ELM -- Environmental League of Massachusetts

MASSACHUSETTS LAND USE REFORM ACT

SUMMARIES OF AMENDMENTS

INTRODUCTION

THE ZONING ACT

IMPROVED METHODS OF MUNICIPAL PLANNING

SUBDIVISION CONTROL LAW

INTRODUCTION

While famous for its strong environmental laws and policies, Massachusetts was recently listed by the American Planning Association as one of the 28 states with the most outdated state land-use laws. While the responsibility for land use planning and regulation rests with each of Massachusetts' 351 cities and towns, the authority to do so effectively is often undermined by confusing and unduly limiting state law. For example, liberal provisions now in the Zoning Act and Subdivision Control Law relating to grandfathering (vested rights) and the creation of roadside building lots (ANR lot plans) are unprecedented in other states, and some zoning law provisions, like those relating to nonconforming uses and structures, are almost impossible to understand. And, unlike most other states, there is no requirement that local zoning laws or subdivision regulations be consistent with an adopted master plan.

The proposed Massachusetts Land Use Reform Act is the first major updating of the Commonwealth's planning, zoning and subdivision control statutes in 27 years. The Act encourages communities to adopt or update their local comprehensive plans and enables them to develop effective land use regulations that are consistent with those plans by giving them the tools they need to better shape their futures. Massachusetts originated the idea of "Smart Growth", which has caught on in many other states. It's time to allow us to grow smart in Massachusetts, too.

THE ZONING ACT

GENERAL PURPOSES OF ZONING ORDINANCES AND BY-LAWS: Section 2
Currently, there is no "purpose" section in the Zoning Act itself. Without a broad purposes section relevant to urban, suburban and rural communities all across the Commonwealth the courts are left to determine for themselves what the purposes of zoning are, and they have tended toward narrow interpretations that limit local authority and discourage communities from making full use of zoning to shape their futures.

This amendment establishes an extensive set of purposes for which local zoning ordinances and By-laws may be adopted and places it in the Zoning Act itself, thereby increasing both the utility of zoning to address the land use challenges of today and the likelihood that innovative planning and zoning methods will be upheld in the courts. (see bill section 1)

EXEMPTIONS FROM ZONING ORDINANCES AND BY-LAWS: Section 3
This section now provides special treatment for certain uses of land significantly beyond what is available in other states. For example, religious and educational uses can locate in any zoning district, unlike commercial uses. Over time, other uses have received similar treatment, such as day care centers, agricultural uses and even solar energy applications. While each of these uses of land is worthy by themselves, their differing treatment in the statute makes it hard for communities to plan for them rationally. Finally, rather than being limited to institutions like schools and churches, some uses and businesses which have some other primary purpose but only a minor educational one currently claim the benefit of this exemption from zoning to locate in residential neighborhoods. This amendment 1) standardizes and clarifies the language in this section, 2) enhances local review capabilities with regard to certain protected uses while also providing new flexibility for these uses, 3) limits the definition of "educational purposes" to public and nonprofit private primary, secondary and higher educational purposes, 4) provides a specific exemption for community residential programs and 5) helps address the issue of mansionization by removing the restriction against regulating the maximum interior area of a single-family residential building. (see bill sections 2,3, and 4)

CONSISTENCY WITH AN ADOPTED PLAN: Section 5
Unlike most other states, in Massachusetts there is no requirement that zoning be consistent with any plan. Because of this disconnect, plans have little weight, zoning is often created in a vacuum, local plans receive limited attention from either communities or the courts, and land use regulation is often unrelated to or even contradictory to the express desires of a community.

This amendment requires consistency between a zoning ordinance or By-law and an adopted plan under section 81D of chapter 41, thereby increasing the relevance of planning and discouraging ad hoc land-use regulation. The requirement for consistency is effective five years after this provision is enacted in the General Laws. (see bill section 5)

APPLICABILITY OF ZONING ORDINANCES AND BY-LAWS: Section 6
Massachusetts has some of the most liberal vested rights (grandfathering) provisions in the nation. For example, to avoid zoning changes made to implement a town's master plan, a land developer merely submits a preliminary subdivision plan (followed within 7 months by a definitive plan) to freeze all zoning in place at the time of such submission for eight years thereafter. This protection applies not only to the subdivision plan itself, but to the land as well, in effect insulating the entire property beyond the reach of the local land use plan for almost a decade. Local boards are often inundated with these hastily drawn preliminary plans at the first mention of a possible change in the zoning by-law. This can result in the accelerated development of land and the perpetuation of the very zoning the community seeks to change. Fear of a flood of plan submissions can discourage town officials from even proposing needed changes to their zoning by-laws, making a duly adopted local plan but a hollow promise. The section is also very difficult to use as it is written in an almost incomprehensible manner.

