Massachusetts Zoning Overhaul Winding Its Way Through Legislature, Its Future Unclear

By David McCay and Brian Casaceli

State HouseIn an earlier post in February, we reported on House Bill 1859, “An Act Promoting the Planning and Development of Sustainable Communities.”  The bill would make dramatic changes to Massachusetts zoning law and significantly alter residential and commercial development in the Commonwealth.  Click here for a summary of the bill.  Given the significance of the changes, it is not surprising that our readers have been asking about the bill’s status.

On May 14th, the first hearing on H.1859 was held by the Legislature’s Joint Committee on Municipalities and Regional Government.  At the hearing, over three hours of testimony were given in support of the bill, with only two speakers opposing.  One of those backing the bill was Aaron Gornstein, the Undersecretary for Housing and Community Development, who expressed his support for some of the bill’s key provisions including the ability of communities to vote to “opt-in” on a state strategy called “Planning Ahead for Growth.”

A community could “opt-in” by agreeing to certain zoning changes, such as the preservation of open space in subdivisions and other developments, the protection of water quality in development projects, and the use of Low Impact Development techniques.  In return, that community would receive additional benefits, including preference for state funding and grants.  According to Gornstein, the “opt-in” provision would “establish as a matter of state law the principle that our communities ought to do their local planning and zoning consistent with the state’s sustainable development principles, a concept that is long overdue in Massachusetts.”

Others, including Toby Fisher, the Executive Director of the Massachusetts Public Health Association, submitted written testimony in support of the bill.  In his letter, Fisher makes the point that the legislation is a top public health priority for communities because, “smart zoning codes can promote the orderly and sustainable growth, development, redevelopment, conservation, and preservation of a city or town.”  According to Fisher, better zoning practices can encourage smarter growth, reduce pollution, and encourage healthy lifestyles.

Andre Leroux, the Executive Director of the Massachusetts Smart Growth Alliance, and State Senator Dan Wolf, one of the lead sponsors of the bill, recently wrote an op-ed piece in the MetroWest Daily News in support of the bill.  According to Leroux and Wolf, the bill would “make it quicker and cheaper for communities to decide where to sensibly grow by making master planning optional and more flexible.”  The permitting process would become more rational for developers and the community where instead of having to navigate their way through all of the local boards individually, developers would be able to submit a “common application to all the boards simultaneously and be granted a joint public hearing within 45 days of filing.”

Addressing one of the bill’s more controversial provisions, Leroux and Wolf note that the bill would reform “Approval Not Required” (ANR) development by allowing a municipality to replace ANRs with an “expedited review process to minimize haphazard development and preserve important landscapes in our communities.”

The bill still has a long way to go before it reaches the Governor Patrick’s desk.  The Joint Committee must now decide whether to report the bill favorably, unfavorably, or report that it should be further studied.  Based on the support the bill has received so far (the bill also has 58 co-sponsors in the House), we expect the committee will report the bill favorably, at which point it will travel back to the Clerk’s office where it will receive the first of three necessary readings.

Check back at On Solid Ground for continued updates on the status and progress of H.1859.

N.B.  A special thanks to my co-author, Brian Casaceli, who we are lucky to have as a summer associate this year at Mirick O’Connell.

About David McCay

Dave is a partner in Mirick O'Connell's litigation group where he assists clients in the resolution of complex real estate, environmental and business disputes. Dave is a member of the Board of Directors of the 495 / MetroWest Partnership, the Advisory Board of the MetroWest Economic Research Center at Framingham State University, and is Chair-Elect of the Marlborough Regional Chamber of Commerce. He lives in Southborough with his wife and son.
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One Response to Massachusetts Zoning Overhaul Winding Its Way Through Legislature, Its Future Unclear

  1. berkie382 says:

    Reblogged this on Massachusetts Real Estate Law and Development News and commented:
    Mirick O’Connell’s David McCay and summer associate Brian Casaceli provide an excellent update on the progress of H.1859, “An Act Promoting the Planning and Development of Sustainable Communities.” It seems that, at least early on in the House debates, there is plenty of support for the bill and hopefully it’s passing is imminent.

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