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HomeMy WebLinkAbout2012-03-20 Planning Board Supplemental Materials (132) 77 PROCESS FOR APPROVING BUILDING LOTS LACKING ADEQUATE FRONTAGE _______________________________________________________________________________ Frequently a landowner wishes to create a building lot which will not meet the minimum frontage requirement of the local zoning bylaw. As a Building Inspector, or member of a Planning Board or Zoning Board of Appeals, you have probably been asked by a local property owner what he or she must do to get approval for a building lot which does not meet the frontage requirement specified in the local zoning bylaw. In Seguin v. Planning Board of Upton, 33 Mass. App. Ct. 374 (1992), the Massachusetts Appeals Court reviewed the process for approving building lots lacking the necessary frontage. The Seguins wished to divide their property into two lots for single family use. One lot had the required frontage on a paved public way. The other lot had 98.44 feet of frontage on the same public way. The Seguins applied for and were granted a variance from the 100 foot frontage requirement of the Upton Zoning Bylaw. Upon obtaining the variance, the Seguins submitted a plan to the Planning Board seeking the Board's endorsement that approval under the Subdivision Control Law was not required. The Planning Board denied endorsement on the ground that one of the lots shown on the plan lacked the frontage required by the Upton Zoning Bylaw. Rather than resubmitting the plan as a subdivision plan for approval by the Planning Board pursuant to Section 81U of the Subdivision Control Law, the Seguins appealed the Planning Board's denial of the ANR endorsement. Whether a plan requires approval or not rests with the definition of "subdivision" as found in MGL, Chapter 41, Section 81L. A "subdivision" is defined in Section 81L as the "division of a tract of land into two or more lots," but there is an exception to this definition. A division of land will not constitute a "subdivision" if, at the time it is made, every lot within the tract so divided has the required frontage on a certain type of way. MGL, Chapter 41, Section 81L states that a subdivision is: the division of a tract of land into two or more lots...[except where] every lot within the tract so divided has frontage...of at least such distance as is then required by zoning...ordinance or by-law if any...and if no distance is so required, such frontage shall be of at least twenty feet. 78 The only pertinent zoning requirement for determining whether a plan depicts a subdivision is frontage. The Seguins argued that the words "frontage...of at least such distance as is then required by zoning...by-law" should be read as referring to the 98.44 foot frontage allowed by the Zoning Board's variance, with the result that each lot shown on the plan had the required frontage. In making their argument that their plan was entitled to an ANR endorsement, the Seguins relied on previous court cases which had held that the required frontage requirement of the Subdivision Control Law is met when a special permit is granted approving a reduction in lot frontage from what is normally required in the zoning district. In Haynes v. Grasso, 353 Mass. 731 (1968), the court reviewed a zoning bylaw provision which had been adopted by the town of Needham. The bylaw empowered the Board of Appeals to grant special permits authorizing a reduction from the minimum lot area and frontage requirements of the bylaw. Before granting such special permits, the Board of Appeals had to make one of the following findings: a. Adjoining areas have been previously developed by the construction of buildings or structures on lots generally smaller than is prescribed by (the bylaw) and the standard of the neighborhood so established does not reasonably require a subdivision of the applicant's land into lots as large as (required by the bylaw). b. Lots as large as (required by the bylaw) would not be readily saleable and could not be economically or advantageously used for building purposes because of the proximity of the land to through ways bearing heavy traffic, or to a railroad, or because of other physical conditions or characteristics affecting it but not affecting generally the zoning district. The Board of Appeals granted a special permit which authorized the creation of two lots having less lot area and frontage than normally required by the zoning bylaw. On appeal, it was argued that the creation of the two lots was a matter within the jurisdiction of the Planning Board because the division of land creating lots lacking the necessary frontage was governed by the Subdivision Control Law. The court ruled that the Planning Board did not have jurisdiction as there was no subdivision of land requiring approval under the Subdivision Control Law. The court found that the requirement that each lot has frontage of at least such distance as required by the zoning bylaw was met by the granting of the special permit. The court further noted that this was not a variance from the zoning law but a special application of its terms. 79 The court reached the same conclusion in Adams v. Board of Appeals of Concord, 356 Mass. 709 (1970), where the Concord Zoning Bylaw authorized the Board of Appeals to approve garden apartment developments having less than the minimum frontage requirement of the bylaw. The court found that a lot, having less frontage than normally required by the zoning bylaw but which has been authorized by special permit, met the frontage requirement of the zoning bylaw and the Subdivision Control Law. Since the reduced frontage for the garden apartment plan had been approved by special permit, the Planning Board was authorized to endorse the plan approval not required. The distinction in the Seguin case was that the Seguins received a variance to create a lot lacking the frontage normally required by the zoning bylaw. The court found that a plan showing a lot having less than the required frontage, even if the Zoning Board of Appeals had granted a frontage variance for the lot, was a subdivision plan which required approval under the Subdivision Control Law. In holding that the Seguins' plan was not entitled to an approval not required endorsement from the Planning Board, the court noted its previous decision in Arrigo v. Planning Board of Franklin, 12 Mass. App. Ct. 802 (1981). In that case, the court analyzed the authority of a Planning