[Massplanners] ANR & Law Revocation Question

Mon Aug 16 19:33:23 EDT 2021

Indeed, Somerville opted out in 1993.  First the City claimed it had never accepted the law, but then lost a case where a judge determined that the City was subject to subdivision control.  So in 1993 the City got a home rule petition approved, and, per Section 288 of the Acts of 1993, Somerville has no subdivision control law. 

Follow the link and scroll down: https://archives.lib.state.ma.us/bitstream/handle/2452/26303/1993acts0288.pdf?sequence=3&isAllowed=y <https://archives.lib.state.ma.us/bitstream/handle/2452/26303/1993acts0288.pdf?sequence=3&isAllowed=y>

As Jeff notes, Somerville then reviewed subdivisions through a form of site plan review, claiming that subdivision need to go through that process to be valid for zoning purposes under the code.  We’ve carried this through to the new Somerville zoning, that has different levels of administrative review (planning director or planning board) to split lots, combine lots, change lot lines or build new lots with new roads.  

In 2012 the Land Court essentially affirmed our process in the only case where I’ve seen it tested (MLM Realty Trust vs Somerville).  In that case, the Planning Board denied the site plan review for a simple spilt of a lot (what would be an ANR in any other community). The Land Court judge remanded it back to Planning Board and reminded them that they could not deny a site plan review, but that they were permitted to put reasonable conditions on the approval.  To me, as Planning Director at the time, that was a big win for the City.  I didn’t expect the court to let a denial of a site plan review to stand.  We advised the Planning Board that they couldn’t deny it.  But, the court did affirm our use of the process and permit the Board to put conditions on the approval. 

What that means for other communities, I don’t know.  Since the home-rule is a one-off thing, I don’t think this provides any precedent for any other community. Not sure if the legislature would let a home-rule like this pass today.  But, if another community submits one, I suggest being more clear about what a local government CAN do, rather than leaving that detail unclear in the home-rule language (as we did in 1993).  

