A Massachusetts Senate bill to overhaul state zoning and subdivision laws—along with a brand-new, optional Land Use Partnership Act—promises to improve antiquated land use laws that have evolved piecemeal, by revision and court action, into laws that are difficult to understand and apply. Local zoning bylaw, based on the state law, suffers a trickle-down effect of opaque language and baroque organization. Still, comprehensive legislation has failed to pass for the last 20 years.
This bill could be the one that finally gets the job done, says its cosponsor, Senator Jamie Eldridge, who told the Press that his interest in zoning reform began when he served on the Acton Planning Board and encountered “the most backward zoning law in the country,” the Approval Not Required (ANR) land division process. The ANR allows land with sufficient access and frontage on an existing road to be divided outside the jurisdiction of the Subdivision Control Law. “That leads to sprawl like you see on Route 9,” Eldridge said, characterizing it as an anachronistic loophole that robs towns and cities of rightful control.
While support is strong for doing away with the ANR, and for the improved organization and writing in the law, one proposal is especially worrisome to volunteer planning boards across the state. The “Consistency with Master Plan” section, where local zoning law must “not be inconsistent” with master plan goals and vision, raises fear of undue legal exposure: if a developer alleges inconsistency in court, the burden of proof belongs to the town. However, communities will have a grace period of seven years to find and fix discrepancies before being subject to litigation.
The Stow Planning Board, for one, is firmly opposed. “These bylaws should be specific to the communities’ preference, as voiced by the vote of Town Meeting, and not be put at risk for challenge,” says Stow’s Planning Board in a letter to the Senate committee considering the bill.
Harvard Planning Board Chairwoman Kara Minar said she is also wary, but endorses consistency in principle. Harvard’s Master Plan is at the very beginning of a 10-year update, where inconsistencies could be detected in advance. “It’s one more reason to have the best, most solid Master Plan,” she remarked.
Hopkinton’s town planner and Harvard resident, Elaine Lazarus, asked this week for comment, sympathized with Stow’s concern, but emphasized the need for reform. “Lawsuits are common in the world of development, but reform has been in the works for probably 20 years.”
Eldridge defended the measure by emphasizing the advantages of the established legal principle of “rebuttable presumption,” which in this case might spur legal action, but might also empower communities to defend their land use goals on solid ground. “The town can now uphold its [Master Plan] vision if it gets challenged in court,” he said in defense of the measure last month.
Funding for the bill is proposed, but not yet appropriated, at $11 million. But the money is aimed at communities that enact the optional, partnership portion of the bill, meant to promote the state’s Smart Growth policies and designed for larger towns with existing municipal water, sewer and transportation facilities. Funds to help towns bring consistency to their zoning bylaws and master plans would not be available under the current structure.
Again, the Stow Planning Board objects. “Not opting into this partnership act penalizes the small town that doesn’t have an infrastructure,” said Ernie Dodd, a nine-year member of that board. “It is almost impossible to meet the development requirements to become an opt-in community, even in Stow’s village center.” Dodd wants a tiered approach to the partnership act, where small towns could also qualify for benefits. He will testify to that effect at next week’s Senate hearing on the bill.
This week, Eldridge’s office said change was possible for the partnership act and urged interested citizens to weigh in.
