Comparison between Site Plan Review and Special Permit

[andrei rădulescu-banu]

I still don't fully understand the difference between Site Plan Review and Special Permit. And reading the zoning bylaw is perilous - given that it is very technical.

Site Plan Review includes, among others:

Bulk and height of structures;

Yard sizes and setbacks;

Lot area;

Open space;

Parking; and

Building coverage.

(Zoning bylaws, 135-9.5.5, 9.5.6)

There's a public hearing, and a majority vote in the Planning Board is required.

For comparison, a Special Permit review includes:

Dimensional standards more restrictive than those set forth in $135.4.0

Neighborhood scale

Potential fiscal impact, including impact on Town services, tax base, and employment

(Zoning bylaws, 135-9.4.2, 9.4.3)

So, what is really discretionary in the Site Plan Review, and how does it compare with Special Permit?

Are the height and setback limits discretionary, under a Site Plan Review? Can the PB demand stricter height and setback, on a case by case basis, than specified in the zoning bylaw for the respective zone?

Andrei Radulescu-Banu, Pct 8

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Andrei Rădulescu-Banu

86 Cedar St, Lexington MA
617.216.8509 (m)

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[Innessa Manning]

Hi Andrei - I agree that it is very important for all Town Meeting members to understand the requirements and process for Special Permits and Site Plan Reviews. I would also add that for the Center, we are also aware of the HDC process and 54-page design guidelines: Microsoft Word - Lexington HDC Guidelines Distribution Draft 1-9-19.docx (lexingtonma.gov)

My understanding is that all 3 (SP, Major Site Plan Review, and HDC for the Center) require abutter notice and public meetings. Therefore, theoretically, the community will be notified and their input will have an opportunity to be heard and considered.

For all of these cases, it is crucial that we understand how abutter notice works and evaluate if the existing protocols result in sufficient notice (not in a legal sense, but in the sense of are we ensuring sufficient community engagement). The notification of abutters for the Police Station solar canopy raises some questions for me about (i) the selection of the address used as the focal point and (ii) the radius used in the notification range.

So, if I could add on to your questions: can someone explain the abutter notification process or point to where this information may live on the Town website?

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[pam...@rcn.com]

Just as a point of clarification: the address used on the application to the HDC for the Police Station 

Solar Canopy was that of the old police station (which is not the physical location of the new police station.)

The focal point used for the 100 foot radius for notice to abutters was Cary Hall.

Cary Hall is is some distance from the Fletcher Street parking lot, where the canopies are to be built. 

The Fletcher Street parking lot itself falls outside of the 100 foot notification radius. 

Pamela Lyons

Precinct Five 

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From: "LexTMMA" <lex...@googlegroups.com>
To: "LexTMMA" <lex...@googlegroups.com>, "andrei radulescu-banu" <bitdr...@gmail.com>
Sent: Sunday, April 9, 2023 9:43:54 AM
Subject: Re: [LexTMMA] Comparison between Site Plan Review and Special Permit

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[Lin Jensen]

Hi Andrei,

Similarity between special permit and by-right/site plan review: both need compliance with bylaws and regulations, abutter notice, public hearings, HDC approval (if in the Historical District). 

According to the Town Counsel, an application should not be denied for frivolous reasons in special permit process or site plan review. And he has seen misinterpretations/misuses in both types of processes, and from both sides (builders or municipalities). 

He made the above comment to dispel some Planning Board members' repeated claim during the 4/4 meeting that special permit is "unpredictable" and is at the "whims" of the five Planning Board Members.

Difference (according to the town counsel on 4/4): 

• Special permit is discretionary. The burden of proof is on the applicant/builder to prove that all regulations and bylaws have been complied with; An applicant is not entitled to an approval.
• By-right/site plan review: The burden of proof is on the town. An application has to be approved unless the town proves it is non-compliant. An applicant is entitled to an approval.

It has been observed in multiple recent occasions that for by-right projects, site plan reviews are basically a checklist for compliance. When the town or residents asked for specific aspects in the regulations, the builders acknowledged and said it was not possible or reasonable. There was nothing the town could do about that.

