Robert Ritchie

On Sept. 15 the Joint Committee on Community Development and Small Business held a hearing on this session’s comprehensive zoning reform bill (S.122). The bill’s keys sponsors are Sen. Dan Wolf (D-Harwich) and Rep. Steve Kulik (D-1st Franklin), who are joined in supporting the bill by 57 other co-sponsors in the House and Senate. A broad coalition of professional planners, municipal attor neys, municipal and regional public officials, environmental and conservation organizations, housing advocates and public health professionals from all parts of the state testified at the hearing overwhelmingly in favor of the bill.

Although there are other zoning bills that will occupy the attentions of the Legislature this session dealing with zoning and land use, S.122 represents the most broadly supported and equitably balanced, comprehensive zoning measure making its way through the legislative process this session.

A bill with substantially the same provisions was favorably reported out last session by the Joint Committee on Municipalities and Regional Government, but the session came to a close before the bill could be acted upon.

S.122 reflects the evolution of the zoning reform efforts of prior years, but is more finely tuned to re-balance vested rights with vested interests and to eliminate the inequities of current law for landowners, developers, local government regulators, and the general public. Among the provisions that expand the realistic expectations of landowners and municipalities are the following:

• Provides for more reasonably obtainable and longer-lasting vesting provisions for building permits and special permits; resets the default vote required to a simple majority for special permits; and extends the duration of a special permit or building permit to a minimum of three years or two years, respectively.
• Provides cities and towns with the authority to reduce the quantum of vote for zoning changes to between a simple majority and the current two-thirds requirement.
• Redefines “variance” to allow a zoning board to grant them subject to strict, but less Draconian, standards and criteria. Extends effective duration of variance from one to two years before lapse if not used; permissible extension interval increases from six months to one year.
• Equitably resets the vesting date for special permits and building permits to the date on which they are applied for rather than the date on which they are issued, and similarly pegs the vesting date for subdivisions at the date the definitive plan is filed rather than the filing of a preliminary plan. Like the vesting for building and special permits the protection for subdivisions would be for the plan, not the land shown on the plan, altering the scope of vesting under the Massachusetts Broken Stone decision.
• Eliminates the three-year use-only protection accorded to approval not required plans, but provides an optional alternative for streamlined review of “minor subdivisions” of up to six lots that would provide the same range of vested rights accorded to full subdivisions.
• Achieves prompt and predictable outcomes by placing clear boundaries around well-defined development impact fees and by providing for consolidated permitting by multiple local boards.
• Elevates “site plan review” to statutory status to achieve statewide consistency in its use. Sets limits on board review time and payment for off-site mitigation. Requires time-saving consolidation of site  plan review and special permit process before a single board when both are required.

If reported out favorably Community Development and Small Business, the bill will likely make its way to the Senate Ways and Means Committee before reaching the Senate floor for a vote. If approved by the full Senate, the legislation will be considered by the House and may be further vetted by House Ways and Means Committee before the full House acts. Once approved by the House, both branches must then enact the measure and, assuming no conference committee is necessary, the enacted bill will arrive on the governor’s desk for signature.

S.122 was designed to make planning and development more predictable. The provisions of S.122 have been reviewed and endorsed by a wide range of constituencies who advocate for the elimination of broken, unworkable provisions of the current law and the introduction of land use laws that are clear, flexible and fair. If enacted, it would be the first comprehensive statutory change since 1975 to bring Massachusetts land use law into sync with contemporary national standards.

This article first appeared in the Sept.-Oct. 2015 issue of REBA News, the newspaper of the Real Estate Bar Association for Massachusetts; it has been updated since it was originally published to reflect the most recent activity on the bill. 

Robert Ritchie served as municipal law unit director for Attorneys General Harshbarger, Reilly and Coakley, and before that served for 15 years as town counsel for the town of Amherst. He has served on the board of directors (and as president) of Massachusetts Municipal Lawyers Association and the International Municipal Lawyers Association. Since 1997, he has served on the Zoning Reform Working Group. He recently retired as general counsel for the Massachusetts Department of Agricultural Resources.