George Proakis, 
OSPCD Executive Director, City of Somerville

> On Aug 16, 2021, at 7:38 AM, Jeffrey Robert Levine <jrlevine at mit.edu> wrote:
> 
> IIRC Somerville “opted out” sometime around 1990 in order to try to eliminate preexisting nonconforming lots (a new zoning ordinance downzoned much of the city at that time, as their policy in the 90’s was “de-densification”). I think repealing local application of c41 s81K etc. required legislative approval, and left open the question of whether the City could regulate subdivisions at all.
>  
> While the City had a site plan process to review subdivision of land, there was nothing stopping a landowner from filing a subdivision that didn’t go through that process at the registry, and some thought that if you don’t have subdivision control under the c41 you can’t regulate subdivisions. I remember at least one situation where this came up in the early 2000’s.
>  
> Anyone who remembers the details feel free to correct me!
>  
> Jeff
>  
> Jeff Levine, AICP (he/him)
> Lecturer in Economic Development & Planning
> Department of Urban Studies & Planning
> Room 9-511
> jrlevine at mit.edu <mailto:jrlevine at mit.edu>
> https://mit.zoom.us/my/jeff.levine <https://mit.zoom.us/my/jeff.levine>
> @JLevineDUSP
> (617) 253-3964
> <image001.png>
>  
>  
> From: MassPlanners <massplanners-bounces at masscptc.org> On Behalf Of Douglas Finn
> Sent: Monday, August 16, 2021 7:43 AM
> To: B <bfitzgerald.ma at gmail.com>
> Cc: massplanners <massplanners at cs.umb.edu>; Mass Planners <massplanners at masscptc.org>
> Subject: Re: [Massplanners] ANR & Law Revocation Question
>  
> First sentence of Sec 81N of Ch 41 (emphasis added for... clarity?):
> 
> "Section 81N. Except as provided in section eighty-one EE, the subdivision control law shall be in effect in every city, except Boston, and every town, which prior to the first day of January, nineteen hundred and fifty-four, established a planning board as defined in section eighty-one L, or which after said date establishes a planning board under section eighty-one A unless such city or town by vote of its city council or town meeting at the time of establishment of such board shall vote not to accept the provisions of the subdivision control law."
> 
> I could be wrong, but this sounds to me like the Town has a single opportunity to reject subdivision control law.  Can a town opt out afterward?  Not sure... 
> 
> FWIW:  Bobrowski confirms that towns can opt in, confirms the responsibility of the Planning Board to establish rules, but is silent on the issue of opting out.  Maybe because no city or town ever has?
> 
> - Doug.
> 
> Douglas Finn, Administrative Assistant
> Edgartown Planning Board
> 70 Main Street, PO Box 5130
> Edgartown, MA 02539
> 508-627-6170
> dfinn at edgartown-ma.us <mailto:dfinn at edgartown-ma.us>
>  
>  
> On Sun, Aug 15, 2021 at 1:57 PM B <bfitzgerald.ma at gmail.com <mailto:bfitzgerald.ma at gmail.com>> wrote:
> I really, really recall SCL being opt in.  There are still some communities...urban mostly, who never adopted it and work through other mechanisms.
>  
> But, as you say, interesting  legal question. Though should be easy to figure out.
>  
> On Fri, Aug 13, 2021, 2:08 PM Buzz Constable <buzz.constable at gmail.com <mailto:buzz.constable at gmail.com>> wrote:
>  
> Bill –
>                   Ah, yes -- the marathon o fzoning reform has more years than the Boston Marathon has miles.....
>                I believe that any law which a community has to accept can later be rejected, unless the statute provides to the contrary; however, you should confirm that with town counsel.
>                However, MGLc 41 §81K, et.al <http://et.al/>., the Subdivision Control Law, as well as most sections of MGLc 40A, the Zoning Act, are mandatory, including I believe both ANRs and grandfathering. No rejection allowed, although one could always seek special legislation for an exemption.  Good luck on that.
>                As for Doug’s idea that all ANR – divided lots are unbuildable until the PB certifies otherwise – I would anticipate some legal fight, but it's an interesting idea.
>  
> Regards
>  
> Buzz
>  
> William Constable
> 17 Old Lexington Rd.
> Lincoln, MA 01773
> 617-719-1771
>  
> From: B <bfitzgerald.ma at gmail.com <mailto:bfitzgerald.ma at gmail.com>> 
> Sent: Friday, August 13, 2021 12:32 AM
> To: William G. Constable <buzz at awperry.com <mailto:buzz at awperry.com>>
> Cc: massplanners <massplanners at cs.umb.edu <mailto:massplanners at cs.umb.edu>>; Mass Planners <massplanners at masscptc.org <mailto:massplanners at masscptc.org>>; buzz.constable at gmail.com <mailto:buzz.constable at gmail.com>
> Subject: Re: [Massplanners] ANR Question
>  
> Buzz
>  
> 20 years? Don't sell you (and I) short, ha. Hope you are well.
>  