This amendment completely revises the format, language style and substance of Section 6, often referred to as the "grandfathering" section. The new Section 6 - Applicability - is divided into two logical subsections, 6A - dealing with nonconforming lots, structures and uses, and 6B - dealing with vested rights. The run-on sentence format has been dropped in favor of an outline with labeled subsections for clarity. Some protections have been eliminated, such as the common-lot exemption and the use protection for ANR plans (see ANR, below). Some protections have been modified, such as the dimensional change protection for a pre-existing one or two family residential lot. Others have been substantially overhauled, such as the zoning freeze for the land shown on a subdivision plan. In general, the protections in these two sections have been trimmed back to more basic levels and local discretion has been increased. Cities and towns are free to enhance these protections in their own ordinances and By-laws if they so choose. (see bill section 6)

SITE PLAN REVIEW: Section 7A
Site plan review is a very useful regulatory tool which allows aspects of a development project which are indeed site specific to be addressed and, if appropriate, subject to reasonable conditions. Despite widespread local adoption of zoning provisions to enable site plan review, the Zoning Act is silent on this technique. No framework or standards are provided to guide its administration or appeals from decisions made pursuant to site plan review. Without a state statute, such local by-laws or the decisions under them are exposed to legal challenge without a clear path to resolution, to the resulting detriment of both applicants and the affected citizens.

This amendment establishes a statewide framework under which site plan review may be provided for in local zoning ordinances and By-laws that includes what is covered by such review, which local agencies may undertake it, what standards are used to evaluate the plan, enforceable conditions on approval if any, rulemaking to fill in the gaps, and local discretion in laying out an appeals process. (see bill section 7)

TRANSFER OF DEVELOPMENT RIGHTS (TDR): Section 9D
A recently-enacted amendment to the Zoning Act places limitations upon the local adoption of TDR ordinances or By-laws by requiring that municipalities provide density bonuses to developers utilizing TDR and by specifying the special permit as the only administrative mechanism. The effect, especially of the density bonus, may be to discourage further adoption of this valuable growth management tool.

This amendment serves to memorialize TDR in the statute while removing the current impediments to its implementation. (see bill section 8)

DEVELOPMENT IMPACT FEES: Section 9E
Land development projects create impacts within a community beyond the construction site itself. These include the need for increased investment to create or improve streets, sewers, water supplies, parks, public safety buildings and equipment, schools and similar capital facilities. Other than on Cape Cod, the assessment of impact fees to address the real costs and impacts of land development is not possible in Massachusetts. In part this is due to the lack of any specific legislative reference to impact fees (other than on Cape Cod), and the state court's resultant interpretation that these assessments amount to an illegal form of taxation.

This amendment provides a specific reference to impact fees in the Zoning Act, and establishes some implementation parameters. (see bill sections 9 and 10)

NEGOTIATED SPECIAL PERMITS: Section 9E
Some land uses available as of right under zoning as well as by special permit often involve contentious local disputes and even end up in court. Such uses, their abutters, other parties in interest, and the municipality as a whole might all benefit if an opportunity existed whereby such projects were permitted the option to sit down and work out some of the issues through a "negotiated special permit."

This amendment establishes the negotiated special permit as a tool available to communities in these situations. The process would be assisted by a mediator or other neutral facilitator. It would not supercede conventional zoning rules or special permit review if it did not succeed, but would be designed to explore how to put the land user, and those affected by its use, in a better place than they would be under the then current local zoning. This section would provide municipalities with the framework for such a process if they choose to employ it.

More specifically, it would allow municipalities which desired to do so to create a process by local ordinance or bylaw whereby an applicant for a particular project could, as an alternative to its usual options, seek a negotiated special permit through a process which would allow an initial public hearing and then work with a specially appointed committee during a recess in the process. During this recess, a neutral facilitator or mediator to work with the applicant and various parties in interest to see if an agreed solution could be found which could be brought back to the local special permit granting authority in a timely way for action. If the process did not succeed, or if the ultimate resolution was not more attractive to the applicant than its pre-existing opportunities, then the applicant would not need to go forward. On the other hand, if it were more attractive, the process would be designed to mitigate or otherwise improve a project beyond what would be available if the applicant went through the usual process otherwise available to it, which in some cases might involve limited local review or control. Because providing municipalities a more formal opportunity to avoid disputes involving land uses before they arise is relatively new, this amendment is filed in preliminary form to allow opportunity for enhancements of the details of the basic idea. (see bill section 11)

MEDIATION OF LAND USE APPEALS: Section 17
Section 17 of the Zoning Act provides an avenue for judicial review of decisions made under local zoning; however, no specific provisions are made in the Zoning Act for a mediated resolution of land use appeals.

This amendment introduces the concept of mediation and describes a process which stays the appeal pending the outcome of negotiations between the parties. A mediator is selected as an intermediary and is compensated by the parties. There is no loss of right of appeal should the mediation fail to arrive at an agreement on all of the disputed issues. (see bill section 12)

IMPROVED METHODS OF MUNICIPAL PLANNING

MASTER PLANS: Section 81D
Currently, a planning board is required to make a master plan for the city or town and then adopt that plan with a majority vote of the board. There is no requirement for a public hearing before such vote. Because municipalities may now freely regulate land use through zoning and subdivision control without a requirement for consistency with a master plan, this has not been problematic. However, amendments to the Zoning Act and Subdivision Control Law have been introduced in the Massachusetts Land Use Reform Act which require consistency between a plan made under this section and both the local zoning ordinance or by-law and the subdivision rules and regulations. This elevation in importance of the master plan necessitates greater municipal scrutiny and a more inclusive adoption process.

