[Massplanners] MassPlanners Submission: Community Benefits Ordinance Legal Question

[Hemeon-McMahon ,Aodhan]

Dear MassPlanners,

I have a legal question regarding implementation of Community Benefits Ordinances (CBOs). Every CBO that I have come across specifies that the municipality can require a benefits agreement through its CBO bylaw if the developer is seeking a financial incentive from that municipality. However, we were recently asked if it would be possible to legally enforce a CBO bylaw that requires any developer meeting a certain threshold to provide CBO benefits, regardless of whether they need financial assistance.

My question is this: Is it legal to have a CBO apply to all development (with some financial thresholds) and not just to developers who ask for financial assistance in the form of tax breaks, etc.? Does this run into any issues related to notions of "nexus" and "rough proportionality" as understood from the Nollan/Dolan cases? And do you know of any examples of this working in practice?

Thanks for any insights you can provide,
Aodhan Hemeon-McMahon


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