THOMAS J. GARABEDIAN, Chairman
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ROBERT
W. FOSTER, Vice Chairman
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RORY WARREN, Clerk
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January 30, 2008
Muriel E. Kramer, Chairman
Board of Selectmen
Town of Hopkinton
18 Main Street
Hopkinton, MA 01748
Re:
Comments on Proposed Open Space Mixed Use
Development (OSMUD) Overlay Zoning By-law
Dear Ms. Kramer:
The Board of Appeals is in receipt of the recommendation by the Zoning Advisory
Committee dated January 15, 2008 consisting of the proposed language for an Open Space
Mixed Use Development OSMUD Overlay Zoning By-law. The Board of Appeals has not yet
had an opportunity to discuss the proposal, but my initial comments for your consideration are as
follows:
OSMUD Section 210-165 provides that no land, structure, or building shall be used
except for the purposes permitted in the OSMUD. Therefore, the proposed Zoning By-law
purports to regulate all land use within the OSMUD. This section lists fifty specific uses by
right and by special permit, along with those that are prohibited. The section also specifies the
Planning Board as the Special Permit Granting Authority (“SPGA”). Section 210-172A states
that “the entire land area included within the OSMUD shall be subject to an OSMUD District
Master Plan Permit”. This language appears to limit the Town to a single Master Special
Permit to regulate all aspects of construction and future uses on the site.
Section 210-172C4 indicates that the so-called Master Special Permit is to be issued
pursuant to MGL c. 40A s. 9.
Section 210-172B provides that should rights be exercised
under a Master Special Permit, “all construction activity” shall be in accordance with the
approved Master Special Permit. Section 210-172C2 specifies the requirements for the Master
Special Permit Application, which are entirely related solely to land development. Section
210-172D lists the “approval criteria” which mandates approval if certain economic and
construction standards are met. There is no language which addresses the normal criteria
associated with land use regulation. Section 210-172 concentrates entirely on the construction
phase and development within the OSMUD – not on what is to follow after construction has
been completed.
The municipal zoning power, as set forth in the Zoning Act, attempts to balance the
interests of three specific entities: the general public, the landowner, and the affected abutters
and nearby landowners. The rights of the general public are defined by the public interest in
preserving the health, safety, and welfare of the community through the implementation of
comprehensive land use regulations. This public interest is expressly stated in MGL c. 40A s. 9
which provides “Special Permits may be issued only for uses which are in harmony with the
general purpose and intent of the ordinance or by-law, and shall be subject to general or specific
provisions set forth therein.”
Special Permits are granted for those specific uses which are deemed necessary or
desirable but which are not allowed as of right because of their potential for incompatibility with
the characteristics of the zoning district. Special Permits are granted only after weighing the
benefits and detriments of a proposal. No one possesses a “right” to a Special Permit and the
Board may deny an application for such relief in its discretion.
Prior to rendering any decision, the Board of Appeals is required under Zoning By-law
210-152C to “give due consideration to promoting the public health, safety, convenience and
welfare, and shall encourage the most appropriate use of land and shall permit no building or use
injurious, noxious, offensive or detrimental to a neighborhood.”
Section 210-165 lists fifty specific uses that are allowed by right or by special permit
within the OSMUD. However, nowhere in the language of the OSMUD is the SPGA required
to take into account the incompatibilities of conflicting uses within the zoning districts, nor to
analyze and weigh the benefits and detriments of any specific use. Nor do the decision criteria
require appropriate special permit conditions which might mitigate any actual or potential
incompatibilities of uses or associated dangers. Nothing requires an analysis to ensure that
uses shall be “in harmony” with each other as is normally accomplished under the process for the
grant of a MGL c. 40A s. 9 special permit.
There should be a uniform method for use regulation throughout the Town. The SPGA
under the OSMUD should be held to the same standard as the Board of Appeals under Zoning
By-law 210-152C when it issues special permits for the rest of the Town. The OSMUD SPGA
should be required to “give due consideration to promoting the public health, safety, convenience
and welfare, and shall encourage the most appropriate use of land and shall permit no building or
use injurious, noxious, offensive or detrimental to a neighborhood.” This standard should be
included within OSMUD approval criteria in 210-172D. Further, judicial decisions have made
it clear that no person is entitled under MGL c. 40 s. 9 to a special permit. Therefore Section
210-172D should not require issuance of a Master Special Permit. The Town should retain its
authority to utilize its discretion when granting any MGL c. 40A s. 9 Special Permit.
