Senate
No. 122 is entitled: “An Act promoting
the planning and development of sustainable communities”. The Bill intends to make major changes to MGL
Chapter 40A and the Subdivision Control Law. There are many facets to the Bill,
but for simplicity’s sake I will focus on one example to illustrate that the
Bill is not as innocuous as it may first appear.
Sections
10, 11 and 12 of the Bill, if read in a vacuum, may appear to be harmless.
However, the changes proposed therein will harm landowners and slow economic
development in the Commonwealth. One purpose of the proposed amendment is to
eliminate the use of Subdivision Plan filings to create a temporary zoning freeze
on a parcel of land. The proposed changes would only freeze the particular
layout of lots shown on a plan filed with the Planning Board from subsequent
changes in the zoning bylaw. The goals espoused by the supporters of the Bill
are contrary to the fundamental fairness principals articulated by the Massachusetts
Courts for decades. The courts have
consistently ruled that landowners have the right to know in advance of the
permitting process the details of the land use regulations that will apply to their
land. Keep in mind that developers typically do not purchase land until all
permits are granted; and the landowners get nothing, or next to nothing, if the
projects are not approved. Meanwhile, the developers are required to prepare and
submit mountains of expensive engineering data and plans to cities or towns to
meet the ever-increasing regulatory requirements for submissions. If developers
face the risk that their efforts can be thwarted by a zoning change half way
through the project engineering or permitting process, they are unlikely to
take the risks in the first place.
The
language that the Bill aims to eliminate is exactly the language that the
Supreme Judicial Court has identified as crucial to the creation of a level
playing field:
“We have opined that the intent of the statute was to
protect landowners and developers ‘from ‘the practice in some communities of
adopting onerous amendments to the zoning by-law after submission of a
preliminary plan which is opposed by segments within the community.’” Massachusetts Broken Stone Co. v. Town of
Weston, 430 Mass. 637, 640-41, 723 N.E.2d 7, 9-10 (2000)
I
have had the unfortunate experience of having town meetings change zoning
bylaws midway through the permitting process. The towns around me commonly
amend zoning bylaws twice a year. There has to be a way to freeze the zoning bylaw
while an applicant is engaged in the permitting process. Otherwise it is like
travelling 65 MPH on the Mass Pike and then getting pulled over and having your
car confiscated and being told that the speed limit and the penalties were
changed during the time you drove from Allston to Weston.
Landowners
and builders need a way to lock in the rules while they generate engineering
and plans, and wind their way through the permitting gauntlet. At the point at
which the engineers are drawing up plans, everyone from brokers to backhoe
operator have knowledge of the proposal (not to mention the relatives of the
sellers, brokers and backhoe operators). Word gets around town very quickly,
and it would be easy for opponents to gather 10 signatures and get a rezoning
article on a town meeting warrant before the application is submitted or the
project approved. And freezing the “plan” provides insufficient protection to
the landowners and builders as (a) the final plan ultimately approved by the
boards can be significantly different that the original plan submitted and (b)
as stated above, once engineered plans are ready for submission word has leaked
about the proposal and the opposition can become organized.
The
above is but one example of how Senate 122 is not as simple as it may first
appear. Please read the Bill, and if you have similar concerns, perhaps you can
express same to your Senator.
Paul
F. Alphen, Esquire
Alphen
& Santos, P.C.
Westford,
MA
