Massachusetts Lawmakers Tackle Zoning Reform

June 2013Advisories

Massachusetts statutes governing municipal zoning, subdivision control, and planning have not been substantially updated in over 35 years. Efforts to achieve comprehensive zoning reform have stalled in the state legislature during the past two sessions due to deep-rooted divisions surrounding the issue. The Joint Committee on Municipalities and Regional Government recently held a public hearing on the current zoning reform bill that appears to offer something for everyone. Lawmakers consulted with municipal representatives, real estate leaders, environmental advocates, and planning organizations in an effort to craft zoning legislation with broad appeal. If passed, the new law will change the way that real estate developers and municipalities conduct business in Massachusetts.

The bill, "An Act Promoting the Planning and Development of Sustainable Communities," proposes many significant changes. Among the changes are the following:

  • Development Impact Fees. To reduce the lack of structure and resulting uncertainty concerning mitigation fees for large development projects, the bill authorizes municipalities to impose impact fees on construction, enlargement, expansion, substantial rehabilitation, or change of use projects that result in a net increase of demand on public capital facilities. The amount of impact fees would be roughly proportionate to the impacts created by the project, to be established in a study conducted by the municipality. Affordable housing developments would be exempt.
  • Permit Streamlining. The bill proposes a consolidated permitting process for larger, complex projects. The process would require an applicant to file a Concurrent Application with the town clerk. All relevant boards would meet at the outset of project review and would receive the same common information. Though all bodies would render independent decisions, inconsistent approval periods and overlapping or conflicting conditions would be discouraged.
  • Vested Development Rights. The bill would eliminate the practice of allowing a zoning freeze to vest when the developer files a preliminary subdivision plan prior to publication of notice of the public hearing on a proposed zoning change. Vesting would instead occur when an applicant files a definitive plan. The bill would also standardize the approach for acquiring vested rights for building permits and special permits, and eliminate zoning freeze protections for “approval not required” subdivisions.
  • Sustainable Zoning Incentives. To encourage municipalities to plan, zone, and invest in a more sustainable pattern, the bill would grant additional regulatory and fiscal resources to municipalities that opt to implement zoning regulations that meet the Planning Ahead for Growth Act program criteria, as established in the bill. Such local governments would receive preference for state discretionary funds and grants and priority for state infrastructure investments, and would be authorized to enter into development agreements, be allowed enhanced assessment of impact fees, and be approved to adopt natural resource protection zoning.
  • Other Changes. The bill would also explicitly authorize inclusionary zoning (which many municipalities have adopted without any statutory foundation), replace the “approval not required” subdivision with an expedited “minor subdivision” process, allow a simple majority vote for amendments to local zoning ordinances rather than the 2/3 currently required, establish clear guidelines for granting variances, and formalize a land use dispute resolution process.
  • A complete copy of the pending legislation can be found here.       

Lawmakers hope that these changes will increase predictability, streamline permitting processes, clarify areas of legal ambiguity, and encourage development patterns that support economic development, natural resource preservation, and an increased supply of affordable housing.

The hearing testimony indicates that even those who oppose the bill agree that change is needed. At the recent hearing, a representative for Home Builders and Remodelers Association of Massachusetts was the only person to speak in opposition to the bill on the grounds that it is too vague and does not encourage higher-density housing development. While acknowledging that the bill is not perfect, the many people who spoke in favor stated that the bill is a dramatic improvement over the antiquated zoning system that exists now, and may provide more clarity, predictability and consistency to municipalities, residents and developers. However, it is important to note that the bill has no provision aimed at reducing substantial potential delays caused by appeals of zoning and related approvals, a very significant issue for the real estate industry.

Goulston & Storrs continues to follow developments regarding this legislation. For questions about the information contained in this advisory, please contact your usual Goulston & Storrs attorney or the attorneys listed below.

Matthew J. Kiefer
(617) 574-6597
[email protected]

Steven Schwartz
(617) 574-4147
[email protected]

This advisory should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and any specific legal questions you may have.

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