In addition, using a so-called Master Special Permit to regulate future and unknown uses
raises very practical questions as to just how the SPGA can adequately protect the public’s
interest.
By expressly specifying numerous special permit uses within Section 210-165, the
Zoning Advisory Committee has inherently acknowledged that these specific uses may possess
“incompatibilities” with the other uses within the zoning district or require municipal oversight
to ensure the health, safety, and well being of the citizens of Hopkinton. That is why such uses
are not designated “uses by right.” This leads to the key question: how does the SPGA
evaluate and regulate, at the time of the granting of the Master Special Permit, the future
unknown uses to be conducted on the site after construction? Without knowing the specifics of
proposed uses, how can conditions possibly be included in the Master Special Permit to mitigate
potential incompatibilities or other concerns?
The Board of Appeals recently voted to grant a Special Permit for Lonza for a “genetic,
biological and chemical research center, laboratory, and manufacturing and processing plant”.
During the public hearing, the Board of Appeals required submission of a Hazardous Materials
Plan which was reviewed by the Fire Department and Board of Health to ensure the Town’s
interests were protected. The Special Permit issued by the Board of Appeals contained
conditions to safeguard the public, including a condition expressly requiring compliance with the
Hazardous Materials Plan. OSMUD Section 210-165 allows research centers, medical centers,
light manufacturing facilities. Without knowing the specifics of the operations of future
research centers, medical centers, and manufacturing facilities, how can the SPGA adequately
protect the public interest? It cannot.
Section 210-173E addresses modifications to the Master Special Permit. The language
allows the Planning Board in its discretion to amend the Master Special Permit without a public
hearing in its discretion. This may be illegal since MGL c. 40A s. 9 requires a public hearing
pursuant to MGL c. 40A s. 11 for any special permit. Further, there are procedural constraints
that raise practical barriers to modification of a Master Special Permit once it is granted. This
one Master Special Permit regulates all uses on all parcels within the OSMUD. Once the
developer starts selling off parcels, there may hundreds of separate owners of the different
parcels who claim property rights under this Master Special Permit. Since the Master Special
Permit runs with the land and regulates the use on every parcel in the OSMUD, any modification
to this one Master Special Permit will affect the rights of every land owner within the OSMUD.
So, any application to modify the Master Special Permit may need to be signed by every single
owner in the OSMUD – a task that is likely impossible. Even if every owner of record in the
OSMUD signs the application to amend the Master Special Permit, how does the SPGA balance
the rights and competing interests of all property owners in this one Master Special Permit when
it considers modification?
Can it really be expected that any modification to the Master
Special Permit will not result in litigation brought about by at least one aggrieved party in
interest (out of hundreds who possess rights under the Master Special Permit) who seeks to
protect his rights under the Master Special Permit?
Finally, even of the above obstacles can be overcome, the Master Special Permit may
undergo constant modification. Any change in any special permit use within the OSMUD may
require a change to the Master Special Permit. For example, even though Lonza recently
claimed rights to a Special Permit issued to a previous owner of record (also a bio company),
Town Counsel rendered an opinion that a new Special Permit was required and a building permit
could not issue under the existing Special Permit. Even though both the previous company and
Lonza were bio companies and the initial Special Permit ran with the land (and Lonza’s
proposed use was under the same Zoning By-law as the predecessor), the two companies’
operations were different and thus the change in use existed which necessitated a new Special
Permit (and new Special Permit conditions).
There appear to be serious regulatory issues associated with the proposed OSMUD,
especially with the concept of a Master Special Permit issued by the Planning Board to authorize
unknown future uses.
I recommend that the Board of Selectmen request the input of Town Counsel prior to the
Planning Board’s decision, scheduled for February 4, 2008, to send this proposed OSMUD to the
Town Meeting Warrant. Perhaps a joint meeting with representatives of the Board of
Selectmen, the Planning Board, the Board of Appeals; and the Zoning Enforcement Officer and
Town Counsel can be held to discuss the mechanics of operation of the OSMUD. With Town
Meeting approaching, there is not much time left.
After the Board of Appeals has had an opportunity to review and discuss the OSMUD in
greater detail, we may offer additional specific comments to the Planning Board prior to its
scheduled MGL c. 40A s. 5 public hearing on February 25, 2008.
Very truly yours,
Thomas J. Garabedian,
Chairman
cc:
Mark A. Abate, Chairman
Planning Board
Charles E. Kadlik,
Director of Municipal Inspections
Michael W. Shepard, BOA Liaison
Board of Selectmen
Anthony J. Troiano,
Town Manager