This amendment adds the requirements for two public hearings and subsequent approval by the local legislative body to the existing majority vote of the planning board in order to adopt a master plan. The planning board is still responsible for making the plan and must vote favorably on the plan before it can come before the local legislative body for final approval. (see bill section 13)

SUBDIVISION CONTROL LAW

APPROVAL NOT REQUIRED PLANS (ANR): Sections 81L,O,P,T,X
Massachusetts is the only state that permits unlimited divisions of land along existing roads which are not required to meet the review requirements applicable to new subdivisions. The creation of these roadside building lots by the filing of "approval not required" (ANR) plans is the dominant form of land development in many towns and effectively determines the future of these communities more so than any municipal land use plan. In rural areas ANR actually encourages sprawl by facilitating development in remote areas with primitive road systems. A community must approve such frontage lots within 21 days and is almost powerless to deny these proposals even if located on substandard roadways. The resulting roadside development has become a dominant and depressing feature of the landscape, causing aesthetic damage, drainage nightmares, and safety hazards from poorly-sited driveway entrances.

This amendment brings Massachusetts into line with the rest of the country by eliminating the statutory exemption for ANR land divisions and establishing that all divisions of land into new lots are subdivisions. In this way development along roadways may be subject to reasonable standards and conditions. A provision has also been added which gives municipalities the discretion to provide expedited review for certain types of minor land divisions which, in their judgment, do not require full review under their subdivision control regulations. (see bill sections 14, 15, 16, 17, 18, 19 and 20)

PURPOSE OF SUBDIVISION CONTROL LAW: Section 81M
The Massachusetts Subdivision Control Law was enacted in 1953, and although this statute has been amended since then, most of its provisions are still the same, including its purpose. The creation of new roadways and building lots (the act of subdivision) influences land use and defines the evolving character of a community more dramatically than almost any other action. Yet, there is no required connection between the Subdivision Control Law and a community's planning process.

This amendment establishes the furtherance of a plan made under section 81D of chapter 41 as a valid purpose of the Subdivision Control Law. (see bill section 21)

DATE OF SUBMISSION: Section 81O
The limited time period within which a local planning board must consider and act upon a development application begins at the time of submission. Currently, a mailed-in plan is deemed submitted upon receipt, even though almost a full month could pass before the next meeting of the planning board (the lost time is especially problematic given the brief review periods allotted in cases of ANR and preliminary subdivision plans). This amendment clarifies that, no matter the method or date of receipt, the date of submission shall be the date of the next regularly-scheduled planning board meeting following receipt at least seven days prior to the meeting, and provided the application is determined to be complete at such meeting. (see bill section 22)

AFFORDABLE HOUSING: Section 81Q
Currently, the Subdivision Control Law explicitly prohibits local subdivision regulations from requiring the inclusion of affordable housing in the design of new residential neighborhoods. However, each new housing development fuels the need for affordable housing for additional police, fire, educational, healthcare, government, construction and other service workers. New growth in market-rate housing reduces a community's overall percentage of affordable housing while consuming even more of the remaining land base available for affordable housing.

This amendment establishes that subdivision regulations may require that residential subdivisions include building lots for the required construction of affordable housing units (up to 15% of the total dwelling units) that will be integrated into the new neighborhoods. The local regulations may allow for the construction of the affordable units off-site, the dedication of land, or payment of funds for the construction of affordable housing in lieu of such units or land. (see bill section 23)

CONSISTENCY WITH AN ADOPTED PLAN: Section 81Q
Even though the creation of new roadway networks and building lots through the subdivision process has a profound effect on the evolving character and fiscal affairs of a community, there is no requirement that subdivision regulations be consistent with any plan.

This amendment requires consistency between subdivision regulations and an adopted plan under section 81D of chapter 41, thereby increasing the relevance of planning and discouraging development regulations in conflict with an adopted plan. The requirement for consistency is effective five years after this provision is enacted in the General Laws. (see bill section 23)

PARKS AND PLAYGROUNDS: Sections 81Q,U
Currently, local subdivision regulations cannot require the incorporation of desirable amenities such parks or playgrounds in the design of new residential neighborhoods without providing compensation to the developer for these open spaces.

This amendment removes the explicit prohibition on requiring dedications of land in subdivisions and establishes that subdivision regulations may require land for parks and playgrounds be incorporated into the design of new residential neighborhoods. (see bill sections 24 and 25)

PERFORMANCE GUARANTEES (Section 81U)
Currently, an applicant for subdivision approval selects, and may vary, the method of performance guarantee. This has compromised a planning board's ability to ensure that subdivision infrastructure is built and completed as proposed, especially if a bonding company suffers a bankruptcy.

This amendment gives a planning board approval authority as to the method(s) of performance guarantee selected. (see bill section 26)