Before proceeding with any project, it is essential to determine whether the municipality requires site plan review and approval. More importantly, because the procedure for appealing a site plan denial can be confusing, it is prudent to retain legal counsel well versed in these types of cases.
Site plan review is a "regulatory tool and a means for communities to control the aesthetics and environmental impacts of land use under their zoning by-law."
Muldoon v. Planning Bd. of Marblehead, 72 Mass. App. Ct. 372, 373 (2008). It is a review process that has been implemented in many Massachusetts communities as part of local zoning ordinances and by-laws.
Because site plan review is not expressly provided for under the Massachusetts Zoning Act (M.G.L. c. 40A), the practice and procedures are widely varied among municipalities. In many communities, site plan review is required as part of the special permit petition and approval process. Additionally, several cities and towns now require site plan review and approval even before certain as of right uses can proceed.
For example, in Pembroke, the zoning by-law requires the submission of a site plan for all structures (new, enlarged, relocated) and uses (to be established, added, changed, expanded) except for those structures, uses and accessory structures on any lot that will be used only for single-family use. By contrast, in Hingham, site plan review is not only required for certain special permit uses, but also for building permits related to non-residential projects that exceed minimum cost thresholds or that create a certain amount of land disturbance or alteration of drainage patterns.
Some communities also allow the submission of a preliminary site plan so that the applicant can obtain an advisory opinion from the board about whether the proposed use or structure meets the criteria for site plan approval before the formal site plan submission.
The required contents of the site plan are varied, but usually include
- preparation by a qualified registered professional (i.e. engineer or land surveyor)
- locus plan depicting lot dimensions, site layout, topography, boundary lines, existing easements, wetland areas and adjacent properties and structures
- location of footprints for existing and proposed structures, including building heights and number of floors
- traffic patterns and off-street parking areas (if applicable)
- proposed landscaping, site grading and elevations, lighting and signage
- layout of utilities, drainage, sewage disposal, and trash storage/removal
- proof of compliance with other applicable rules and regulations, such as board of health and Massachusetts Department of Environmental Protection
Typically, the site plan review and approval process requires the applicant to
- submit multiple copies of site plans to the site plan review authority (usually the planning board) and other municipal authorities and boards, such as fire and police departments, board of health, conservation commission, building inspector, and department of public works (these entities often provide an advisory opinion to the site plan review authority)
- provide notice to abutters and other interested parties defined under M.G.L. c. 40A, § 11, for those special permits that require site plan review
- undergo a public hearing process before the site plan review authority renders its decision
After the planning board has reviewed the site plan, it will either be approved as submitted, approved with conditions/restrictions or denied. Depending on whether the underlying use is a special permit use or a use allowed by right, the board's authority and discretion to condition or impose restrictions within an approval, or even deny a site plan, is somewhat limited.
In most cases, the board's decision can be appealed for further review. However, depending on the treatment of the site plan review process under the local zoning ordinance or by-law, the appeal procedure can be somewhat unclear as to whether it lies with the zoning board of appeals or the trial court. This confusion stems not only from the fact that site plan review (and appeals thereof) is not expressly provided for within the Massachusetts Zoning Act, but also because case law regarding this issue has been largely piecemeal and by-law and ordinance dependent, thereby creating uncertainty for site plan applicants regarding the proper forum and procedure for appeal.
Fortunately, there have been a couple of bills presented to the Massachusetts legislature to address and clarify the site plan review process within the context of the Massachusetts Zoning Act. Whether these proposed amendments to M.G.L. c. 40A gain any traction remains to be seen. In the meantime, applicants should seek legal counsel prior to submitting any site plans for review to ensure that all requirements have been met, and certainly in those cases where an appeal of the site plan review decision becomes necessary.
Written by Kristen M. Ploetz, Blog Editor
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.