exemptions - masscptc.orgmasscptc.org/documents/conference-docs/2013/zoning... · exemptions for...
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Introduction
Home Rule State Municipalities may not adopt
ordinances or by-laws inconsistent with State law
State and Federal Preemption
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State Building Code Exemption
Section 3 precludes a local ordinance or by-law from regulating or restricting the use of materials or methods of construction of structures regulated by the state building code
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Interior Area of Single-Family Structures
No zoning ordinance or by-law can regulate or restrict the interior area of a single-family residential building
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Agriculture, Aquaculture, Silviculture, Horticulture, Floriculture and
Viticulture Exemption No zoning ordinance or by-law shall
prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture, or viticulture
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Court Decisions Defining Agricultural Uses
Operation of a piggery Raising, training & boarding of horses Raising, training and sale of dogs Slaughter house
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Primarily for Agricultural Use
To be eligible for the exemption, the Zoning Act requires that the primary use of the land be agricultural Section 3 does not define the word “primary”
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If an activity is not incidental to a protected agricultural use then such activity must comply with the zoning by-law • Earth removal operations
• Saw mill
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Farm Stands
• Stands for the sale of produce, wine and dairy products
• Sales Ratio Tests - 25% Rule - 50% Rule
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Horticulture Defined
Nursery stock shall be considered to be
produced by the owner or lessee of the land if it is nourished, maintained and managed while on the premises
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Parcels That Can be Regulated Communities can prohibit agricultural
uses on parcels less than five acres, or 2 acres if sales are less than $1000 per acre
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Regulating Agricultural Uses
No zoning ordinance or by-law shall prohibit, unreasonably regulate, or require a special permit for the use, expansion, reconstruction, or construction of existing structures for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture, or viticulture.
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Religious and Educational Exemption
No zoning ordinance or by-law shall prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes
Such land or structures may be subject
to reasonable regulations CPTC 2011
Court Decisions Defining Educational Use
• The court has long recognized “education” as a broad and comprehensive term
• Group homes
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Educational Uses
Facility combining housing with training:
• For single mothers • For people with HIV and/or AIDS • Homeless families recovering from
addiction
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Religious Uses
The question under the statute is whether the structure as a whole is to be used for religious purposes
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Not all claims of educational or religious use obtain protection: Educational • Nursing home Religious • Offices & rooms for psychological
counseling • Radio station • Independent living facility • Leased parking spaces for hospital
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Regulation of Religious and Educational Uses
Municipalities may impose reasonable regulations concerning the bulk and height of structures, parking and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.
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Reasonable Regulations
• The question of reasonableness depends on the facts of each case
• Burden of proof • Adopting specific zoning requirements
for exempted uses CPTC 2011
Reviewing Proposed Educational & Religious
Activities
• Special Permits cannot be required for religious or educational uses.
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Site Plan Review
• Attorney General approved by-law requiring a site plan review process for exempted uses.
Caution!!! • Site plan review cannot be connected to a
discretionary special permit. • The site plan must be approved, it cannot
be denied.
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Flood Plain or Wetlands Regulations
• No zoning ordinance or by-law shall exempt land or structures from flood plain or wetlands regulations
• Religious & educational uses must
comply with wetland regulations
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Federal Government Uses
• The federal government is immune from local zoning regulations
• The supremacy clause of the
Constitution establishes federal law as the supreme law of the land
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State Uses
An entity or agency created by the Massachusetts Legislature is immune from municipal zoning regulations, absent statutory provisions to the contrary, at least in so far as that entity or agency is performing an essential governmental function
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Public Service Corporations Lands or structures used by a public service
corporation may be exempted if: the department of telecommunications and cable
determines the exemption is required; and finds that the present or proposed use of the land
or structure is reasonably necessary for the convenience or welfare of the public
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Child Care Facilities
A child care facility is a child care
center or a school aged child care program as defined in chapter 15D, §1A
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Exemptions for Child Care Facilities
No zoning ordinance or bylaw can prohibit or require a special permit for the use of land or structures, or the expansion of existing structures, for the primary or accessory purpose of operating a child care facility
Child care facilities may be subject to
reasonable regulations
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Exemptions for Family Child Care and Large Family
Child Care Homes
They are protected as a permitted use, unless prohibited or otherwise regulated (e.g. special permit) by the local zoning by-law or ordinance.
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Housing Discrimination Against Disabled Persons
Local land use and health and safety laws, regulations, practices, ordinances, by-laws and decisions shall not discriminate against a disabled person
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Handicapped Access Ramps
No dimensional lot requirement, including but not limited to set back, front, side, and rear yards, and open space shall apply to handicapped access ramps on private property used solely for the purpose of facilitating ingress or egress of a physically handicapped person
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Temporary Manufactured Homes
No zoning ordinance or by-law can prohibit the owner and occupier of a residence which has been destroyed by fire or other natural holocaust from placing a manufactured home on the site of such residence and residing in such home for a period not to exceed twelve months while the residence is being rebuilt
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Solar Energy Systems
No zoning ordinance or by-law can prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare
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Amateur Radio Operators
No zoning ordinance or by-law can prohibit the construction or use of an antenna by a federally licensed amateur radio operator
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Scientific Research Facilities
Zoning ordinances or by-laws must provide that uses, accessory to activities permitted as a matter of right, which are necessary in connection with scientific research or scientific development, may be permitted upon the issuance of a special permit
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Hazardous Waste Facilities
A hazardous waste facility shall be permitted to be constructed as of right on any locus presently zoned for industrial use provided that all permits and licenses have been issued to the developer and a siting agreement has been established
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Refuse Treatment And Disposal Facilities
A solid waste facility which has received a site assignment shall be permitted on any locus zoned for industrial use unless specifically prohibited by the zoning ordinance or bylaw in effect as of July 1, 1987
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