[Massplanners] MassPlanners Submission: Community Benefits Ordinance Legal Question

[Jeffrey Robert Levine]

I'm speculating a bit, but I imagine that CBO's applying to all developments might be interpreted as a form of Impact Fee. In Massachusetts, Impact Fees have generally required a home rule petition and legislative approval. In Barnstable County,  the Cape Cod Commission Act permits Impact Fees for communities with Local Comprehensive Plans.

It might be possible to thread the needle here via site plan or special permit criteria.

Happy to get any updates or corrections from others on this.

Jeff


Jeff Levine, AICP (he/him)

Associate Professor of the Practice

Program Head, Housing, Community & Economic Development

Department of Urban Studies & Planning

Room 9-511

jrlevine at mit.edu<mailto:jrlevine at mit.edu>

(617) 817-0424

https://dusp.mit.edu/people/jeff-levine

Office Hours: https://dusp.mit.edu/officehours

Personal Zoom Room: https://mit.zoom.us/my/jeff.levine (Passcode: 9-511)

Levine, J. (2021). Leadership in Planning: How to Communicate Ideas and Effect Positive Change (1st ed.). Routledge. https://doi.org/10.4324/9780429279287

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From: MassPlanners <massplanners-bounces at masscptc.org> on behalf of Hemeon-McMahon ,Aodhan via MassPlanners <massplanners at masscptc.org>
Sent: Wednesday, September 11, 2024 10:33 AM
To: massplanners at masscptc.org <massplanners at masscptc.org>
Subject: [Massplanners] MassPlanners Submission: Community Benefits Ordinance Legal Question


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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