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On Behalf of | Oct 7, 2013 | Land Use And Zoning |

When it comes to site plan review, perhaps too many zoning attorneys know all too well the following scenario.

A client comes in with plans to build her dream house. The proposed single-family home-an as-of-right use in the zoning district-meets all dimensional and setback requirements. The lot itself also meets minimum requirements. And while her vision of an ultra modern glass and steel façade might not be your cup of tea, and the home might be larger than most people require, there is nothing in the zoning bylaw that prevents it. In fact, there is nothing really getting in her way except a stop at the zoning board of appeals or local planning board for what should be a routine site plan review. Yet, what she and you encounter with the Board are a dizzying set of conditions, findings and prescriptions-not to mention from several abutters-that seek to modify, regulate and condition your dream home.

From a legal standpoint, the site plan review process (and the approval that should result from it) for as-of-right uses is supposed to be non-discretionary. It should not amount to prohibition of the use. At best, some minimal regulation in the form of reasonable conditions might be legally tenable. Just like special permit site plan review, as-of-right site plan review

is justifiable as an informational tool which discloses the specifics of the project, including the proposed location of buildings, parking areas, and other installations on the land, and their relation to existing conditions such as roads, neighboring land uses, public features, and ingress and egress roads.

Prudential Ins. Co. of America v. Bd. of Appeals of Westwood, 23 Mass. App. Ct. 278, 281 n.6 (1986).

But that is where the similarities should end. As-of-right site plan review does not grant the reviewing board even a fraction of the discretionary authority provided in special permit site plan review. More to the point: the regulation of single-family residences in this context represents the nadir of zoning regulatory authority because such uses implicate the interests which animate zoning laws to the least degree. This is particularly highlighted by the traditional role of site plan review in the commercial and industrial development contexts. Typically and traditionally, site plan review “establishes criteria for the layout, scale, appearance, safety, and environmental impacts of commercial or industrial development in an attempt to ‘fit’ larger projects into the community.” St. Botolph Citizens Committee, Inc. v. Boston Redev. Authy., 429 Mass. 1, 9 (1999). The application of site plan review to any residential use, therefore, is something new and different from, and an expansion upon, the historic use of this non-statutory mechanism “to ‘fit’ larger projects into the community.”

Indeed, in many cases, the site plan review provisions of some zoning bylaws implicate substantive due process and the equal protection provisions of the Massachusetts Constitution, particularly when it comes to an as-of-right residential use. A Board’s unfettered site plan review authority over as-of-right uses is also difficult to square with several Appeals Court and Supreme Judicial Court cases (notwithstanding the anomaly decision of Muldoon v. Planning Bd. of Marblehead, 72 Mass. App. Ct. 372 (2008)), as well as the uniformity requirements found in M.G.L. c. 40A, § 4.

The application of site plan review to single-family uses-a use which implicates such community concerns to the least degree of any use differentiated under zoning classifications-neither bears a relationship to legitimate governmental considerations (i.e. community health, safety and welfare), nor could “an impartial lawmaker . . . logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.” See Goodridge v. Dept. of Public Health, 440 Mass. 309, 330 (2003). For example, larger houses are already typically regulated by the dimensional regulations of cities and towns, as to front, rear and side set backs, limitations on height, minimum lot area, and lot coverage and floor to area ratio requirements, which have the virtue of not treating larger single-family uses any differently than every other single-family use in a municipality. Moreover, many communities make no distinction between site plan review of commercial buildings and residential dwellings. Of course, commercial structures are typically located on busy roads, generate large amounts of traffic, require significant parking areas and traffic management issues, require loading docks, commercial vehicle access, generate large amounts of refuse and recyclables and create large areas of impervious surfaces that require complex drainage systems, detention and retention basins and efforts to protect environmental impacts. Even very large homes of 10,000 square feet or more do not come close to having the same kinds of impacts. Nevertheless, homeowners can find themselves hiring civil engineers, sound experts, landscape architects and lawyers to lead them through site plan review hearings.

Site plan review, in the as-of-right context, should be limited in nature. If a community seeks to apply site plan review to a single family home use, the regulations should be tailored to such uses and should not apply a one-size-fits- all regulatory scheme that requires single family dwellings to meet commercial criteria for large industrial and business development. With some fashion of zoning reform likely on the horizon, it remains to be seen whether the Massachusetts Legislature will address what many see as unfair municipal regulation of as of right uses that affect otherwise permissible development.

In the meantime, M.G.L. c. 40A, § 4 is clear: the site plan review authority is not permitted to vary the substantive zoning for an as-of-right use via a conditioned site plan review approval. General Laws Chapter 40A, Section 4 provides that “[a]ny zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted.” In SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 106 (1984) SCIT includes the following analysis with respect to uniformity and Massachusetts zoning:

Section 4 of c. 40A provides that “[a]ny zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted.” The basic assumption underlying the division of a municipality into zoning districts is that, in general, each land use will have a predictable character and that the uses of land can be sorted out into compatible groupings. See Leahy v. Inspector of Bldgs. of New Bedford, 308 Mass. 128, 132, 31 N.E.2d 436 (1941). Based upon this assumption, certain uses are permitted as of right within each district, without the need for a landowner or developer first to seek permission which depends upon the discretion of local zoning authorities. The uniformity requirement is based upon principles of equal treatment: all land in similar circumstances should be treated alike, so that ‘if anyone can go ahead with a certain development [in a district], then so can everybody else.’ 1 Williams, American Land Planning Law § 16.06 (1974).

These principles underpin § 4 of c. 40A, and have long constituted a limitation on municipal zoning power. As was said on the subject in Everpure Ice Mfg. Co. v. Board of Appeals of Lawrence, 324 Mass. 433, 439, 86 N.E.2d 906 (1949): ‘A zoning ordinance is intended to apply uniformly to all property located in a particular district … and the properties of all the owners in that district [must be] subjected to the same restrictions for the common benefit of all.’

Some exceptions to uniformity are sanctioned by the Zoning Act and involve generally a limited tolerance for nonconforming uses (§ 6 of c. 40A) and provision for special permits and variances (§§ 9 and 10 of c. 40A, respectively). These exceptions aside, § 4 does not contemplate, once a district is established and uses within it authorized as of right, conferral on local zoning boards of a roving and virtually unlimited power to discriminate as to uses between landowners similarly situated.

Id. at 107-08.

In light of the foregoing, It is hard to see how site plan review of an as of right use of a single family home in a residential district that meets all of the dimensional criteria of that zone, can be subject to any kind of site plan review that seeks to further regulate or condition the structure or use in any substantial manner.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.


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