Texts from existing zoning bylaw and regulations:

"An applicant is not entitled to a special permit and the SPGA [Special Permit Granting Authority], in its discretion, may decline to grant a special permit if it is unable to make a positive finding and determination as required in § 9.4.2." 

- 135.9.4 Special Permits (under zoning bylaw’s “135.9 Administration and Procedures”)

"Site plan review is not aimed at prohibiting permitted uses in a zoning district but with reasonable regulation consistent with the public interest."

"Waiver. Applicants are required to show compliance with § 176-12.0, Site Plan Review and Special Permit Design Regulations. Where compliance is not possible, an applicant shall provide a written request for a waiver to explain the reason for such relief. The Planning Board shall vote on such waiver requests at the opening public hearing or public meeting."

- 176.9.0 Site Plan Review (Under Regulations “176 Planning Board Zoning Regulations”)

Lin Jensen, TMM P8

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[Umesh]

Thank you, Lin. This is very helpful. 

Umesh Shelat, P7

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[David Williams]

I must remind Town Meeting members that The residents of Russell Square right across the street were not  notified about the solar canopy discussions

Nor the Historic Districts deliberations.I attended the “event” via Zoom where the proponents and their proponents were allowed to speak repeatedly

For some reason probably my fault, I was not able to speak…I urge everyone to go Clarke and decide if  what they see there is what they want surrounding fLETCHER Field.I. believe that the entrance to Lexington Center will be greatly diminished and destroy  and reduce the useable

Space.There has to be a much better solution.

David Williams
781 572 4768
willi...@comcast.net

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[Innessa Manning]

Thanks Lin - this is super helpful.  I am still struggling with understanding the distinctions in the standards used for both Major Site Plan Review and Special Permits (as I've mentioned before, HDC guidelines seem pretty clear in their 54-page guidelines documentation: Microsoft Word - Lexington HDC Guidelines Distribution Draft 1-9-19.docx (lexingtonma.gov)).

(Below is copied from: Town of Lexington, MA ADMINISTRATION AND PROCEDURES (ecode360.com))

Major Site Plan Review notes consideration of:
1. Siting of facilities;
2. Sustainable, climate-sensitive, and environmentally conscious site design practices;
3. Open space, natural features, and the landscape, emphasizing the function of natural, aesthetic, social, and reactional design;
4. Ecosystem function;
5. Circulation and connectivity that is safe and accessible for all;
6. Effective and efficient transportation systems and the adverse impacts of motor vehicle transportation;
7. Protection of surface and ground water quality;
8. Social, equity, diversity, public health, or community needs and impacts;
9) Historic significance
10) Impacts on public services and facilities;

11) Signage;

12) Safety; and

13) Potential adverse effects of development.

 

Special Permit notes consideration of: 

1. Dimensional standards more restrictive than those set forth in § 135-4.0;

2. Screening or landscaping of principal or accessory uses from view from adjoining lots or from a street, by planting, walls, fences or other devices; planting of larger planting strips, with more or larger plant materials or higher walls or fences than that required in § 5.3;
3. Modification of the exterior features or appearance of a building or structure;
4. Limitations on the size, number of occupants or employees, method or hours of operation, extent of facilities or other operating characteristics of a use;
5. Regulation of the number, design and location of access drives or other traffic features of the proposed use;
6. Provision of a greater number of off-street parking spaces or loading bays, and with greater yard setbacks, landscaping and screening than the minimum standards set forth in § 5.1;
7. Limitations on the number, location, type and size of signs or illumination, or modification of the design features thereof;
8. Limitations on construction activities, such as but not limited to, the hours during which construction activity may take place, the movement of trucks or heavy equipment on or off the site, and measures to control dirt, dust, and erosion and to protect existing vegetation on the site;
9. Requirements for independent monitoring, at the expense of the applicant, and reporting to the Building Commissioner, if necessary to ensure continuing compliance with the conditions of a special permit or of this bylaw;
10. Limitations on the period of time the special permit shall be in effect; and
11. Such other limitation as may be reasonably related to reducing any adverse impact on, or increasing the compatibility of the proposed use, structure or activity with, the surrounding area.

To my read, in some (important) ways Major Site Plan Review seems perhaps stronger (but perhaps only broader?) with consideration of "potential adverse effects of development" and " community needs and impacts", even if Special Permit Approval allows for some more specifics such as ability to enforce "dimensional standards more restrictive".

