RE16RC13: Zoning & Building Codes

Approved on Aug. 7, 2013

I. ZONING

A. M.G.L. c. 40A – The Zoning Act. Widely referenced as merely “40A”. Enabling law allows local communities to create zoning bylaws and ordinances under their police powers. Includes procedures for special permits, variances, appeals and public notification.

B. Local Zoning – Massachusetts, all zoning is local

1. Each community adopts its own unique zoning bylaw

2. Zoning bylaws typically create zoning districts for residential, commercial and industrial uses

3. Zoning regulates use of land and buildings and directly impacts value

C. Purpose of Zoning - to protect the health, safety, and general welfare of the community

D. Zoning authority with city council, board of selectmen or equivalent

E. Attorney General required to review all legislative actions taken by 351 cities and towns as to general, zoning and historic bylaws.

F. Massachusetts’ 13 regional land planning commissions

G. Floodplain zoning

II. ENFORCEMENT - M.G.L. c. 40A, § 7

1. Zoning Enforcement Officer or Building Inspector/Commissioner
2. Superior Court and Land Court have jurisdiction

III. ZONING LIMITATIONS – contained in 40A

1. Limitations related to uses such as agriculture, horticulture, floriculture, viticulture, day care facilities, educational and religious institutions, public service corporations and congregate living facilities for the disabled;
2. Restrictions of building materials regulated by state building code;
3. Restrictions on interior area of single-family homes;
4. Restriction on all commercial development
5. Restrictions precluding homeowner from placing manufactured home on the site of residence damaged or destroyed by fire or natural disaster for up to one year;
6. Setbacks and open space limitations which preclude disability access ramps on private property for the purpose of facilitating a physically disabled person;
7. Prohibition to unreasonably regulate installation solar energy systems;
8. Prohibition to preclude construction or use of an antenna structure by a federally licensed amateur radio operator.

IV. BOSTON ENABLING ACT - M.G.L. c. 665 of Acts of 1956

40A excludes Boston, which has own Enabling Act. Similar to 40A but with differences.

1. Establishes two zoning authorities – Zoning Commission and Zoning Board of Appeal.
2. Identifies constituency groups whose members must be included on two zoning boards.
3. Mayor required to select members for both zoning boards from candidates nominated by:
   1. AFL-CIO,
   2. Greater Boston Real Estate Board,
   3. Greater Boston Chamber of Commerce,
   4. Contractor’s Association,
   5. Architecture societies within the city.
   6. Three members must represent neighborhood associations.
4. Boston City Council has no role in zoning.

V. PRE-EXISTING/NONCONFORMING USE-M.G.L. c. 40A, §6

A. Zoning not retroactive - Building lots, structures and uses pre-existing zoning may be grandfathered and not subject to new and more restrictive zoning.

B. If zoning changed to more restrictive, property deemed a pre-existing nonconforming use and lot, building or special permit is grandfathered.

C. Grandfathered status may apply to reconstruction of a structure or different or expanded use of property.

D. 40A specifically grandfathers any lot for single and two-family residential use of minimum area of 5,000 square feet and 50 feet frontage not held in common ownership with adjacent land.

E. Non-use of commercial non-confirming property for two years may require a special permit subject to decision by zoning enforcement officer.

VI. STATUTE OF LIMITATIONS - M.G.L. c. 40A, §7

1. Six years for illegal or mistaken zoning structures and uses
2. 10-years any requirement to compel removal, alteration or relocation of structure built without a building permit.

VII. SOLAR ACCESS - M.G.L. c. 40A, §9B

1. 40A encourages use of solar energy and protection of solar access.
2. Solar energy systems may be exempted from setback, building height, and roof and lot coverage restrictions.
3. M.G.L. c. 184, §23C prohibits restrictions on solar devices.

VIII. OVERLAY DISTRICT

Overlay district is district superimposed over one or more zoning districts or parts of districts imposing specified requirements or providing opportunities in addition to those otherwise applicable for the underlying zone.

IX. ZONING BOARD OF APEALS (ZBA)-M.G.L. c. 40A, §§ 12, 14

Authority in 40A for cities and towns in the Commonwealth to maintain a ZBA. In absence of a ZBA, board of selectmen or city council serves in that capacity. Mayor or selectmen appoint ZBA members.

A. ZBA has power to hear and decide:

1. Appeals based upon a rejection of a building permit application;
2. Applications for special permits;
3. Petitions for variances;
4. Appeals from decisions of a zoning administrator, if such a position exist in the community.

B. If ZBA acts unfavorably, petitioner barred from returning to ZBA on same issue for two years except with approval of the planning board.

C. Right to appeal decision to Superior Court or Land Court.

D. ZBA is local board to review applications under the Massachusetts Comprehensive Permit Law (M.G.L. c. 40B, §§ 20-23).

E. Variance - With public hearing ZBA has statutory power to grant variance from existing zoning ordinances based upon circumstances of hardship.