Board to waive strict compliance with the frontage requirement specified in the Subdivision Control Law. Landowners, in Arrigo, wished to create a building lot which would not meet the minimum lot frontage requirement of the zoning bylaw. The minimum lot frontage requirement was 200 feet, and the minimum lot area requirement was 40,000 square feet. They petitioned the Zoning Board of Appeals for a variance and presented the Board with a plan showing two lots, one with 5.3 acres and 200 feet of frontage, and the other lot with 4.7 acres and 186.71 feet of frontage. The Board of Appeals granted a dimensional variance for the lot which had the deficient frontage. Upon obtaining the variance, the landowners applied to the Planning Board for approval of a plan showing the two lot subdivision. The Planning Board waived the 200 foot frontage requirement for the substandard lot pursuant to the Subdivision Control Law and approved the two lot subdivision. MGL, Chapter 41, Section 81R, authorizes a Planning Board to waive the minimum frontage requirement of the Subdivision Control Law provided the Planning Board determines that such waiver is in the public interest and not inconsistent with the intent and purpose of the Subdivision Control Law. As stated earlier, the minimum frontage requirement of the Subdivision Control Law is found in MGL, Chapter 41, Section 81L, which states that the lot frontage is the same as is specified in the local zoning bylaw, or 20 feet in those cases where the local zoning bylaw does not specify a minimum lot frontage. In deciding the Arrigo case, the Massachusetts Appeals Court had the opportunity to comment on the fact that the Planning Board and the Zoning Board of Appeals are faced with different statutory responsibilities when considering the question of creating a building lot lacking minimum lot 80 frontage. Although MGL, Chapter 41, Section 81R gives the Planning Board the authority to waive the frontage requirement for the purposes of the Subdivision Control Law, the court stressed that the authority of the Planning Board to waive frontage requirements pursuant to 81R should not be construed as authorizing the Planning Board to grant zoning variances. The court noted that there is indeed significance between the granting of a variance for the purposes of the Zoning Act and approval of a subdivision plan pursuant to the Subdivision Control Law. On this point, the court summarized the necessary approvals in order to create a building lot lacking minimum lot frontage. In short, then, persons in the position of the Mercers, seeking to make two building lots from a parcel lacking adequate frontage, are required to obtain two independent approvals: one from the planning board, which may in its discretion waive the frontage requirement under the criteria for waiver set out in G.L. c. 41, s. 81R, and one from the board of appeals, which may vary the frontage requirement only under the highly restrictive criteria of G.L. c. 40A, s. 10. The approvals serve different purposes, one to give marketability to the lots through recordation, the other to enable the lots to be built upon. The action of neither board should, in our view, bind the other, particularly as their actions are based on different statutory criteria. Absent a zoning bylaw provision authorizing a reduction in lot frontage by way of the special permit process, an owner of land wishing to create a building lot which will have less than the required lot frontage needs to obtain approval from both the Zoning Board of Appeals and the Planning Board. A zoning variance from the Zoning Board of Appeals varying the lot frontage requirement is necessary in order that the lot may be built upon for zoning purposes. It is also necessary that the lot owner obtain a frontage waiver from the Planning Board for the purposes of the Subdivision Control Law. In the Arrigo case, the landowners had submitted a subdivision plan to the Planning Board. The court noted that without obtaining the frontage waiver the plan was not entitled to approval as a matter of law because, although it may have complied with the Planning Board's rules and regulations, it did not comply with the frontage requirements of the Subdivision Control Law. After the Arrigo decision, it was debatable as to the process a landowner followed to obtaining a frontage waiver from the Planning Board. Rather than submitting a subdivision plan, another view was that a landowner could submit a plan seeking an approval not required endorsement from the Planning Board and at the same time petition the Board for a frontage waiver pursuant to 81R. If the Planning Board granted the frontage waiver and noted such waiver on the plan, then the Board could endorse the plan approval not required. 81 The Seguin case clarifies the process that must be followed when a landowner seeks a frontage waiver from the Planning Board. If a lot shown on a plan lacks the frontage required by the zoning bylaw, then the plan shows a subdivision and must be reviewed under the approval procedure specified in Section 81U of the Subdivision Control Law. The Planning Board must hold a public hearing before determining whether a frontage waiver is in the public interest and not inconsistent with the Subdivision Control Law. A notation that a frontage waiver has been granted by the Planning Board should either be shown on the plan or on a separate instrument attached to the plan with reference to such instrument shown on the plan. It is unclear whether a Planning Board must allow the Board of Health 45 days to comment on the plan when the only issue before the Planning Board is the frontage waiver. We would recommend that Planning Boards consider amending their rules and regulations providing for a shorter review period when a landowner is only seeking a frontage waiver from the Planning Board. A Planning Board may also want to specify a fee and any relevant information that should be submitted with the plan. In determining whether to grant a frontage waiver, a Planning Board should consider if the frontage is too narrow to permit easy access or if the access from the frontage to the buildable portion of the lot is by a strip of land too narrow or winding to permit easy access. In the Seguin case, the court noted that the lot appeared to present no problem and indicated that the Planning Board would be acting unreasonably if the Seguins submitted a subdivision plan and the Board did not approve the plan.