> Question I've asked in the past and never seen an answer...if a community has to accept a law, can they repeal that acceptance? (Assuming for a second nothing in the law says they can't?).  I wonder what happens to ANR, grandfathering, etc?
>  
> Changes the balance for land use reform?
>  
> Bill Fitzgerald
> Avon DPW
>  
> On Wed, Aug 11, 2021, 12:41 PM William G. Constable <buzz at awperry.com <mailto:buzz at awperry.com>> wrote:
> Richard, et.al <http://et.al/>. --
> As a veteran of the Zoning Reform movement – at least two decades old – I believe that most observers agree that broad change to MGLc 40A is very unlikely in the foreseeable future.  ANR has been a foundational matter for homebuilders and other developers, so use of your zoning bylaw to regulate larger ANR subdivisions is unlikely.
>                However, you might consider seeking Town General By-law requiring review by the Bd of Selectmen and Bd of health before any building permit is issued involving land which has been subdivided via DNR in the past five (three, or ten?) years, and requiring a note to that effect on any ANR plan for an aggregate of more than five (three, or ten?) lots – note that it must include serial ANR plans to come under the numerical threshold.  The public interest in reviewing curb cuts, groundwater quality and public water supply would, I suggest, make such a bylaw defensible.
>                My two bits
> Buzz Constable
>  
> From: MassPlanners <massplanners-bounces at masscptc.org <mailto:massplanners-bounces at masscptc.org>> On Behalf Of Kristina Johnson
> Sent: Wednesday, August 11, 2021 11:53 AM
> To: Tim Czerwienski <tczerwienski at townofmilton.org <mailto:tczerwienski at townofmilton.org>>; Richard Clark <rpclark508 at aol.com <mailto:rpclark508 at aol.com>>; massplanners at cs.umb.edu <mailto:massplanners at cs.umb.edu>; massplanners at masscptc.org <mailto:massplanners at masscptc.org>
> Subject: Re: [Massplanners] ANR Question
>  
> Hello Tim, et.,al.,
>  
> The legislation that you are referencing is from several years ago and is no longer in play. There are currently no  bills this session that deal with ANR reform. As you can imagine, comprehensive  zoning reform is difficult because it’s complicated and generates immediate opposition given its size, scope, and subject matter. APA-MA and MAPD have filed legislation  this session relative to zoning reform, two of which received hearings: codifying a framework for site plan review and lowering the voting threshold for all zoning amendments (which is written as an opt-in for municipalities unlike Housing Choice). 
>  
> Hope this helps clarify the status of zoning reform.
>  
> Best,
> Kristina 
>  
> Kristina Johnson,AICP
> Director of Planning and Community Development 
> President, Mass. Association of Planing Directors 
> Town of Hudson,MA
> Cell: 857-939-3427
> Office. 978-562-2989
> From: MassPlanners <massplanners-bounces at masscptc.org <mailto:massplanners-bounces at masscptc.org>> on behalf of Tim Czerwienski <tczerwienski at townofmilton.org <mailto:tczerwienski at townofmilton.org>>
> Sent: Wednesday, August 11, 2021 11:37 AM
> To: Richard Clark; massplanners at cs.umb.edu <mailto:massplanners at cs.umb.edu>; massplanners at masscptc.org <mailto:massplanners at masscptc.org>
> Subject: Re: [Massplanners] ANR Question
>  
> ANR reform was a plank in the wide-ranging Zoning Reform package that came tantalizingly close to passage a few years ago. I’m sure others on this listserv have more insight into where that stands right now.
>  
> https://www.mapc.org/planning101/support-the-house-zoning-and-housing-initiative/ <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.mapc.org%2fplanning101%2fsupport-the-house-zoning-and-housing-initiative%2f&c=E,1,mzc9ae1hS4LkHgw_eT8TSFbcPzL78xUHD5d6eSDrWv-wujdh25kIrehpgObp5XiRo6dC3ZaLtLwCaHKv3sd2s_qss3b9yP6M1yOeXC1PH_zlmivWrQ,,&typo=1>
>  
> From: MassPlanners <massplanners-bounces at masscptc.org <mailto:massplanners-bounces at masscptc.org>> On Behalf Of Richard Clark
> Sent: Wednesday, August 11, 2021 11:00 AM
> To: massplanners at cs.umb.edu <mailto:massplanners at cs.umb.edu>; massplanners at masscptc.org <mailto:massplanners at masscptc.org>
> Subject: [Massplanners] ANR Question
>  
> [External Email- Use Caution]
> Hello All,
>  
> Our town's Master Plan identified a concern with regards to ANR's. It notes, "The Town should have a mechanism in place that allows for the municipal review of major residential development proposals, that is multiple lots (five or more) being created along the frontage of an existing Town road." The ANR process does not allow for any such review. 
>  
> Has anyone else dealt with this concern and if so how has it been addressed? 
>  
> Thank you, 
> Richard Clark, Town of Dudley Planning Board
>  
>  
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