2013 PB Rpt to ATM -Art 34 - Laserfiche WebLink

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Planning Board Report on Article 34 Table of Uses tells the reader the purpose), and moving all definitions to one section (rather than grouping them in subsections throughout the text). It's also important to explain what this initiative is not covering. It does not attempt to change aspects of the Bylaw that could stand to be updated, modernized, or even completely rewritten. Trying to make these types of changes at the same time that the entire Bylaw is being reformatted would be too confusing; there would be too many things in motion at the same time. The recodified Bylaw will provide a base from which to undertake changes that while desirable, are not necessary to bring the Bylaw into conformance with case law or to correct internal inconsistencies. Such changes will be brought forward at a later date. THE SPECIFICS The most significant changes are: • Removal of the special permit requirement for all conventional subdivisions of 3 or more units; (case law) Case law has determined that a fully complying conventional subdivision cannot be subject to a special permit, but is entitled to a by-right approval process. Due to the interrelated nature of zoning and subdivision control, simply correcting the Bylaw to eliminate the special permit requirement for conventional subdivisions would incentivize property owners and developers to choose a conventional subdivision with its set geometric requirements over special permit developments. This would result in more land disturbance, more tree loss, and more pavement. Several changes to the ZBL are therefore proposed to help keep conventional subdivisions and special permit developments on par with one another. • Removal of date-based criteria; (uniformity) All references to dates will likely be rejected by the Attorney General as a violation of the uniformity doctrine as these types of clauses split the district into several sub-districts, i.e., lots in the district created before a date, and lots in the district after the date. This is inconsistent with the concept of uniformity, as it clearly does not treat all lots within the district the same. Aside from how the existing Bylaw deals with "exempt"lots (explained in more detail below) the removal of dates does not appear to cause any dramatic changes. However, because the existing Bylaw uses a date-based system for determining side-yard setbacks for exempt lots (typically smaller lots that may have some grandfathering rights associated with them) the proposed Bylaw must change how preexisting nonconforming lots will be treated. This will be explained in more depth below. • Simplification of pre-existing nonconformity section (case law/uniformity) This is a very difficult section to explain as it involves current local practice, case law and uniformity issues. The existing Bylaw creates a category of property known as exempt, whereas state law only recognizes conforming and nonconforming. Exempt lots seem to have been a well-intentioned way of allowing lots that may not have been considered buildable under State law, to be buildable under Lexington law (the theory being once buildable always buildable, which is not necessarily the case under the Zoning Act). The evolution of state law(due to court cases)has undermined our local model. A Gloucester case established that no variances may be required of any non-conforming single-family property but that all relief must be granted through special permits. Combine these changes with the uniformity problem that differentiates an exempt lot from a nonconforming one in the same district and one concludes that this section had March 13, 2012 2