PLANNING BOARD’S POSITION ON CITIZENS PETITION TO CHANGE AUTHORITY OVER SITE PLAN REVIEW

FROM ZONING BOARD OF APPEALS TO PLANNING BOARD

On November 17, 2014, a Citizens Petition was filed with the Town Clerk seeking to amend the Town bylaws to change authority over Site Plan Review from the Zoning Board of Appeals to the Planning Board. The Planning Board held a Public Hearing on this Petition on January 20, 2015. The Planning Board unanimously endorses the Petition. This is not to be viewed as any criticism of the Zoning Board of Appeals or any of its members. Rather, there are valid and objective reasons for the change.

A. Background

Section VI.H. of the zoning bylaw governs Site Plan Review (“SPR”) in Hamilton. SPR is a town planning method to protect the Town from development inconsistent with its best interests. Section VI.H.1. states the purpose of SPR as follows:

Site Plan Review is intended to allow the Town to review and impose reasonable conditions on development, allowed as of right or by Special Permit, which by its nature or location has the potential for significant impacts on traffic circulation, public safety, public utilities, environmental and neighborhood character and appearance. The purpose is to provide a mechanism and a process for fitting the proposed development to neighborhood character, scale, and infrastructure, and to reasonably protect the Town and abutting property owners from potential negative impacts.

SPR applies to a wide variety of new construction, alteration and expansion of buildings used for business, office, industrial, institutional and multifamily purposes, as well as certain parking lots and building interiors. Section VI.H.2.

Authority over SPR is presently held by the Zoning Board of Appeals pursuant to zoning bylaw IX.D.

B. Reasons the Planning Board Supports the Citizens Petition

The Planning Board supports the Citizens Petition for the following reasons.

1. SPR is a land use issue. The Planning Board was elected to oversee land use issues in Hamilton. Thus, it is logical that it should have the authority over SPR in the first instance, with appeals of its decisions heard by the Zoning Board of Appeals.

2. There is efficiency in having the Planning Board oversee SPR in the first instance. The present process is for the applicant to first appear before the Planning Board, which hears from the applicant, considers the issue and then makes recommendations on the application to the Zoning Board of Appeals. The applicant must then appear before the Zoning Board of Appeals, which holds its own hearing, considers the issue, considers the Planning Board’s recommendations, and makes the final decision. It would be more efficient and less burdensome to applicants to have SPR occur before one board instead of two.

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3. The Zoning Board of Appeals should be just that: a board of appeals. Having theZoning Board of Appeals make the SPR decision in the first instance leaves the applicant with nowhere to go except the courthouse if they are dissatisfied with the Zoning Board of Appeal’s decision. It is fairer to the applicant to have a lower cost appellate remedy instead. Applicants should be able to appeal to another Town board before having to resort to the court.

4. Having the Zoning Board of Appeals act as an appellate board may also save the Town legal fees. If the applicant has recourse to a Town appellate board it may not file an action in court, which would save the Town litigation costs.

5. The amendment suggested by the Citizens Petition is consistent with the way the vast majority of towns in Massachusetts operate.

6. The amendment suggested by the Citizens Petition is consistent with the Town’s Master Plan. The Master Plan questions the wisdom of having SPR overseen by the Zoning Board of Appeals. The reason has nothing to do with the ability of ZBA members to make proper decisions for the Town as individuals, but rather is geared toward the normal assignment of that role throughout Massachusetts and the logic of having that authority with the Planning Board while appellate authority rests with the Zoning Board of Appeals. The Land Use Regulations Portion of the Master Plan addresses this on page 18, and states the following:

Roles and responsibilities. Hamilton’s division of permit granting responsibilities between the Planning Board and the Zoning Board of Appeals is very unusual. Unlike most communities, Hamilton has assigned site plan review to the Zoning Board of Appeals. Presumably the Town made its choice because the Zoning Board of Appeals issues most of Hamilton’s special permits, but the Planning Board also has authority to issue special permits. The generally preferred division of permit granting powers assigns site plan review and special permits to the Planning Board, and to the Zoning Board of Appeals special permits for nonconforming uses, appeals of building inspector decisions and site plan review conditions, and the issuance of variances and comprehensive permits. Each board has an important role to play in land use regulation, but their roles are not the same. Hamilton’s present system complies with the state zoning act, but it increases the risk of inconsistent interpretations of the zoning bylaw and reduces the Planning Board’s role in a traditional planning function: site plan review.

7. The Master Plan also recommends the Town hire a full time town planner to assist the Planning Board and other town officials with SPR, among other things. (page 138, third recommendation). The Town has now hired Patrick Reffett for this position. In light of the specific recommendations in the Master Plan and the hiring of Mr. Reffett, the Planning Board believes now is the proper time to transfer SPR to the Planning Board.

8. Finally, the Planning Board is an elected board, whereas the Zoning Board of Appeals is appointed. Thus, there is greater electoral accountability for decisions on SPR applications.

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