BERKSHIRE REGIONAL PLANNING COMMISSION 1 FENN STREET, SUITE 201, PITTSFIELD, MASSACHUSETTS 01201 TELEPHONE (413) 442-1521 · FAX (413) 442-1523 Massachusetts Relay Service: TTY: 771 or 1-800-439-2370 www.berkshireplanning.org KYLE HANLON, Chair NATHANIEL W. KARNS, A.I.C.P. SHEILA IRVIN, Vice-Chair Executive Director MARIE RAFTERY, Clerk CHARLES P. OGDEN, Treasurer
MINUTES OF THE REGIONAL ISSUES COMMITTEE
April 26, 2017
At Berkshire Regional Planning Commission Office 1 Fenn Street, Ste. 201, Pittsfield, MA 01201
I. Call to Order
The meeting was called to order at 4:00 p.m. by Chair Raftery.
The following Committee Members were present: Marie Raftery, Stockbridge, Chair C.J. Hoss, Pittsfield, Vice Chair Peter Bluhm, Lee Andrew Groff, Williamstown Kyle Hanlon, North Adams Sarah Hudson, Tyringham Sheila Irvin, Pittsfield Gwen Miller, Lenox
Others Present: Jacqueline Bruntjen, Eco-Genesis
Staff Present: Nat Karns, Executive Director
II. Approval of Minutes of February 22, 2017 Meeting
A motion was made by Kyle Hanlon to approve the minutes, seconded by Peter Bluhm. The minutes were approved unanimously.
III. Consider Draft Letter Supporting Airport Zoning Legislation – S.1993 (Senator Tarr)
Kyle Hanlon moved to approve the draft letter with editing corrections offered by Peter Bluhm. Seconded by Sheila Irvin.
There was no discussion. The motion was approved unanimously.
IV. Land Use Reform Legislation HD 2587 (Kulik and Peake) S. 81 (Chandler) S.94 (Rodrigues)
The Committee continued its review of the three bills from where it left off at the last meeting.
BRPC Regional Issues Committee Meeting of 4/26/2017 Page 1 Accessory dwelling unitsmust be allowed in single family dwellings on more than 5,000 square foot lots with reasonable regulations but cannot prohibit them or require a special permit. This does allow that the municipality can require that these must be owner-occupied. Probably every community would have to amend their bylaws. The consensus was to support this.
The Realtors’ bill (S.94) does much the same thing in abbreviated fashion. The Committee prefers the S.81/H.2420 language.
Going through Section 3A – must provide at least one district in which multi-family is allowed by right and mixed-use districts can count towards this. A minimum gross density of no less than 8 units per acre in rural towns and 14 units per acre in other municipalities (Pittsfield and North Adams) is required. In Pittsfield, can probably get 15-18 units per acre but in downtown they allow greater density. DHCD may waive for rural municipalities without water and sewer. Does this effect 40B at all? Not that we can ascertain. Is not “Smart Growth” to require very rural communities without services to require higher density housing.
The Committee felt that it should be with allowance for site plan review. They wondered whether towns that don’t have sewer and water shouldn’t be excluded from this requirement? Some suburban communities are deliberately not installing water and sewer in order to not have housing growth. The Committee wondered whether there wasn’t another way to get to this problem? We should suggest that for rural towns with less than some density, i.e., 250 people per acre, there be an exemption from this requirement in the legislation. It seems pointless to require waivers for places that will not have utilities. Some sort of relief valve is needed for the most rural communities.
One question is whether if DHCD has to review these, do they have to continually review them? The provision is clearly aimed at exclusionary communities. We will need to pay attention to the regulations as they are drafted. But, it is best to comment now. Site plan review should be allowed and we will suggest a cut-off point on density of rural towns.
The next provision is OSRD by right in every municipality. All three bills deal with this. The Senate version does through overlay districts. Municipalities may require a yield plan. The House version does it only for zoning districts requiring 40,000 s.f. or greater of land area per lot and any subdivision of 5 lots or more must allow for OSRD. Homebuilders bill requires cluster development by right in all residential zoning districst and prohibit requiring a yield plan.
Basically OSRD is seen as a good idea by the Committee. It allows use of land more effectively and provides common spaces. The Senate version requires every municipality to have at least one district that allows OSRD. The House version requires that large lot size districts have to allow OSRD. The Homebuilders require that it be allowed in all residential zoning districts.
The Committee discussed that this would probably require wholesale revision of zoning bylaws across the county. Those that currently exist do not seem to work very well. One member asked what is the yield calculation? There are various ways to try to determine the number of lots that the parcel being subdivided. Some bylaws use a formula approach such as assuming that 75% of the land is usable and 25% is not, and then doing the math. Others require that a sketch plan eliminating unbuildable land and right-of-way be done and then see how many lots meeting zoning requirements can be configured.
How much discretion does a planning board have to deny a subdivision? If the proposal meets all rules & regulations then review is a ministerial act and approval must be given. However, many of the subdivision rules and regulations end up requiring a waiver and those don’t necessarily have to be approved. There aren’t many high quality (from a development perspective) lands left and many of the rules and regulations force requesting a waiver. If we have adequate and up-to-date subdivision regulations, this requirement would not be a problem but such is not the case; very few subdivision rules and regulations meet current standards. Requiring that OSRD be allowed in some portion of your community, from a planner’s point-of-view is a good idea but practically may not work.
It was decided that our overall comment is that our regulations in Berkshires are antiquated and outdated, and while this may make sense conceptually but without adequate resources to fix them, this will be problematic and how they will get applied here without substantial resources is a significant open question. While we conceptually agree with requiring some provision for OSRD, we have considerable concerns over how it can be implemented in the Berkshires.