F. Special Permit - 40A defines many allowed uses for the issuance of special permits. Special permit may impose conditions, safeguards and limitations on time or use. (M.G.L. c. 40A, § 9)

X. PLANNING BOARD - M.G.L. c. 41, § 81A

A. Boston - In lieu of Planning Board, Boston vests all planning responsibilities in Boston Redevelopment Authority (BRA). BRA a quasi-independent public agency charged with overseeing planning and economic development.

B. Small Towns - If towns do not maintain a Planning Board, Board of Selectmen act in this capacity.

C. Board of Survey – An old alternative name for Planning Board

D. Comprehensive Plan (Master Plan) including the city/town official map is one of two primary functions of Planning Board.

1. Legal basis for master planning M.G.L. c. 41, § 81D.
2. Law requires interactive public process.
3. Master Plan is fluid, on-going process never achieving finality.

E. Subdivision control – one of two primary functions of Planning Board

1. Regulated by M.G.L. c. 41, §§ 81K - 81GG - The Subdivision Control Act.
2. Subdivision Control Act does not apply to Boston.
3. Approval-Not-Required (ANR) - M.G.L c. 41, §§ 81L, 81M, 81P Land may legally be divided if all new lot(s) comply with lot size and frontage requirements of existing zoning.

F. Purposes of the Subdivision Control Act - M.G.L. c. 41, § 81M

1. Protecting safety, convenience and welfare of inhabitants;
2. Regulating, planning and construction of roads;
3. Ensuring sanitary conditions;
4. Providing for parks and open space;
5. Adequate access to all of lots;
6. Lessening congestion in subdivision and adjacent public ways;
7. Reducing danger to life and limb in operation of motor vehicles;
8. Securing safety in fire, flood, panic and other emergencies;
9. Insuring compliance with applicable zoning ordinances, bylaws;
10. 0. Securing adequate provision for water, sewerage, drainage, underground utility services, fire, police, municipal equipment, and street lighting;
11. 1. Coordinating ways within subdivision with each other and with the public ways and with ways in neighboring subdivisions;
12. 2. Encourage use of solar energy and protect access to direct sunlight of solar energy systems.

XI. 40B - Regional Planning Law - M.G.L. c. 40B (40B)

1. Widely referenced as merely “40B”.
2. Perhaps better known as the Anti-Snob Zoning Act.
3. Provides developers of affordable housing opportunity to bypass local regulations.
4. M.G.L. c. 40B, §§ 20-23 known as the Comprehensive Permit Law.
5. Municipality with less than ten percent of total housing stock qualifies as affordable.
6. Only small percent of cities and towns meet ten percent standard.
7. ZBA is local approval agency.
8. ZBA can approve affordable housing developments under flexible rules if at least 20-25 percent of new dwelling units have long-term affordability restrictions.
9. 40B is viewed as both a blessing and a curse.
10. Community Preservation Act alternative for affordable housing.
11. Under 40B, ZBA can approve higher density development projects then normally allowed.
12. Housing Appeals Committee (HAC) - M.G.L. c. 40B, §§ 22, 23 – Created by 40B to review appeals.
    1. The appeal within 20 days of notice of decision by ZBA.
    2. HAC must promptly notify the ZBA of the appeal.
    3. Within ten days of notice from HAC, ZBA must transmit copy of its decision and reasons to the committee.
    4. HAC must hear appeal within 20 days.
    5. HAC must provide written decision based upon majority vote within 30 days after termination of hearing.
    6. HAC decision may be appealed to Superior Court.

XII. BUILDING CODE – 780 CMR - MA State Building Code

1. Statewide building code
2. State building code written by the State Board of Regulations and Standards.
3. Administered locally by board-certified building inspectors.
4. Every city and town must comply with the minimum requirements.
5. Legislature essentially eliminated local building codes.
6. State building code supersedes any local building code bylaws.
7. Stretch Energy Code - appendix to state energy code, adopted at option of cities and towns.
8. Issuance of the building permit conditioned on compliance with local zoning laws.
9. Every municipality required to appoint building inspector or building commissioner to administer and enforce state code (M.G.L. c. 143, § 3)
10. Certificate of Occupancy - Building inspector required by state building code to issue Certificate of Occupancy once all inspectors have signed off that all building codes have been complied with and the property is safe for use or habitation.
11. Fire chief is inspector in regard to smoke and carbon monoxide detectors.
12. Types of Construction
    1. A demolition permit may be required depending upon scope of work.
    2. Renovation – construction activity within an existing footprint
       1. May require Board of Health approval if additional bedrooms are proposed and the residence is served by a septic system.
       2. May require approval from Historic Commission if the structure is within a historic district and the work involves windows, doors, siding, etc.
    3. Addition – construction activity that expands the existing footprint of a building or expands the square footage by adding additional interior or exterior usable square footage.
       1. May require Board of Health approval if additional bedrooms are proposed and the residence is served by a septic system.
       2. May require approval from Historic Commission
       3. May require approval of a Conservation Commission if wetlands are within 100’ of the property or if the community has a wetlands bylaw.
       4. May require multiple permits from local departments of public services for:
          1. Street opening
          2. Water service
          3. Sewer service
          4. Trench permits