With counsel's input that an application cannot be denied for frivolous reasons in either process, I'm still trying to work through what changes in development outcomes might result from each.

On Sunday, April 9, 2023 at 01:21:09 PM EDT, Lin Jensen <linjen...@gmail.com> wrote:





Hi Andrei,

Similarity between special permit and by-right/site plan review: both need compliance with bylaws and regulations, abutter notice, public hearings, HDC approval (if in the Historical District). 

According to the Town Counsel, an application should not be denied for frivolous reasons in special permit process or site plan review. And he has seen misinterpretations/misuses in both types of processes, and from both sides (builders or municipalities). 

He made the above comment to dispel some Planning Board members' repeated claim during the 4/4 meeting that special permit is "unpredictable" and is at the "whims" of the five Planning Board Members.

Difference (according to the town counsel on 4/4): 

    * Special permit is discretionary. The burden of proof is on the applicant/builder to prove that all regulations and bylaws have been complied with; An applicant is not entitled to an approval.
    * By-right/site plan review: The burden of proof is on the town. An application has to be approved unless the town proves it is non-compliant. An applicant is entitled to an approval.

> 86 Cedar St, Lexington MA617.216.8509 (m)

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[Lin Jensen]

Hi Innessa,

For a by-right project's site plan review, as comprehensive and "stronger" as it can be, requirements in the regulations can be waived:

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176.9.0 Site Plan Review (Under Regulations “176 Planning Board Zoning Regulations”):

"Site plan review is not aimed at prohibiting permitted uses in a zoning district but with reasonable regulation consistent with the public interest."

"Waiver. Applicants are required to show compliance with § 176-12.0, Site Plan Review and Special Permit Design Regulations. Where compliance is not possible, an applicant shall provide a written request for a waiver to explain the reason for such relief. The Planning Board shall vote on such waiver requests at the opening public hearing or public meeting."

============

And, in addition to the list for special permit you have, Special Permit also needs a comprehensive list of submittals as well (§ 176.6.4), and the applicant has to prove that the project is compliant. I think the burden of proof is key.

6.4SPECIAL PERMIT APPLICATION SUBMITTALS.

6.4.1 

Coordination by Landscape Architect. A landscape architect must be responsible for the coordination of the physical planning of the proposed development.

6.4.2 

Information Required. Information presented in the special permit application must be based on field surveys, except as noted below. A special permit application must include the following:

1. 

A title sheet [See Section 5.2.1.] which may be based on existing map resources;

2. 

A site analysis map [See Section 5.2.2.] based on a field survey; existing trees larger than six inches in caliper within the proposed limit-of-work line must be shown;

3. 

A property rights and dimensional standards plan [See Subsection 5.2.3.]; the plan must be based on an instrument field survey; existing and proposed bounds, markers and monuments shall be shown; existing easements and property rights only may be based on map resources at the Registry of Deeds or Land Court;

4. 

A site construction plan [See Section 5.2.4.];

5. 

A street layout and profile plan [See Section 5.2.5.];

6. 

A utilities plan [See Section 5.2.6.];

7. 

A landscape plan [See Section 5.2.7.];

8. 

Elevations of proposed buildings;

9. 

A table of development data [See Section 5.3.1.];

10. 

And, if applicable:

a. 

A draft, in proper legal form, of any of any proposed conditions;

b. 

Hydrologic and drainage analysis [See Section 5.3.2.] if there are extensive wetlands on the site or the topography may cause accelerated water runoff, or a drainage system is proposed as an alternative to the Standard Specifications so that the Town Engineer can determine the feasibility of the proposed drainage system;

c. 

Soil surveys, test pits or test borings [See Section 5.3.3.] if needed to determine the suitability of the land for the proposed streets, drainage, and utilities;

d. 

Additional information [See Section 5.3.5.];

e. 

If a sketch plan was filed, or at a subsequent public hearing, a written response to the Planning Board's comments and recommendations at any prior hearing; and

f. 

A proof plan [See Section 5.2.8.] if a special permit residential development is proposed.

Lin Jensen TMMA P8