Both the Senate and House bills allow for amendment of zoning bylaws may be adopted by less than a supermajority vote but this is a local option. Anything between a simple majority and a supermajority would be allowed as a local option. The Committee supports that.
BRPC Regional Issues Committee Meeting of 4/26/2017 Page 2 If a municipality doesn’t approve zoning that allows multifamily housing by right in at least one zoning district that meets the density requirements required above, or doesn’t allow OSRD as required above, then and amendment that does meet those requirements is by simple majority vote, regardless of the vote requirement in the bylaw or ordinance.
The Committee felt that this raised a number of significant procedural questions and would lead to a lot of confusion, particularly at town meetings. For instance, does that happen at the same meeting? There needs to be an intermediate step of a finding by some authority (DHCD?) that the bylaw, if approved, would meet the requirement and that since it failed on a supermajority vote, it now must be considered by majority vote. If this was attempted at a single town meeting (or probably even city council meeting) there would be considerable confusion. It would be more straightforward to simply legislatively require that any votes to implement this section are strictly by simple majority vote and avoid this complicated and problematic process.
The Committee agreed with the language that the Planning Board should include in its report on any proposed zoning change regarding its consistency with the community’s master plan, if there is one.
The Committee supports that a vote to change the voting majority for zoning should not take effect for six months after the vote to allow that change.
There are three amendments in both the Senate and House bills which deal with when a building or special permit is affected by a bylaw change. The existing language states that the previous zoning will apply if you have a permit issued before the first public notice of the pending bylaw change. The amended language is that if a complete application is submitted prior to the publication of the notice, then the existing zoning applies and, if the permit is ultimately approved, then the construction must be commenced within two years for work under a building permit and three years for work under the special permit.
The Committee, after considerable discussion, was concerned that applicants who submitted for permits in the time after publication of the public notice but prior to the decision on the zoning change were in limbo and that language was needed that makes clear that their application cannot receive approval until after the vote on the bylaw change but some time limit must be set on taking that vote.
The Committee agreed with the two sections which eliminate repeated references to “January 1, 1976” and which protects subdivision plans submitted prior to any public hearing on new zoning which might affect them.
The House bill strikes both the 3 year vesting of Approval Not Required Subdivision Plans and the language that freezes every aspect of zoning for land shown on an ANR plan. The Committee supports both those changes.
The House bill adds language that allows Form-based Zoning. While the Committee does not believe this is necessary, it supports it.
The Homebuilder’s bill adds language that special permits run with the land are not personal to the applicant or property owner. After considerable discussion, and agreement that in practice most of our permits are handled in this way, the Committee decided it did not need to comment on this.
The Homebuilder’s bill requires that every community must provide at least 1.5% of its land area for multi-family by- right with a density no less than 20 units per acre. The Committee opposes this provision
Both the House and Senate bills remove seven paragraphs in the existing legislation dealing with Special Permits, specifically those pertaining to multi-family, transfer of development rights, cluster development (OSRD) and shared elderly housing. Most of these are dealt with in the legislation, either by requiring their use without special permit or allowing their use. The Committee supports these changes.
The Homebuilder’s bill drops “cluster development” as being allowed only by special permit. The Senate and House bills already deal with this.
The Homebuilder’s bill requires that cluster development be allowed by right in all residential zoning districts, does not allow requirement for submission of a yield plan to establish how many lots might be built on a property utilizing standard lot sizes. The Committee opposes this language.
BRPC Regional Issues Committee Meeting of 4/26/2017 Page 3 Both the Senate and House bills deal with options for the voting requirement for special permits, allowing more flexibility in whether they are by supermajority or simple majority. The Senate version keeps the supermajority in place, unless the community votes to allow it by less than that; the House makes it by simple majority, unless the community votes to require a supermajority. The Committee prefers the Senate approach of the supermajority vote for Special Permits is retained, unless the community votes to go to a simple majority.
The Senate bill extends the period for Special Permits to be exercised from 2 to 3 years. This was done in the Municipal Modernization bill that was passed last year and does not seem to be necessary any longer.
The House bill contains language changes in Section 9 that we cannot find.
The Homebuilders bill requires approval of special permits by a simple majority of the permit granting authority members “then in office.” The Committee opposes this amendment.
Both the Senate and House bills allow for site plan review and the language is the same. The Committee supports explicit provision for site plan review in the law. The stipulation in the bills that only adverse impacts on properties and public infrastructure within 300 feet is problematic. Some impacts such as noise and lighting can easily exceed 300 feet, sometimes to a much greater distance. If the intent is to make things more predictable for developers, they may in fact end up with more uses requiring special permits as a way to protect the community. If a distance limitation is put in the law, it probably needs to allow for a greater distance as somebody relatively far away may be impacted.
The Homebuilder’s bill precludes site plan review if the applicant is undergoing special permit or variance review and the reviewing authority can only impose conditions to which the applicant agrees. No separate site plan review process can be required if it is submitted as a special permit or variance. The Committee opposes this language. Variances should not be a site plan consolidated process trigger. And the applicant should not be given a veto authority over site plan conditions. It does make sense to require that special permit and site plan processes be consolidated in one review.
The committee determined it would continue its review at the next meeting.
V. Next Committee Meeting Date, Time & Topic
The Committee will next meet on Wednesday, May 17th at 4 p.m.
VI. Adjournment
Upon a motion by Kyle Hanlon, which was seconded by Sheila Irvin, the meeting was adjourned at 6:10 p.m.
Material Sent or Provided to the Committee . Agenda for 4/26/2017 Meeting . Table on elements of S.81, H.2420, and S.94 – land use reform legislation
BRPC Regional Issues Committee Meeting of 4/26/2017 Page 4