The Feb. 18 Halifax Planning Board meeting began with Attorney Amy Kwesell present to discuss drafting a defendable decision with regard to site plans and special permits and answer any pertinent questions in order to better inform new Board members and refresh older ones. She also presented on the Housing Choice Act of 2020. Some of the Zoning Board of Appeals (ZBA) members were also on the call. Kwesell has been practicing law for 21 years with a special interest in land use and is a teacher for the Continuing Legal Education and Zoning Conference.
Kwesell explained the Housing Choice Act of 2020 as part of the legislation that included the budget. “What this does to municipalities is they have some mandatory definitions… but one of the most important things is that they require multi-family housing in MBTA communities and Halifax is a MBTA community,” Kwesell explained. “A MBTA community has to have a district of reasonable size for multi-family housing permitted as of right; there can be no age restrictions and it has to be suitable for families with children… it has to be within a half mile of a commuter rail station,” she further explained.
If a community fails to adopt multi-family housing then they will no longer be eligible for grants through the Commonwealth including but not limited to Mass Works, Local Capital Project Fund, and Housing Choice Initiatives.” The MassDOT Complete Streets Funding Program is one such grant. The program provides technical assistance and construction funding to eligible municipalities.
Later in the meeting, Chair Alan Dias said that the Complete Streets Program had been submitted by the Board to the Highway Surveyor. He said that once past that part of the process, he would expect to hear from a representative of the program regarding which projects would make the cut. Board member Amy Troup asked, “Won’t we have to enact the new bill to be eligible for it?” Dias responded saying, “If we do not have some zoning districts that we will not be eligible; we’re eligible for the Complete Streets as of now under this program. If we don’t do something whenever the legislature agrees to give us whatever time frame, then we won’t be eligible after that but right now I believe that those funds have been sort of set aside depending on what we pick.”
The Department of Housing and Community Development (DHCD) and MBTA will be developing parameters for multi-family housing. Kwessell said she was advising that towns not make changes to zoning until the parameters are released. Kwessell called the Act “not well thought out.”
She said the Act also allows for certain bylaws to be enacted without the two-thirds vote at town meeting. Additionally, some special permits can be granted with a simple majority rather than the normally required four-fifths.
Kwessell began her presentation on site plans saying that when an application comes before the Board, it is important to understand which bylaw is at issue. She said that the Planning Board has special permits for which they are the Site Plan Granting Authority (SPGA) while other special permits are granted by the ZBA. An SPGA may be the Planning Board, the ZBA, or the Board of Selectmen. Regarding site plan approval, Kwessell said, “the purpose is not to regulate the use, it’s to regulate how that use is implemented… there’s been no land court decision that upholds the denial of a site plan for an as of right use… you can’t deny it, you can condition it.” She continued, “With the special permit process there is discretion so there is a difference between special permit and site plan approval.”
When a site plan review application comes in, the Board is required to circulate it to all of the various Boards that need to see it. Next steps would be conducting the public hearing where the Board has quorum, close the public hearing, deliberate, and then vote. During the public hearing, public participation is allowed though it may be limited by time constraints. “Best practices for just conducting these hearings, you want to be respectful to the applicants and the public; you want to keep an open mind, avoid conflict of interests. If there are any conflicts, any question of conflicts, you can always call the attorney of the day,” she said. She also said that an extension from the applicant must be in writing and must provide enough time for all necessary steps to be made. “You want to perfect the decision which is sending it to the Town Clerk’s office,” Kwessell explained. Kwessell said if a motion is made to approve the decision and it fails, the project is denied and it is not necessary to take a vote to deny the project. All decisions must be recorded and filed with the registry.
Once an application is filed with the Town Clerk, it is dispersed to the Planning Board, the Board of Health, the Building Inspector, the Highway Surveyor, the Water Commissioners, the Zoning Administration, the Board of Appeals, the Conservation Commission and the Board of Selectmen. The various Boards then have 30 days to submit feedback to the Planning Board. The Planning Board must explain any divergence from the other Boards’ recommendations in their decision. “The courts have held that for a use allowed as a right, a Board may deny site plan approval only in situations where a plan is seriously deficient in important elements or is ‘so intrusive on the interests of the public in one regulated aspect or another that rejection of the Board would be tenable,’” Kwessell read to the Board.
Kwessell described a special permit as serving to “regulate that special middle tier of uses.” She continued, “There’s uses that are so offensive they’re prohibited and then those that are you know very innocuous and they’re allowed, so then you have this middle section that’s what I consider special permits.” A special permit cannot be refused for reasons that are not in the bylaw and the statute is not more detrimental. Kwessell also added that you cannot base your decision on the applicant but rather on the project. If there are already special permits issued that impact the neighborhood, the Board is not allowed to deny what Kwessell referred to as “the last guy” if the impact is of the same caliber as previous ones.
For a special permit, a public hearing is required within 65 days of filing and a decision within 90 days. For a five-member Board as in Halifax, special permits require that four out of the five vote in favor. The public hearing must be published at least fourteen days out from the hearing.
Following Kwessell’s presentation, Board member Gordon Andrews asked what the role of the Planning Board was in site plan enforcement. “Under your bylaw the enforcement is by the Building Inspector or a designee designated by the Board of Selectmen,” Kwessell said. “So the Planning Board doesn’t go out and police it?,” Andrews reiterated. “No,” Kwessell said.
Michael Joyce with Joyce Consulting Group, who was representing Brookside Construction, met with the Board regarding 300 Plymouth St. Joyce showed the proposed site plan which included the intersection of Plymouth St. and Monponsett St. He said there were six commercial units in the building including Verizon and a bike shop. He said they were proposing a solution to correct a drainage issue that would entail collecting all the stormwater the same way, put new pvc but then bring it out below grade at the curb line to two infiltration areas. Stormwater had been going into the building during some larger storm events. Board member Rick Perry said, “It makes perfect sense to me what they are trying to do there.” Dias recommended that they go before the Conservation Commission as well. Andrews disagreed as wetlands weren’t involved saying it did fall under the purview of the Planning Board to take it under advisement. Dias wished to clarify who did have purview over stormwater management.
The Board also discussed 0 Monponsett St. “If you go down 58 toward Plympton on the left-hand side there’s some concrete blocks there and it’s listed as 0 Monponsett St. and it looks like there’s a stump dump going on in the back,” Andrews explained. He further said that there was a gravel operation and a loom operation with trucks going in and out. Andrews said he had received numerous calls questioning what was going on, what the hours are, and where the site plans are. “There’s a business operation there and it doesn’t look like there’s a site plan,” he explained. Dias asked Andrews for more information and Andrews said he would get a lot number and a map. Dias seemed to think it might better fall under the purview of the Zoning Enforcement Officer.
At the end of the meeting, there was significant disagreement over the meeting minutes from October 15 and whether or not Troup had approved the version that were sent to the town clerk. Planning Board secretary Jo-Anne Snow said that she didn’t make any edits to the minutes that were approved though Troup seemed to feel that a line had been deleted about using Chapter 90 money being spent on engineering to apply for grants. Troup asked that the removal be added back in and everyone on the Board re-sign the minutes. Dias recommended tabling the conversation as all the members that had previously approved the minutes were not present. Troup said, “We do not need a re-vote, what we need is for that to be put into the minutes and that is all that needs to happen.” “We’ll just move that off to our next meeting,” Dias finally concluded after quite a bit of back and forth.