Town Grapples with Legislative Changes

By Cynthia Drummond for BRVCA
September 14, 2023

RICHMOND – The 2023 state legislative session ended with a flurry of changes to the state’s land use regulations.

The purpose of the amendments is to increase the housing stock available to low and moderate -income families, but the changes are a source of consternation for the more rural towns, which must comply by Jan. 1. 2024.

The changes will impact towns’ zoning ordinances, which govern which uses are permitted in which zones and subdivision regulations, which pertain to the procedures for developing land, including the different stages of review.

With just three months remaining until the deadline,

smaller towns such as Richmond are finding that understanding and complying with the many changes in the eight bills is a challenge.

In an e-mailed comment, Town Solicitor Karen Ellsworth noted that in some cases, the amended legislation is confusing.

“I think that many cities and towns will have a difficult time complying with this legislation, which takes effect of January 1, 2024, not only because they will have to amend a substantial number of ordinances and regulations in a very short time, but also because first they will have to figure out what the new laws actually mean,” she said. “Some of the legislation is so poorly written that it’s difficult to understand the intent.”

Ellsworth has been asked by officials in Hopkinton and Exeter to help those towns draft the required ordinance changes.

“It will be easier to do the Exeter and Hopkinton drafts after I have finished the Richmond drafts, but they won't be identical,” she wrote. “Each town's ordinances and regulations reflect policy decisions that have been made over a period of time by the planning boards and town councils, and I need to make sure that the draft amendments I prepare for each town are consistent with those policy decisions.”

Here is a summary of the eight bills, all of which have been passed by the House of Representatives and the Senate. Links to the full texts of House bills are underscored.

Inclusionary Zoning:

Bills H 6058A and S 1051A

Inclusionary zoning requires developers of large residential or mixed-use projects to include affordable units in addition to market-priced units.

Most towns require that the number of affordable houses or apartments equate to 10% or 15% of the number of market-

rate houses or apartments. The amendment increases the number of affordable units to 25%. Towns will also be required to allow developers to build two additional market priced units for each affordable unit.

Ellsworth said a consequence of this change will be much larger residential developments.

“As a result, a town [like Richmond] with inclusionary zoning would have to allow large developments with substantially more homes than the number that would ordinarily be allowed in the zoning district. The only alternative would be to repeal the town’s inclusionary zoning provision,” she said.

Substandard lots:

Bills H 6059A and S 1032A

This amendment makes it easier for a property owner to obtain a dimensional variance to build on a lot that does not have the required setbacks or because of other factors, such as the location of a septic system or another building on the parcel.

The amendment will make it easier to obtain dimensional variances and will require towns to allow construction, without Zoning Board approval, on lots that do not meet the dimensional requirements in the existing zoning ordinance.

Subdivisions:

H 6061Aaa and S 1034A

This legislation redefines the procedures for the stages of approval of subdivision applications; development plan review, minor land development project approval, and major land development project approval.

A streamlined approval procedure known as “unified development review,” already in effect in Richmond, gives the Planning Board the authority to issue variances and special use permits for projects that need land development project approval, eliminating the need for the applicant to appear before the Zoning Board. Unified development review will now be mandatory.  The amendment also gives the Town Planner the authority to approve some applications that currently go to the Planning Board.

Low and Moderate Income Housing Act:

H 6081A and S 1037A

Planning Boards will be able to approve comprehensive permits for developments to be built at greater densities, as long as 25% of the units are affordable.

The bill mandates increased densities based on the percentage of affordable units and the availability of public water and sewers.

SHAB Abolished:

H 6083A and S 1050A

The State Housing Appeals Board, or SHAB, the state body charged with hearing appeals of denials of comprehensive permit applications, will cease to exist. All appeals will be heard in Superior Court.

Land Use Calendar:

H 6083A and S 1050A

This bill establishes a new land use calendar in Superior Court for appeals of planning, zoning and comprehensive permit decisions and state disapprovals of comprehensive community plan amendments. One judge, who is still to be named, will hear land use appeals and issue expedited decisions.

Comprehensive Planning and Land Use Act:

H 6086A and S 1038A

This amendment took effect upon passage, so it is already in effect. The legislation changes the notice requirements for public hearings on comprehensive plan amendments, major land development projects, subdivision regulation amendments, and zoning board hearings. Towns will be required to post notices on their websites, which Richmond already does.

Building Conversion:

H 6090A and S 1035A

This bill allows conversions, by right, of non-residential buildings such as schools and factories to residential, or mixed residential-commercial use if at least half of the gross floor area will be residential.

Legislative Changes on Planning Board Agenda

Town Planner Talia Jalette did not comment on the amendments, saying only that the Planning Board would be discussing the matter at its next meeting.

“The Planning Board will be discussing these myriad legislative changes, which will govern land use state-wide, at our September 26, 2023 Planning Board meeting,” she stated in an emailed response. “I would invite all interested parties to attend this meeting, so that they may learn more about the new rules that were enacted during the 2023 Legislative session.”

Big Ramifications for Small Towns

The bills appear to have been conceived with cities rather than towns in mind, with an emphasis on land development in urban communities. Towns like Richmond, and neighboring towns in the southwest corner of the state, do not have the infrastructure to service larger developments, nor do they have public transportation. 

Rep. Megan Cotter, D-Richmond, said she was concerned about what the changes will mean for rural areas. Cotter also represents Hopkinton and Exeter.

“I am concerned that there may be some unintended consequences that could alter [the] vision called for in the 2025 State Land Use Plan, she said in a written statement.

“This plan called for an innovative urban/rural approach where future growth would be concentrated within an urban services boundary where development could be adequately served by supporting infrastructure. My district is outside the urban services boundary and is very rural.”

“The State required towns to adopt land use policies in the rural areas that accommodate residential and recreational land use while preserving natural resources and open space to avoid sprawl. The intent was to conserve essential natural resources and support resource-based economies. Farmland and forests will surround centers that are infused with greenways and greenspace.”

“It is too soon to know for sure what the impacts of the new legislation might be. I will be closely monitoring this situation and be seeking input from municipal officials in my district.”