CPTC: Drafting Zoning Amendments

Presented by Brian Currie.

Zoning is the process by which a local government divides a municipality into zones, and adopts rules around buildings and uses. Zoning grew out of 19th century nuisance law. In Massachusetts, Zoning is intended to protect health, safety, and the general welfare. Zoning was originally provided for in the state zoning enabling act, but is now provided via Massachusetts's status as a home rule state. It's a police power.

Zoning is not boundless. Amendments must have a reasonable prospect of furthering health, safety, or welfare. One Massachusetts municipality tried to institute a zoning requirement that houses be at least 3,000 square feet. It was thrown out on the grounds of not furthering health, safety, or welfare.

Zoning can be invalidated if its goal is to regulate aesthetics, or if it's designed to preserve the economic value of a specific property (spot zoning). Zoning can also be struck down if it strictly serves local interests in conflict with the general public interest (e.g., an amendment that applies to boat owners).

Chapter 808 of the Acts of 1975 lists the set of permissible purposes for zoning. For example, lessening congestion in the streets, preserving health, providing safety from fire, flood or other dangers, providing adequate light and air, and avoiding undue crowding. The latter two originated from New York City's 1916 zoning resolution, which sought to regulate tenements. Zoning can also be used to conserve the value of land and buildings, to ensure housing for persons of all income levels, to encourage the most appropriate use of land, to facilitate transportation, water and sewerage, schools, parks, and open space.

Houston stands out as a major US city that doesn't have zoning laws. They only have protective (deed) covenants.

Ideally, zoning should flow from planning. However, Massachusetts has no consistency law, meaning that a municipality's zoning need not be consistent with its master plan. Still, municipalities should have a master plan, or at least a statement of goals.

Subdivision control involves the laying out of roads, utilities, and subdivisions. It grew out of conveyance law, and there's an enabling statue in MA. Subdivision control is distinct and separate from zoning. However, municipalities should consider how the two interact.

Chapter 40A section 5 gives the statutory process for adopting zoning change and amendments. The process differs between cities and towns.

Zoning amendments start with a warrant article (towns) or council article (cities). Amendments can be submitted by the planning board, zoning board of appeals, select board, individual owners of affected land, or by ten registered voters.

The Select Board or City council must transmit zoning petitions to the planning board within 14 days of receipt. The planning board must hold a hearing within 65 days of receipt of the article. In a city, the City Council will also hold a hearing. The planning board will submit an advisory report to the legislative branch, after its hearing concludes. Zoning articles require a super-majority vote of town meeting or city council to pass.

Amendments need only be within the scope of the article noticed to the public; a new hearing is required if an amendment would fundamentally change the proposal. The rule of thumb is "could a reasonable person have foreseen the proposed change after reading the original article". If not, the amendment is probably out of scope, and you should seek a new hearing.

Reconsideration is a process whereby a warrant article is reconsidered by town meeting. Motions for reconsideration must be made by someone who voted on the prevailing side. Reconsideration is usually used when new information comes to light after town meeting has voted on an article. Zoning articles can be reconsidered without a favorable recommendation by the planning board.

In towns, bylaw changes must be submitted to the attorney general's office within 30 days of town meeting dissolution.

Zoning articles become effective upon a positive vote. Where notice is required, the zoning change becomes retroactive to the date of first advertisement.

What's an appropriate planning board report? The report can be as simple as "we recommend favorable action", or "we recommend no action". Of course, the report can be more detailed.

Teamwork is important when submitting zoning changes. Confirm that the municipality has the authority to legislate on the topic. Do research into how other communities have achieved similar objectives. Be prepared to explain the need for the ordinance or bylaw. Communicate with municipal stake holders and the public. Confer with people that are familiar with your local zoning ordinance. Conduct work sessions. Confer with town counsel.

When drafting, be deliberately clear and intentional with word usage. Consistency is key. Try to articulate things in the cleanest and most concise manner.

Take advantage of the Mass General Court's Legislative Research and Drafting manual.

Know your audience. Clearly communicate what a person reading the regulations is supposed to do. Embrace compromise and balance. Favor comprehensible terminology over technical or legal terms.

The importance of educating the public cannot be overstated. You'll need to educate people and make them comfortable with changing the status quo. Don't ignore public concerns; address them. Use visuals. Start early; timing is very important in this process. Two months is usually a good timeline for outreach.

Send a courtesy copy of your main motion to the planning board in advance of your hearing. Involve committees tasked with reviewing zoning recommendations, if your municipality has them.

Zoning amendments come in three basic varieties: additions, deletions, or revisions. Your warrant article language will depend on how extensive the changes are, and whether you're making additions, deletions, or revisions. If changing the district associated with a particular parcel (i.e., a map change), it's advisable to site the parcel number from the assessor's database. For more extensive map changes, you may need a land plan stamped by a surveyor.

Drafting dos and don'ts. Be careful in how your language is organized. Use terms according to common usage, and be aware of terms that are defined in your bylaw. In a larger amendment, you may want sections for remedies, administration, and severability. Moratoriums should always include effective dates.

Use language that is precise, clear, and as simple as the subject matter will allow. Use words consistently -- avoid using two different words to refer to the same thing.

When a zoning amendment is passed; it's not what you said, it's what you wrote. Words should be interpreted according to their plain meaning.

Be very conscious of "shall" vs "may"

Avoid "and/or". These conjunctions mean two different things; choose the appropriate conjunction.

Be careful that punctuation does not alter the meaning. See O'Connor vs Oakhurst Dairy for a case where a misplaced comma determined the meaning of a law.

Lists should be clear. Use "at least one of", or "all of" when appropriate.

Charts and diagrams should include disclaimers, or be left out of the bylaw altogether. That said, graphic can be a helpful aid to definitions.

Any proposal to change the zoning map (i.e., to change the district in which a property lies) must be accompanied by a map.

Use present tense and active voice as much as possible. Use positive statements rather than negative ones. Opt for shorter sentences rather than longer ones. Organize paragraphs by topic. Avoid redundancy and ambiguity. Avoid pronouns; name the thing you're referring to. Avoid making value statements (e.g., "unwanted"). Prefer the singular to the plural.