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Thursday, March 10, 2016

SENATE 122 IS NOT AS SIMPLE AS IT MAY FIRST APPEAR


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

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