CPTC: Adopting and Revising Rules and Regulations

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This module was presented by Pamela J. Brown, Esq., via the Massachusetts Citizen Planner Training Collaborative.

Massachusetts doesn't put everything into its state statutes. There's a strong tradition of home rule that leaves municipalities with the ability to adopt local laws and regulations.

Agencies have the authority to adopt regulations, to give effect to legislative mandates. These have less force than bylaws. Local regulations aren't binding upon courts, but they are given great weight.

Common types of rules and regulations for local planning and zoning boards include: site plan review, comprehensive permit, and subdivision regulations.

Question: What does it mean that regulations don't have the force of law?

Answer: Normal bylaws are adopted through a legislative body. Regulations are adopted by local boards through a majority vote. They're not a product of a legislative body.

Chapter 40A Sec 12 says that zoning boards shall adopt regulations and file them with the Town Clerk. These regulations must be "not inconsistent" with the local zoning bylaw. Regulations will be more defensible if they're consistent with the zoning bylaw, master plan, and other planning documents.

Chapter 40A Section 9 says that ZBAs shall adopt rules and regulations for the issuance of special permits. This is also applicable to planning boards and other special permit granting authorities.

Chapter 40 Section 33 says that all rules and regulations that contain a penalty (e.g., fine) shall be filed with the town clerk within ten days of adoption.

Failure to adopt rules and regulations usually won't invalidate a board's actions.

The permissible scope of internal operating rules remains unclear.

Zoning bylaws must not violate state or federal laws. This comes from the supremacy clause.

Rules and regulations are usually more about procedure than substance. They'll often name forms to be filed, list supporting materials that have to be included with a permit application, the number of copies to submit, instructions on where the application gets filed, fees, and newspaper authorization forms.

Rules and regulations may (carefully) include substantive items like design guidelines, lighting standards, a list of studies required, standards for open space, etc. This can be a useful way to give applicants an idea of what the community is looking for.

Regulations can be subject to challenge if they aren't authorized by a bylaw. A board cannot use regulations to circumvent approval by town meeting or a city council.

Regulations are easier to adapt, change, and fix than bylaws -- adoption is done by board members at a public board meeting.

Chapter 40B sections 20--23 allows zoning board to adopt rules and regulations for comprehensive permits. If a board doesn't adopt such regulations, the board's conduct will be governed by state regulations under 760 CMR 56.05. Board regulations for 40B typically require: a report on existing conditions, preliminary plans, unit counts, bedroom counts, a preliminary utilities plan, and a copy of the applicant's eligibility letter. Rules could also require a list of applicant credentials, an environment impact analysis, traffic studies, local preference criteria, waivers, a process for handling post-permit changes, long-term monitoring for affordability, and criteria for what constitutes a substantial vs a minor change.

LIPs (Local Initiative Programs) are "friendly" 40Bs, but they are still 40Bs. They generally involve more up-front work, before the applicant goes to DHCD.

Site plan review is not mentioned in Chapter 40A. It's entirely a creature of cities, towns, and the judiciary. Site plan review regulations usually emphasize project design, building orientation, layout, scale, architecture, materials, and pedestrian amenities. Again, these things help to give the applicant a sense of what the board is looking for.

Subdivision rules and regulations. Chapter 41 Sections 81K--81GG authorizes regulations for subdivision control. Subdivisions are generally allowed by right, as long as the applicant complies with applicable standards.

Changing subdivision regulations requires a majority vote of the board at a noticed public hearing. These regulations must be filed with the planning board, town clerk, and register of deeds.

Question: Is the registry required to retain all versions of a board's subdivision control regulations?

Answer: Not sure, but it's easy envision the registry doing so.

Question: What's the typical process for submitting subdivision control regulations to the land court?

Answer: Just file them with the land registry.

Question: Are subdivision control regulations separate from the zoning bylaw?

Answer: Yes.

For subdivisions, planning boards should require adequate access for travel, lessening of congestion in the public way, and reducing danger to life and limb. This usually involves the construction of streets. Regulations will deal with things like the width of roads, requirements for sidewalks, curbing material, drainage, curb cuts, street trees, and landscaping.

Question: If these things are already in the zoning bylaw, why put them in regulations?

Answer: Regulations are a better place to put fees, since they're easier to change. The zoning bylaw can always refer to board regulations. If there is a conflict, bylaws take precedence over regulations.

Question: Do MassDOT regulations supersede local ones?

Answer: For state roads, yes.

Question: Is it possible to build roads without sidewalks, since the state wants complete streets?

Answer: The state wants complete streets, but they can't enforce this. Complete streets may not be necessary in rural areas, where people might prefer to have greenery rather than a sidewalk.

Chapter 41 Section 81Q says what should be in subdivision control regulations. This includes engineering info like road width, grade, and construction standards.

Boards may have different regulations for different types of subdivisions: ANR, preliminary subdivision plans, and final subdivision plans.

Chapter 41 Section 81Q includes lists of mandatory and discretionary topics for subdivision control. Discretionary topics include requirements for underground utilities, pole provisioning requirements, solar standards, the orientation of streets and lots, vegetation, and the orientation of buildings on lots.

Some things are prohibited in subdivision control regulations. For example: requiring approval of any body but the planning board, construction standards exceeding those commonly used for ordinary public ways, standards more stringent than the zoning bylaw, and requirements to dedicate land for public use without compensation.

Boards can waive subdivision standards if it's in the public interest, and not inconsistent with the intent of subdivision control law. Examples of waivable standards include: road width, sidewalk requirements, and submission requirements.

Non-Zoning Regulatory Authorities. Many other boards can have rules and regulations, like the Board of Health, Conservation Commission, and Historic Districts Commission. These can include review fees, filing requirements, and procedural requirements.

Question: How are climate resiliency measures typically implemented?

Answer: They seem to permeated through laws, regulations, design guidelines, and stormwater regulations.

Question: What's a good way to ensure that developers complete subdivision roads. (In this case, it sounded like the developer was building the road piece by piece, as they sold/booked individual properties in the subdivision.)

Answer: If there was a bond and too much time goes by, you could try to call the bond. Depending on the conditions, you might not be able to do much. This can be mitigated via an assurity section in the subdivision agreement.

Question: Who enforces work done under a subdivision agreement?

Answer: Usually the planning board.

Question: Can you have regulations that protect you from citizen petitions?

Answer: No, not really.

Fee Schedules. Chapter 40 Section 22F authorizes municipalities to collect fees. Fees cannot be used to make money for the town; the intent is that they only cover expenses in reviewing applications. Fees should have a sliding scale, based on the intensity of the project. You can include fees for legal notice and publication.

Chapter 44S Section 53G allows boards to hire outside peer review consultants (e.g., for 40B applications), where the cost of peer review is charged back to the applicant.

Question: Could you recommend any criteria for sliding fee scales?

Answer: The criteria need to be fair and consistent. It's common to base the scale on the size of the project. Use your discretion as to what is reasonable.

Question: Do boards need to have a hearing before returning unspent Section 53G funds?

Answer: No, unspent money can simply be returned to the applicant. However, returning subdivision bonds does require a public hearing and a formal vote.

Board regulations must authorize the collection of consultant fees. They should also include a provision that allows the applicant to challenge the board's choice of peer reviewer (e.g., due to qualifications, or a perceived conflict of interest).

Excessive fees can be subject to challenge as an impermissible tax. Massachusetts town can charge fees, but property taxes are the only form of taxes they're allowed to collect. See Emerson College vs. City of Boston (1984).