CPTC: Roles and Responsibilities of Planning and Zoning Boards

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Training session offered by the Citizen Planner Training Collaborative. Presented by Bob Mitchell on December 2, 2020.

Massachusetts is a home rule state. We have Chapter 40A (the Zoning act) which places some restrictions on what municipalities can put into their zoning, but 40A isn't what gives cities and towns the power to zone. The power to enact zoning comes from the Home Rule Amendment to the Massachusetts State Constitution, which is Article 89. Home rule gives municipalities the power to adopt laws to protect public health, safety, and welfare. Municipalities cannot adopt laws that conflict with state powers, but they're still offered a lot of flexibility.

There are some federal exemptions from local control. For examples, wireless towers and signs (e.g., Reed v Gilbert).

All zoning laws must have a map, even if a municipality only has one zone. Uses can be allowed by right, by special permit, or disallowed. Rules must be uniform throughout zoning districts.

In order to be an effective board member, one should know the authorities and duties of the board, know the board's rules and regulations, be aware of standards for decision making (e.g., precedent and case law), have familiarity with state regulations and laws, as well as the authority of other boards and commissions (e.g., Conservation Commission, Historic Districts commission).

Planning boards have 5, 7, or 9 members. They can be appointed or elected. Zoning boards have 1, 3, or 5 members. They're generally appointed.

Planning boards can use associate members for special permit hearings, if the chair decides to do so. The ZBA chair will designate associate members when needed for a case.

Planning boards are involved with master plans (Chap 41 Sec 81D), zoning amendments (Ch. 40A, Sec 5), special permits (Ch 40, Sec 1A and 9), subdivision control (Ch 41, sec 81), site plan review, repetitive petitions, and the establishment of historic districts and scenic roads. They may act in an advisory role during comprehensive permits.

Zoning boards handle appeals of the building inspector, special permits, variances, changes to non-conforming uses or structures, and comprehensive permits.

A master plan must have nine sections required by Ch 41 Sec 81D, but it may have others. A master plan is a visionary policy framework, which is tailored to a specific municipality. Although master plans are long-term plans, they should still be reviewed periodically. They contain statements of goals and standards, and should be specific enough to provide for their implementation. It's worthwhile to include benchmarks as part of the master planning effort.

Some states require zoning laws to reflect goals of the master plan, but Massachusetts does not. Still, it's good to compare zoning bylaws with what's in the master plan, to see if they'll support or hinder its goals.

Both planning boards and the ZBA can propose zoning amendments. The planning board is responsible for holding public hearings on any proposed zoning changes. Zoning changes must be approved by 2/3's vote of town meeting or the city council.

Planning board can act as special permit granting authorities, where dictated by local ordinances. Special permits are intended for uses that might be more impactful or warrant further review. One cannot have a district where all uses require a special permit. Ch 40A sec 3 exempts certain uses from special permit requirements. Ch 40A sec 9 gives general rules and timelines for special permits.

Question: can a planning board set conditions that are more restrictive than the applicable bylaws? No, boards cannot impose conditions that are unrelated to bylaws and regulations.

Special permit hearings must open withing 65 days of the special permit being filed, and the hearings must be properly noticed. Decisions and filing must take place within 90 days of when the hearing closes. A super-majority of the full board is required for approval (e.g., 4 of 5 members).

The 65 day window begins when the permit application is filed. The hearing must be opened, even if the application is incomplete or deficient. Boards that don't meet this timeline can be challenged by a request for a constructive grant.

Subdivisions divide a lot into two or more lots. Planning boards should have rules and regulations for subdivision applications. Subdivisions might require performance guarantees (e.g., bonding). The process begins with a preliminary subdivision plan. There's no public hearing, and the planning board has 45 days to approve, modify, or deny. Definitive subdivision plans must be recorded with the registry of deeds. Subdivisions are not discretionary; a board must approve a subdivision that meets its regulations.

Performance guarantees typically outline when streets, sewers, utilities, and so on will be built. This may occur in phases.

The board of health has 45 days to respond to definitive subdivision plans.

ANR plans are plans where approval is not required. Lots must have adequate frontage, and the plan must provide adequate access to lots. These are the only two requirements a board can consider (e.g., they cannot consider minimum lot area requirements). ANR plans do not require a public hearing, and boards must reach a decision in 21 days. If not, an applicant can file for constructive approval.

Question: what should a board do if it receives a subdivision plan where the lots are too small? Boards will often add a notation to the effect of "no determination has been made as to whether these are buildable lots".

Repetitive permits. If a special permit is denied, the petitioner cannot come back for two years, unless approved via a repetitive petition process. There must be specific and material changes to what they are proposing.

Planning boards can recommend scenic road designations. They are also involved in the removal of shade trees from scenic roads and historic districts.

The ZBA handles appeals of building inspector decisions. These are cases where someone claims that the building inspector wrongly granted or denied a building permit.

Some ZBA handle appeals of site plan review. This is most common when site plan review is done administratively. Bylaws should state what the appeal process is (e.g., ZBA, land court).

ZBAs handle requests for variances. Dimensional variances are common, while use variances are rare. Use variances are only allowed if local bylaws permit them.

The decision criteria for variances is fairly narrow. Variances can only be granted if

  • The variance is sought because of conditions relating to the specific site or topography
  • Literal enforcement would create a hardship
  • granting the variance will not cause substantial detriment.

ZBAs can delegate powers to a zoning administrator, but this isn't commonly done.

ZBAs handle permits involving non-conforming uses or structures. They consider whether a proposed change would increase the non-conforming nature, and whether than change would be substantially more detrimental to the neighborhood.

ZBAs handle comprehensive permits, and must adopt dedicated rules and regulations for them.

Board decisions should include all correspondence, oral testimony, facts and findings. Findings must not be simple recitations of standards.

Boards should have rules and regulations to cover their policies and procedures. These should be publicly posted. Rules and regulations include procedures for electing officers, duties, and appointments to other boards and commissions.

Board meetings are subject to open meeting laws. They must be properly noticed, with posted agendas.

The Mullin Rule is described in Ch 39 Sec 23B. If a board member misses a hearing, they must review all evidence (recordings, notes, etc) and provide certification of having done so. This only applies in municipalities that have adopted the Mullin rule.

Generally speaking, having a majority of board members present will count as a quorum. Note that quorum might not be enough to approve applications (i.e., where a super-majority is required).

Remote participation is allowed, when it's been adopted by the city council or select board. Participants must be audible and visible to each other.

Rules and regulations should include filing fees and requirements. This lets applicants know what to expect.

Some communities have codes of conduct, beyond state ethics laws.

Boards can conduct meetings in executive session. Boards must go into executive session from an open session, and there are restrictions on what may be discussed during an executive session.

Just about anything a board touches will be considered a public record.

Board members should be cognizant of conflict of interest laws.