• The American Planning Association lists Massachusetts as one ofthe states with the most outdated land-use laws.• Massachusetts alone allows unlimited creation of building lotsalong substandard roads without meaningful review (ANR).• Massachusetts provides the earliest, broadest, and most persistent“grandfathering” protections in the nation.• Unlike the majority of the states, Massachusetts does not requireconsistency between master plans and land use regulations.• Many innovative planning tools available in other states are notused in Massachusetts (e.g., impact fees, agricultural zoning).• Old, outdated zoning is tough to change because of the uniquestatutory requirement for a two-thirds vote.Did you know?
Development Impact Fees• Approximately 60% of alldevelopment in the United States issubject to an impact fee to offsetthe municipal capital costs ofgrowth.• Massachusetts communities aregenerally unable to levy impactfees.
Grandfathering (aka, vested rights)(or, how to avoid any local zoning change):1. Submit a simple preliminary subdivision planbefore the zoning vote (zoning freeze begins).2. Follow it with a definitive plan within 7 months.3. Obtain approval of the definitive plan.4. Discard the subdivision plan.5. Seek permits to build anything you want under the oldzoning for 8 years thereafter.
ConsistencyThe majority of the states, and the five other New England states,require consistency between local planning and land use regulations.Massachusetts does not. This causes master plans to be ignored.?=?
The Zoning Variance• Zoning variance is a universally useful planning tool in U.S.• Variance provides relief valve for overly-restrictive orcontext-inappropriate zoning.• In Massachusetts a legal variance may only be granted ifthe hardship is due to the shape, topography , or soilconditions of the land or structure.• This is a barrier to the use of variances.• Depending on city or town, either few variances aregranted or, ignoring the statute, many indefensible variancesare granted.
The Zoning VoteMassachusetts is the only state to require a two-thirds supermajority vote to adopt or amend local zoning.This is a barrier to new zoning initiatives, most of which areproposed by local governments.
How to avoid any change in allowed land use:1. Submit a simple ANR or lot perimeter planbefore the zoning vote.2. Obtain an ANR endorsement from theplanning board (they must act in 21 days).3. Propose any use allowed under the oldzoning for 3 years thereafter.
Zoning Act, c. 40A(bill section 1)• Entire Zoning Act re-written in outline format w/ headings• Reorganized/consolidated from 17 down to 11 sections•• Enabling language removed• Much of old 40A substance left intact:ExemptionsBoards of appealProceduresEnforcementJudicial review
• Substantive changes:Authority under Home Rule ActPurposesDefinitionsConsistency with planAdditional local powersExclusionary zoning barVested rights (grandfathering)Adoption of zoningSpecial permitsSite plan reviewVariancesInclusionary zoningDevelopment impact feesNatural Resource Protection ZoningLand use dispute avoidanceMediation of land use appeals
Master Plans, c. 41, § 81D(bill section 2)• Master plan section re-written in outline format w/ headings• Requirement to plan reiterated – $11,000,000 for planning• MA Smart Growth Principles integrated into all elements• Required elements (5)Goals and PoliciesHousingNatural Resources and EnergyLand UseImplementation
• Optional elements (6)Economic DevelopmentCultural resourcesOpen Space, Recreation (OSRP qualifies)Services, Capital Facilities (required for impact fees)TransportationPartnership Planning (required for 40U opt-in)• Each element assessed against regional plan (if any)• Adoption by legislative body after public hearing• Optional referral to RPA for certification of plan• Option to adapt/adopt regional plan as town plan
Subdivision Control Law, c. 41(bill sections 3-18)• Selected amendments to the Subdivision Control Law• Provides option to eliminate ANR• Creates “Minor Subdivision”Six or less new lots (on new or existing ways)95-day time limit22 foot wide travelled way• Establishes new method for making minor lot line changes• Allows parks and playgrounds
• Connects Subdivision Control Law to master plan• Requires consistency between subdivision regulations andmaster plan• Establishes new submittal requirements for subdivision plans• Establishes presumption that requirements for traveled waywidths of greater than 24 feet are excessive• Establishes presumption of validity regarding a planning board’sdecision on subdivision plan in event of appeal
Land Use Partnership Act (LUPA)(bill section 19)
Land Use Partnership ActNew Chapter – 40U• New chapter of the General Laws withperformance standards for communities andincentives to “opt-in” to the program• RPA certification process• Partnership Communities
Performance Standards• Prompt and predictable permitting of commercial /industrial within defined district• Prompt and predictable permitting of residentialwithin district, housing target number (5%)• Consistency with Commonwealth objectives• Consistency with regional plan
Minimum Standards of Consistency• Economic development– Prompt and predictable permitting in one or more economic districts• Housing– Prompt and predictable permitting for residential developmentdistrict(s) equal to housing target number (5% of year-round housing )• Open space– Open Space Residential Design required for lot s greater than 1 acre• Water management– Low Impact Development (LID) required for land disturbances overone acre• Energy management– Prompt and predictable permitting for energy generating, research, ormanufacturing
Incentives to Opt-In• Shorter vesting periods– 8 → 3 years for subdivision plans• Natural resource protection zoning (NRPZ) at lowdensities– 10 acres or more per unit in areas of high natural resource value• Broader use of impact fees– Schools, libraries, municipal offices, public safety facilities, affordablehousing• Development agreements– Power to enter into development agreements between an applicant anda city or town
• Regulate rate of development- Limits on annual building permits or approvals of new building lots• Priority for infrastructure funding• Technical assistance from state
CLURPAisSenate Bill #1019Sen. Jamie EldridgeRep. Stephen KulikLearn more at (massmunilaw.org)