Massachusetts Land Use Planning (1-MA-a)
Land Use Planning Process
1-MA-a.1 – Review Land Use Plans and Zoning Regulations
The developer should check the local government website, or contact the municipal clerk, or planning board to identify and applicable land use plans, and zoning ordinances and bylaws.
A developer should ensure that the proposed project complies with adopted land use plans and zoning regulations. For more information about municipal land use and zoning regulations see: Massachusetts City and Town Ordinances and Bylaws.
1-MA-a.2 to 1-MA-a.5 – Is the Project Exempt from Municipal Land Use Regulations?
In Massachusetts, lands used by a public service corporation may be exempted from a municipal zoning ordinance Mass. Gen. Laws ch.40A, § 3. To obtain exemption from municipal zoning ordinances, a developer must petition the Massachusetts Department of Public Utilities (DPU). Mass. Gen. Laws ch.40A, § 3. Upon receipt of a petition for exemption, the DPU will give notice of a public hearing and determine if exemptions are reasonably necessary for the convenience or welfare of the public. Mass. Gen. Laws ch.40A, § 3. If the project is not exempt, a developer should consult with the appropriate local government authorities to ensure that the project is in compliance with local land use rules and regulations.
1-MA-a.6 to 1-MA-a.7 – Does the Proposed Project Require a Special Permit or Variance?
A developer may need a special permit or variance from a municipal plan or zoning regulation. The special permit or variance application (Application) or request varies by municipality. However, the review process for a special permit or variance is largely the same. Mass. Gen. Laws ch.40A, § 11.
1-MA-a.8 to 1-MA-a.9 – Review Application Materials for Completeness
The municipal permit granting authority reviews the Application materials for administrative and technical completeness.
1-MA-a.10 to 1-MA-a.12 – Publish Notice of Public Hearing
The municipal permit granting authority must hold a public hearing on an Application for special permit, or variance. Mass. Gen. Laws ch.40A, § 10 ; Mass. Gen. Laws ch.40A, § 11. The municipal permit granting authority must also publish notice of the public hearing in a newspaper of general circulation in the municipality where the land that is the subject of the hearing is located at least twice, over a two-week period. Mass. Gen. Laws ch.40A, § 11. The permit granting authority must publish the first notice at least fourteen (14) days before the date of the hearing. Mass. Gen. Laws ch.40A, § 11. At the hearing, any person may appear, comment on the permit application, and be heard.
The municipal permit granting authority must hold a public hearing on an Application for special permit within 65 days of the date that the developer filed the Application. Mass. Gen. Laws ch.40A, § 9.
1-MA-a.13 to 1-MA-a.15 – Review Application for Approval
If the permit granting authority approves a special permit or variance application, the permit granting authority must issue a copy of its decision to the developer and landowner stating the name and address of the landowner, identifying the land affected, “and certifying that a copy of the decision has been filed with the planning board and city or town clerk.” Mass. Gen. Laws ch.40A, § 11. If the municipal permit granting authority fails to take action on the Application for special permit or variance, the Application will be automatically approved. Mass. Gen. Laws ch.40A, § 11.
A permit granting authority may grant a variance upon a finding that a literal enforcement of an ordinance or by-law would impose a substantial hardship on the petitioner, and granting of a variance would not be detrimental to the public good. Mass. Gen. Laws ch.40A, § 10.
In the case of a special permit, the special permit granting authority must make a decision on the special permit within 90 days following the public hearing. Mass. Gen. Laws ch.40A, § 9. If the prescribed 90 day review period has lapsed, within 14 days, the petitioner must file notice the appropriate city or town clerk that the petitioner has sent notice to all interested parties and informed them of the applicable 20 day appeals window. Mass. Gen. Laws ch.40A, § 9.
If granted, the special permit or variance is effective upon:
- Lapse of the 20 day appeals period without a successful appeal;
- Recording in county and district in which the land is located; and
- Indexing in the grantor index or recording on the owner’s certificate of title. Mass. Gen. Laws ch.40A, § 11.
1-MA-a.16 to 1-MA-a.19 – Appeal Decision (If Applicable)
Any person aggrieved by a permit decision may appeal the decision to the zoning board of appeals (“board of appeals”) within 30 days from the date of order or decision being appealed. Mass. Gen. Laws ch.40A, §§ 8-15. To appeal a permit decision, the petitioner must file a notice of appeal stating the grounds for the appeal with the city or town clerk, and a copy thereof with the officer or board, whose decision is being appealed as well as the appropriate permit granting authority. Mass. Gen. Laws ch.40A, § 15.
Upon receipt of the notice of appeal, the appropriate officer or board must submit the record of decision to the board of appeals. Mass. Gen. Laws ch.40A, § 15. The board of appeals must hold a hearing on the appeal within 65 days from receipt of notice and must publish public notice of such hearing.
The board of appeals must issue a decision on the appeal within 100 days after the date that the appeal was filed. Mass. Gen. Laws ch.40A, § 15.
If board of appeals fails to act within 100 days, the appeal will be automatically granted.
- Note: the prescribed review period may be different for special permits. For more information see: Mass. Gen. Laws ch.40A, § 9.
Upon lapse of the prescribed review period, within 14 days, the petitioner must file notice the appropriate city or town clerk certifying that the petitioner has sent notice to all interested parties and informed them of the applicable 20 day appeals window. Mass. Gen. Laws ch.40A, § 15. The board of appeals must file a detailed record of the proceedings within 14 days of the decision in the appropriate office of the city or town clerk and provide notice to all interested parties and to every person present at the hearing who requested that notice be sent. Mass. Gen. Laws ch.40A, § 15.
If the board of appeals acts unfavorably on the appeal, the board of appeals may not act favorably upon the appeal within two (2) years after the date of its final unfavorable determination unless the applicable permit granting authority determines, either unanimously or by majority vote, that there have been material changes impacting the petition. Mass. Gen. Laws ch.40A, § 16.
Any person aggrieved by decision of the board of appeals, whether or not previously a party to the proceeding, may appeal the decision to the land court department or the superior court department in which the land is located. Mass. Gen. Laws ch.40A, § 17. For more information see: Mass. Gen. Laws ch.40A, § 17.
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