CPTC: Site Plan Review
Course given on 12/18/2023. Presented by Adam Costa, and facilitated by Taylor Perez.
The Site Plan Review Process
What is site plan review? Site Plan Review authorities can review local development criteria, including such things as health and safety, environmental impacts, parking, traffic and circulation, signage, drainage, lighting, screening, and design. The goal is to have projects with the best design possible.
Site plan review is not enabled by state law, but the process is recognized by the courts. The process is created by municipalities, typically via home rule; approximately 100 communities in Massachusetts use site plan review.
Site plan review is typically triggered by the size and scale of certain projects. It's not used for everyday projects.
Who has site plan review authority? It's generally planning boards, but other groups can be involved. The municipality decides on the process.
Site plan review is used to examine project impacts, and to verify compliance. Site plan review is not a form of special permit, and it is not a discretionary process.
Site plan review cannot be used to decide whether a use is allowed, and it can't impose conditions outside of what's in the zoning bylaw or ordinance.
Site plan review applications typically require plan sets. They may also require things such as traffic reports and drainage calculations. The plans should show things such as development boundaries, existing conditions, roads, wetlands, water bodies, topography, public and private easements, surrounding context in the vicinity of the site, zoning district, automobile and bicycle parking, pedestrian access, circulation, landscaping, utilities, signs, outdoor lighting, and fire hydrants.
Site plan review boards are limited in their authority to impose requirements. Site plan review is meant to be a collaborative process.
What is the difference between site plan review and subdivision control? Site plan review is typically applied to business districts, industrial districts, multi-family development, and mixed use. Single-family districts are typically subject to subdivision control, but not site plan review.
Site plan review can be required for a change in use, if the new use is subject to site plan review.
Site plan review is a tool to share information and determine compliance; it is not used to shape a project or deny a use. It's a regulation of a use rather than a prohibition.
There are three outcomes to a site plan review process:
- Deny, if all of the requested materials were not provided,
- Approve, with reasonable conditions, and
- Deny, because there are issues that cannot be solved with reasonable conditions.
Option (3) has never been upheld by the courts, so (1) and (2) are the most practical outcomes. Site plan review is generally not meant to be a process that results in a denial.
Site plan reviews are usually decided by a majority vote. It's a best practice to have written decisions which are filed with the town clerk, but written decisions are not required.
There is not a state law that defines site plan review, and there is not a state law that defines and appeal process. Appeals have generally followed two paths, which we'll call the "old way" and the "new way". In the old way, an applicant whose site plan review was denied would apply for a building permit, the building permit would be denied, and the applicant would appeal the building inspector's decision to the zoning board of appeals. In the new way, a zoning ordinance will typically direct appeals to superior or land court. This avoids putting the site plan review boards and ZBA at odds with each other.
With respect to site plan review conditions, courts usually defer to the site plan review authority.
Site plan review can be used for Dover amendment uses, but it cannot be used to deny one of these protected uses. Communities are allowed to establish reasonable regulations for these uses.
Special permits are subject to zoning freezes (see Chapter 40A, Section 6). There is no zoning freeze for site plan review.
What's the difference between site plan review and a special permit? Special permits are discretionary, and boards are not compelled to grant them. Site plan review has limited discretion, and there's a narrow ability to set conditions.
State law spells out the timeline requirements for special permits. Local ordinances need to spell out the timeline for site plan review. This includes deadlines for opening the hearing, conducting the review, and rendering a decision. It's generally a good idea to use the special permit notification process for site plan review.
Site plan review and special permits are separate processes, and it's best to keep them separate. For example, if a project is subject to both site plan review and a special permit, then there should be two decisions -- one for each process.
Question: How much design review is permitted?
Answer: A degree of design review is acceptable. Note that the state's MBTA Community requirements require that multi-family housing be allowed by right.
Question: If denial of a site plan review has never been upheld, why have that option in the bylaw.
Answer: There may be instances where a site plan review could be denied, there's just never been a case where this has been upheld by the courts. (i.e., there may not have been a case where this has gone to court, or the court might have remanded the case back to the site plan review authority with instructions).
Writing a Site Plan Review Ordinance
What triggers site plan review? It's typically things like use, scale, location, or other characteristics of the development.
There are three common approaches to administering the site plan review process:
- The review is conducted by a single board (typically the planning board)
- The review is administrative
- The review can be administrative or conducted by a board, depending on the size and scale of the project. Bylaws often denote these as "major" and "minor" site plan review.
Site plan review processes can be used to seek advisory review from municipal staff, such as public safety, public works, and the board of health.
SPR is an opportunity to have a dialog with the applicant. It provides the applicant with an opportunity to explain their design choices, and any challenges that they're facing. The municipality has an opportunity to share information and suggest alternative choices.
There are no court decisions regarding constructive approval of design review. This is something that should be spelled out in the local ordinance, to provide clarity around the process.