January 21, 2019
KNOW HOW

Use zoning to your development's advantage

Mark Borenstein

Local zoning ordinances and bylaws are essential to comprehensive municipal planning and are intended to promote the health, safety and general welfare of the public. Yet, they are often times far from perfect.

Zoning ordinance or bylaw provisions are sometimes outdated, incompatible with the public need or economic growth, detrimental to the neighborhood or unduly restrict certain types of uses or developments. A zoning map might split a parcel of land into two or more zoning districts with certain districts being more restrictive than others. For reasons like these, developers often see zoning as one of most significant obstacles to developing land.

However, municipalities are often willing to work with developers to amend their zoning in order to fix deficiencies or provide a more clear path for a project. Developers should begin conversations with municipalities early in the process to determine how a zoning amendment can benefit their project.

Massachusetts law provides the procedure for amending zoning. A zoning amendment begins with the filing of a petition with a city council or with a request to insert an amendment for a town meeting. Once filed, the amendment is submitted by the city council or board of selectmen to the planning board. Following a public hearing on the amendment, the planning board will then provide a report to the city council or town meeting with its recommendation. After the planning board hearing, a city council or town meeting may adopt, reject, or amend the proposed zoning. Passage of a zoning amendment will generally require a two-thirds vote.

Although the zoning amendment process may appear rather straightforward, a number of issues can arise to disrupt the process, including objections by opponents, delays in the review process or getting on a city council/town meeting agenda. Proponents have to remain patient while the zoning amendment works its way through the approval process. Nevertheless, there are steps that can be taken to ensure the zoning amendment process runs as smoothly as possible.

Zoning amendments are subject to immense scrutiny, so proponents must have a clear understanding of what the effects will be on the subject property and the surrounding areas, and be prepared to address any objections or concerns raised by opponents. A lack of preparation and coordination with the municipality can lead to an unfavorable result, which would generally prevent the zoning amendment from being considered again for two years. Opponents of a zoning amendment may have a valid claim of spot zoning, which occurs when a municipality approves a zoning amendment benefitting one property over adjacent properties which are indistinguishable from the benefitted property. Proponents should be prepared for the possibility of opponents aggressively opposing and appealing the amendment. Zoning amendment appeals can significantly delay a development, which further underscores the importance of addressing opponents' concerns early on, to the extent possible.

At the end of the process, a successful zoning amendment can have a lasting, beneficial impact on the community. Through new development permitted by a zoning amendment, a developer can activate an underutilized parcel or offer new uses and/or styles or sizes of buildings previously not possible at a particular property. Zoning amendments have the power to expand the tax base and promote economic development within a community. Developers just have to think creatively and work closely with a municipality in order to make proper use of this effective tool.

Mark A. Borenstein is an attorney in the real estate and environmental practice at Worcester law firm Bowditch & Dewey. Reach him at mborenstein@bowditch.com.

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