A Presentation by the

Citizen Planner Training Collaborative

Exemptions

CPTC 2011

Introduction

Home Rule State Municipalities may not adopt

ordinances or by-laws inconsistent with State law

State and Federal Preemption

CPTC 2011

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

CPTC 2011

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

CPTC 2011

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.

CPTC 2011

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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Nonprofit Educational Corporation may use educational exemption

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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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State Schools Exempt From Local Zoning Requirements

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Municipal Uses

Municipal uses are not immune from local zoning regulations

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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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Family Child Care and Large Family Child Care Homes

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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

CPTC 2011

Citizen Planner

Training

Collaborative

CPTC 2011