CPTC: Zoning With Overlay Districts

Course held via remote participation on April 21, 2022. The instructor was Jim Robbins, who's Westboro's town planner.

Spot Zoning is the practice of improving the value of a property in a way that's not shared by other properties in the district. Zoning changes that further a master plan are generally not considered spot zoning.

Overlay districts are superimposed over existing ones. They don't replace the underlying district; instead, they add a new layer of controls. Overlay districts can impose new restrictions, or loosen existing ones. Using an overlay avoids the need to rewrite the base district zoning.

The validity of overlay districts has not been expressly addressed by the (Massachusetts?) courts. They should be sustainable if they are not arbitrary and capricious and serve a legitimate planning purpose.

Euclid v Amber (1926) upheld the concept of overlay districts. In that case, the overlay districts specified different building heights in different areas

Zoning is entitled to a strong presumption of validity. It's invalid only if there is no rational relation to a public objective.

Chapter 40A Section 4 contains the uniformity clause of the Massachusetts Zoning Act. All uses within a district must be treated the same. This is sometimes referred to as the SCIT Doctrine: all land in similar circumstances shall be treated alike.

Form and Controls of an Overlay district. These define the purpose, area, and regulations of the overlay.

The Massachusetts Smart Growth Toolkit advises planners to keep things simple when the goal is to incentivize a use. Having a straightforward sets of rules creates less risk, and makes it more likely that projects will proceed.

Typical sections in an overlay district include

• A statement of purpose
• Definitions (if not covered elsewhere in the bylaw)
• Applicability
• Process requirements (e.g., site plan review)
• Use regulations
• Development standards (which includes dimensional regulations)

Overlay districts are useful for adding protections to hazard areas or to natural resource areas. They can be used to promote development along transit corridors. Examples include: adaptive re-use overlay districts, mixed-use overlay districts, affordable housing overlay districts, and overlay districts to encourage development in a downtown area.

Westboro has an industrial overlay district where proponents can receive height and density bonuses in exchange for low-impact and sustainable development. Westboro has another overlay whose purpose is to revitalize and re-use existing properties. This was used to convert an old industrial site (an abrasives factory) into an extension of the downtown.

Chapter 40R allows cities and towns to establish smart growth overlay districts. These allow by right development that creates compact residential uses in suitable locations. 40R overlays have to be approved by Mass DHCD. So far, 44 of these districts have been approved statewide.

An "IPOD" is an interim planning overlay district. This can be used as an alternative to a moratorium while changes to a bylaw are being worked out.

Advantages of overlay districts: they can be simpler than amending the underlying zoning, they tend to be easier to adapt to geographically challenging areas, the cost of drafting overlay district regulations is typically no greater than the cost to rewrite a base district, they can provide protection for hazard areas, and they're often seen as less risky by property owners.

Disadvantages of overlay districts: they create an extra layer of regulations, they may inadvertently cause conflicts with regulations for the base district, and they may be confusing to the public, applicants, and enforcement officers.

We now move on to questions and answers.

Question: Are there examples of overlay districts that can promote life sciences?

Answer: Yes. For example, you might offer a density or height bonus, in exchange for using low impact development techniques.

Question: How new must a master plan be, in order to be considered valid?

Answer: Master plans should be updated every 10--12 years. Overlays should be consistent with updates to the master plan.

Question: Why not just redo the base district?

Answer: One reason is to avoid concerning property owners about potential loss of value to their property, or concerns about making their property non-conforming. Owners tend to be more receptive when they see you augmenting the set of uses allowed.

Question: Do master plans have to be approved by town meeting?

Answer: Massachusetts General Laws don't require the master plan to be approved by town meeting; it only has to be adopted by the local planning board. But there's no harm in having it approved by town meeting.

Question: What about uses in the underlying district?

Answer: The underlying uses are still allowed; the overlay just incentivizes something else.

Question: Can you give an example of an overlay district that conflicts with the underlying zoning?

Answer: One example is a use that's allowed in the base district, but would be prohibited in the overlay. For example, you might have an industrial district that allows manufacturing of chemicals. That use could conflict with a groundwater protection overlay district that prohibits such manufacturing.

Question: Could an overlay district be used to require upper-story step backs where a business districts abuts a residential district?

Answer: That's generally not a problem, as long as there's a purpose statement to make that objective clear. The purpose statement should contain a clear statement of intent.

Question: Can an overlay district be used to guide design preferences?

Answer: Yes, but you have to be very specific about what you're asking for. For example, by providing a set of design guidelines.

Question: Can an overlay district be used to prevent Marijuana uses.

Answer: In general, it would be better to use the overlay to indicate where marijuana uses are allowed. That tends to produce more predictable results than defining areas where the use is prohibited. An applicant might surprise you by proposing a marijuana use in an area you hadn't considered.

Question: Would a two-third's vote of town meeting be required for an overlay district to create affordable housing.

Answer: If the overlay meets the requirements of 40A's housing choice provisions, then you need a simple majority. Otherwise, you'll need a two-third's vote.

Question: What about an overlay for an MBTA district.

Answer: The guidelines for MBTA districts are still being finalized, but it's probably safe to assume that will require a majority vote.

Question: Could you give a few examples of bonuses that could be used in an overlay district? Maybe tax incentive financing (TIF)?

Answer: Overlay districts districts don't contemplate TIF. A TIF requires adoption by both the executive and legislative branches of a community. You could allow things like additional height and massing, reduced lot area per dwelling unit, or less open space. You can also make the bonus conditional on fulfilling a set of requirements, such as using low-impact development, LEED compliance, providing EV charging stations, or using renewable energy sources.

Question: What about enforcement?

Answer: Applicants can always seek a variance from the zoning board of appeals. They can also challenge your bylaw in court.

Question: Is it possible to do a small overlay district -- a single street corner for example? Or, would that be considered spot zoning?

Answer: Overlays should further the purpose of a master plan. You can't necessarily tie them to a specific parcel.

In closing, Mr. Robbins notes that in today's market, residential is the number one thing that developers want to build.