SteveR: initial revision

2022-04-24T02:14:21Z

initial revision

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Course held via remote participation on April 21, 2022. The
instructor was Jim Robbins, who's Westboro's town planner.

Spot Zoning is the practice of improving the value of a property in a
way that's not shared by other properties in the district. Zoning
changes that further a master plan are generally not considered spot
zoning.

Overlay districts are superimposed over existing ones. They don't
replace the underlying district; instead, they add a new layer of
controls. Overlay districts can impose new restrictions, or loosen
existing ones. Using an overlay avoids the need to rewrite the base
district zoning.

The validity of overlay districts has not been expressly addressed by
the (Massachusetts?) courts. They should be sustainable if they are
not arbitrary and capricious and serve a legitimate planning purpose.

Euclid v Amber (1926) upheld the concept of overlay districts. In
that case, the overlay districts specified different building heights
in different areas

Zoning is entitled to a strong presumption of validity. It's invalid
only if there is no rational relation to a public objective.

Chapter 40A Section 4 contains the uniformity clause of the
Massachusetts Zoning Act. All uses within a district must be treated
the same. This is sometimes referred to as the SCIT Doctrine: all
land in similar circumstances shall be treated alike.

Form and Controls of an Overlay district. These define the purpose,
area, and regulations of the overlay.

The Massachusetts Smart Growth Toolkit advises planners to keep things
simple when the goal is to incentivize a use. Having a
straightforward sets of rules creates less risk, and makes it more
likely that projects will proceed.

Typical sections in an overlay district include

* A statement of purpose
* Definitions (if not covered elsewhere in the bylaw)
* Applicability
* Process requirements (e.g., site plan review)
* Use regulations
* Development standards (which includes dimensional regulations)

Overlay districts are useful for adding protections to hazard areas or
to natural resource areas. They can be used to promote development
along transit corridors. Examples include: adaptive re-use overlay
districts, mixed-use overlay districts, affordable housing overlay
districts, and overlay districts to encourage development in a
downtown area.

Westboro has an industrial overlay district where proponents can
receive height and density bonuses in exchange for low-impact and
sustainable development. Westboro has another overlay whose purpose
is to revitalize and re-use existing properties. This was used to
convert an old industrial site (an abrasives factory) into an
extension of the downtown.

Chapter 40R allows cities and towns to establish smart growth overlay
districts. These allow by right development that creates compact
residential uses in suitable locations. 40R overlays have to be
approved by Mass DHCD. So far, 44 of these districts have been
approved statewide.

An "IPOD" is an interim planning overlay district. This can be used
as an alternative to a moratorium while changes to a bylaw are being
worked out.

Advantages of overlay districts: they can be simpler than amending the
underlying zoning, they tend to be easier to adapt to geographically
challenging areas, the cost of drafting overlay district regulations
is typically no greater than the cost to rewrite a base district, they
can provide protection for hazard areas, and they're often seen as
less risky by property owners.

Disadvantages of overlay districts: they create an extra layer of
regulations, they may inadvertently cause conflicts with regulations
for the base district, and they may be confusing to the public,
applicants, and enforcement officers.

We now move on to questions and answers.

Question: Are there examples of overlay districts that can promote
life sciences?

Answer: Yes. For example, you might offer a density or height bonus,
in exchange for using low impact development techniques.

Question: How new must a master plan be, in order to be considered
valid?

Answer: Master plans should be updated every 10--12 years. Overlays
should be consistent with updates to the master plan.

Question: Why not just redo the base district?

Answer: One reason is to avoid concerning property owners about
potential loss of value to their property, or concerns about making
their property non-conforming. Owners tend to be more receptive when
they see you augmenting the set of uses allowed.

Question: Do master plans have to be approved by town meeting?

Answer: Massachusetts General Laws don't require the master plan to be
approved by town meeting; it only has to be adopted by the local
planning board. But there's no harm in having it approved by town
meeting.

Question: What about uses in the underlying district?

Answer: The underlying uses are still allowed; the overlay just
incentivizes something else.

Question: Can you give an example of an overlay district that
conflicts with the underlying zoning?

Answer: One example is a use that's allowed in the base district, but
would be prohibited in the overlay. For example, you might have an
industrial district that allows manufacturing of chemicals. That use
could conflict with a groundwater protection overlay district that
prohibits such manufacturing.

Question: Could an overlay district be used to require upper-story
step backs where a business districts abuts a residential district?

Answer: That's generally not a problem, as long as there's a purpose
statement to make that objective clear. The purpose statement should
contain a clear statement of intent.

Question: Can an overlay district be used to guide design preferences?

Answer: Yes, but you have to be very specific about what you're asking
for. For example, by providing a set of design guidelines.

Question: Can an overlay district be used to prevent Marijuana uses.

Answer: In general, it would be better to use the overlay to indicate
where marijuana uses are allowed. That tends to produce more
predictable results than defining areas where the use is prohibited.
An applicant might surprise you by proposing a marijuana use in an
area you hadn't considered.

Question: Would a two-third's vote of town meeting be required for an
overlay district to create affordable housing.

Answer: If the overlay meets the requirements of 40A's housing choice
provisions, then you need a simple majority. Otherwise, you'll need a
two-third's vote.

Question: What about an overlay for an MBTA district.

Answer: The guidelines for MBTA districts are still being finalized,
but it's probably safe to assume that will require a majority vote.

Question: Could you give a few examples of bonuses that could be used
in an overlay district? Maybe tax incentive financing (TIF)?

Answer: Overlay districts districts don't contemplate TIF. A TIF
requires adoption by both the executive and legislative branches of a
community. You could allow things like additional height and massing,
reduced lot area per dwelling unit, or less open space. You can also
make the bonus conditional on fulfilling a set of requirements, such
as using low-impact development, LEED compliance, providing EV
charging stations, or using renewable energy sources.

Question: What about enforcement?

Answer: Applicants can always seek a variance from the zoning board of
appeals. They can also challenge your bylaw in court.

Question: Is it possible to do a small overlay district -- a single
street corner for example? Or, would that be considered spot zoning?

Answer: Overlays should further the purpose of a master plan. You
can't necessarily tie them to a specific parcel.

In closing, Mr. Robbins notes that in today's market, residential is
the number one thing that developers want to build.

[[Category:Notes]]

CPTC: Zoning With Overlay Districts - Revision history

SteveR: initial revision