual development activity, actual costs of infrastructure improvements completed or underway, plan changes, or amendments to the zoning ordinance or by-law.

(2) A development impact fee shall have a rational nexus to, and shall be roughly proportionate to, the impacts created by the development as determined by the study described in (c)(1) above evaluating said impacts, and it shall be applied to affected development projects in a consistent manner.

(3) The purposes for which the fee is expended shall reasonably benefit the proposed development.

(4) The fee may not be assessed more than once for the same impact, nor may the fee be assessed for impacts, or portions thereof, offset by other dedicated means, including state or federal grants or contributions or other mitigation commitments made by the applicant undertaking the development.

(d) Administration

(1) The ordinance or by-law may provide for a waiver or reduction of the development impact fee for any development that furthers an overriding public purpose as set forth in a plan adopted by the city or town under section 81D of chapter 41.

(2) If the proposed development is located in more than one municipality, the impact fee shall be apportioned among the municipalities in accordance with the land area or other equitable measure of the impacts of the proposed development in each city or town.

(3) Any development impact fee assessed under this section shall be deposited to a separate, interest bearing account in the city or town in which the proposed development is located. Unless subject to section (d)(4) below, no development impact fee shall be paid to the general treasury or used as general revenues of the city or town subject to the provisions of section 53 of chapter 44 of the General Laws.

(4) Any funds not expended or encumbered by the end of the calendar quarter immediately following 5 years from the date the development impact fee was paid shall, upon request of the applicant or its assigns, be returned with interest provided that an application for a refund prescribed in the ordinance or by-law has been submitted within one 180 calendar days prior to the expiration of the 5 year period. If no application for refund is received by the city or town within said period, any funds not expended or encumbered by the end of the calendar quarter shall then revert to and become part of the general fund under section 53 of chapter 44. In the event of any disagreement relative to who shall receive the refund, the city or town may retain said development impact fee pending instructions given in writing by the parties involved or by a court of competent jurisdiction.

Draft Land Use Partnership Act 12-08-08 Part 2

Since I am undertaking a review of this proposal, I felt out of fairness, I should provide the full text of the proposal for your consumption. I have not found this version of the proposal posted anywhere on the internet.

I A Sections 7 - 9

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.

(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.

(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.

(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.

(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.

(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.

(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.

8) Transfer of development rights

The fourth paragraph of Section 9 of Chapter 40A is modified as follows:

Zoning ordinances or by-laws may provide for special permits authorizing authorize the transfer of development rights of land within or between districts a city or town, or within two or more cities and towns that have adopted complementary ordinances or by-laws. Such authorization may be by special permit or by other methods, including, but not limited to, the applicable provisions of sections 81K to 81GG, inclusive, of chapter 41, and in accordance with a planning board’s rules and regulations governing subdivision control. Such Zoning ordinances or by-laws may shall include incentives such as increases in density of population, intensity of use, amount of floor space or percentage of lot coverage, that encourage the transfer of development rights in a manner that protect open space, preserve farmland, promote housing for persons of low and moderate income or further other community interests.

9) Cluster development

The seventh paragraph of Section 9 of Chapter 40A is modified as follows:

“Cluster development” means a residential development in which reduced dimensional requirements allow the developed areas to be concentrated in order to preserve open land elsewhere on the plot. the buildings and accessory uses are clustered together into one or more groups separated from adjacent property and other groups within the development by intervening open land. A cluster development shall be permitted only on a plot of land of such minimum size as a zoning ordinance or by-law may specify which is divided into building lots with dimensional control, density and use restrictions of such building lots varying from those otherwise permitted by the ordinance or by-law and open land. Such open land when added to the building lots shall be at least equal in area to the land area required by the ordinance or by-law for the total number of units or buildings contemplated in the development. Such open land may be situated to promote and protect maximum solar access within the development. Zoning ordinances or by-laws may authorize cluster development for development proceeding as-of-right or otherwise. Unless such open land is subject to a conservation restriction or agricultural preservation restriction, such open land shall be required to either be conveyed to the city or town and accepted by it for park or open space use, or be conveyed to a non-profit organization the principal purpose of which is the conservation of open space, agricultural land, historic resources, or watersheds, or to be conveyed to a corporation or trust owned or to be owned by the owners of lots or residential units within the plot. If such a corporation or trust is utilized, ownership thereof shall pass with conveyances of the lots or residential units. In any case where such land is not conveyed to the city or town or a non-profit organization as described above, a restriction shall be recorded providing that such land shall be preserved accordingly and not be built for residential use or developed for accessory uses such as parking or roadway.