Bob Ruzzo
Are these the shadows of the things that will be or are they shadows of things that May be, only?”
Charles Dickens,
A Christmas Carol
The
panel, moderated by former REBA president Kathleen M. O’Donnell, featured two
knowledgeable presenters, Michel Wigney and Shawn McCormack, who blazed a path
through the (extra-legislative) development of site plan review, beginning with
its sanctioning by the Supreme Judicial Court in the Y.D. Dugout. Inc.
case, right on through to an assessment of difficulties with the present
application of site plan review practices in various municipalities. In keeping
with today’s chosen theme, let’s refer to these two story elements as the ghost
of Site Plan Reviews Past and the ghost of Site Plan Reviews Present,
respectively; and let’s just say the entire presentation scared the dickens out
of the Housing Watch.
Why?
Well as land use practitioners are aware, the cities and towns of the
commonwealth are painfully unique. Even at the peak of his influence, Chairman
Mao only expressed a wish to let one hundred flowers bloom. Because site plan
review lacks any anchor in Chapter 40A, we face the potential for as many three
hundred and fifty variations on the site plan review theme. At first, one might
be comforted by the notion that site plan review, when properly applied, is
intended to constitute a “conformance review” of a structure allowed “as of
right.” Properly utilized, it may have great value as a comment gathering
exercise through which designs can be critiqued and then refined. Yet in
practice, alarming disparities have arisen over such questions as: (1) whether
a planning board may impose stricter dimensional requirements through site plan
review; (2) just what the role of abutters is during a site plan review process;
(3) how long the review period may extend; (4) what the standard of review is;
and (5) most agonizingly, how to appeal a negative site plan review
determination if the ordinance is silent on that issue.
That
last point bears repeating. If a site plan review ordinance does not specify
any method for appeal, the accepted practice today is to obtain a negative
determination from the building inspector and then to appeal that negative determination
to the appropriate permit granting authority. Only when the inspector’s denial
is confirmed by such a body should one proceed with a court appeal.
Think
about that for a moment. If a site plan review resulted in a negative
determination, a proponent is highly unlikely to have taken the step of
preparing plans and specifications suitable for obtaining a building permit.
Yet the building inspector reviewing such a negative determination would arguably
be justified in citing the lack of plans and specifications as an independent ground
for denying a building permit. And that’s not even the scariest thing about
site plan review.
As
in the Dickens’ classic, the truly scary specter in all of this is the ghost of
Site Plan Reviews Yet to Come. After all, the recently enacted new Section 3A
of Chapter 40A purports to bring “as of right” multifamily housing districts to
175 “MBTA communities” subject only to “site plan review.” If this new
legislation holds the key to a better housing future for Massachusetts, we need
to start paying a lot of attention to the site plan review requirement now.
The
final guidance for Section 3A deals gives “Site Plan Review” only a cursory
mention. The present-day realities (nightmares?) reviewed by counsellors Wigney
and McCormack are not addressed in any detail, although the guidelines do state
that site plan review “should not unreasonably delay a project or make it
infeasible or impractical to proceed with a project.” The lack of clarity about appeal procedures and
the absence of a time limit on the duration of site plan review is plainly
inadequate. As the late judge Rudy Kass wrote in the Milton Commons
decision back in 1982, “Delay is often as effective as denial” (see, note 2).
As
a means of addressing the ample real-life challenges presented by working with
site plan review in its current unwieldy form, the panelists suggested that a
legislative addition to the Zoning Act could inject some much-needed uniformity.
Ordinarily, the Housing Watch would caution against relying on a
legislative solution any time soon. But in this case, the spirits may be able
to do their work all in one session.
That’s
because the communities seeking to comply with Section 3A will need to submit a
compliance package to the Department of Housing and Community Development
(DHCD). Included in that submission will be the text of their actual ordinance
or by-law. DHCD still has time before the first submission deadline (December,
2023) to provide model provisions for site plan review addressing appeals, the standard
of review, timing, and other procedural issues. Circulating such guidance early
would prevent the inevitable last-minute frenzy that will accompany the
deadline. Such guidance could also serve as a “first draft” for incorporating a
new provision in Chapter 40A addressing site plan review as a whole.
Why
that sounds distinctly like optimism! Well, as our friend Ebenezer once
inquired: “Spirit…Why show me this, if I am past all hope?
Co-chair
of the REBA affordable housing section, Bob Ruzzo is a former Massachusetts
Deputy Secretary of Transportation. He also served as the Deputy Director/Chief
Operating Officer at both MassHousing and MassDevelopment. His column, “The Housing Watch…” will be a
regular feature in REBA News and on the REBA Blog He can be reached at
bob@bobruzzo.com. The views expressed are solely those of the author.
