Braintree Reconsiders
‘Restrictive’ Zoning Bylaw
By Sandy Cooch

Braintree residents are being urged to turn out for a informational hearing Tuesday, Jan. 16, to address issues recently brought to light concerning sections of the town’s zoning ordinance. The session, part of the selectboard’s regular meeting, will start at 6 p.m., at the Town Hall on Route 12A.

The planning commission is in the process of revising the town’s current zoning ordinance, which was adopted by Australian ballot in March, 2003.

Braintree adopted its new town plan in the fall of 2005, making it time to update the ordinance to synchronize it with the plan, as required by law. Also, the state has mandated that all towns revise their ordinances by 2011, to incorporate 2004 amendments to the land use statutes.

The redraft effort in Braintree gained some urgency after this fall, when the town’s zoning board of adjustment denied four variance applications, and sections of the ordinance came under criticism during public hearings on the applications.

Planning Commission Chair Maggie Gilmore said this week that the Jan. 16 informational meeting will give residents an opportunity to discuss "the general direction of zoning in Braintree." The hearing will also be an opportunity to learn about and discuss specific areas of concern, including variances, waivers, and non-conformities.

Gilmore noted that this fall's permit hearings "made it evident to town zoning officials that sections of the ordinance presented restrictions to land use that seemed contrary to what the public thought was reasonable."

"A lot of people were not happy with the ZBA," she said.

But board members, she noted, were simply administrating "the ordinance as written."

"It’s not us," she said. "It’s what everybody adopted in 2003, but didn’t understand."

The three members of the ZBA—who are also the three members of the planning commission—subsequently asked the Braintree Selectboard to schedule a town-wide discussion of zoning expectations and directions, in general, as well as possible changes to the ordinance.

Gilmore this week provided some details regarding specific issues to be discussed at next Tuesday’s meeting.

Non-conformance

Non-conformities—a lot or parcel, structure, or use that does not conform to the present ordinance—have been at the heart recent concerns about zoning in Braintree.

That’s because Braintree has a lot of non-conformities. For example, a number of old structures are in violation of current setbacks, because they were built before those setbacks were adopted.

"Legal non-conformities" are allowed to continue, but state law gives towns the authority to regulate non-conformities in many ways, including:

• Specifying the extent to which, and circumstances under which, a nonconformity may be maintained or repaired; and

• Specifying the circumstances in which a nonconformity that is destroyed may be rebuilt.

Braintree’s present ordinance pretty much forbids any changes to non-conforming structures.

Variances

"An applicant applies for a variance when the applicant believes that strict application of the regulations may result in undue hardship or allow no reasonable use of the property," explained Gilmore, who is a land use attorney.

However, in order to grant a variance, a zoning board must find that the applicant’s project meets all five of the criteria established by state law.

Variance requests in any town are rarely granted, since few properties can meet those criteria. Furthermore, a variance will not necessarily allow the "best use" of the property, Gilmore pointed out.

Those seeking variances have often already been denied a zoning permit because their proposed projects do not meet the dimensional requirements of the zone, such as front, rear or side-yard setbacks.

The Waiver

However, the state has recently authorized a "waiver" option that does give zoning boards new flexibility in granting variances, as long as proposals conform with state law and the town plan. The option may allow for "flexibility in the application of specified dimensional standards" by:

• Allowing for mitigation through "design, screening or other remedy";

• Allowing for structures providing for disability accessibility, fire, safety, and other requirements of law; and

• Providing for energy conservation and renewable energy structures.

In order to access this flexibility, a town must adopt waiver language in its zoning ordinance.

Gilmore gave as an example one of the four variance applications before the ZBA this past fall. The applicant wanted to extend the front of an old farmhouse in order to make an apartment for an older parent who used a walker. However, since the property was already "non-conforming," no expansion could be permitted.

The new "waiver" option wouldn’t guarantee that such requests could be granted, but it would provide some flexibility.

Gilmore said she agrees with those who spoke out during the fall hearings, to say that Braintree’s zoning ordinance needs some changes.

The current ordinance is "restrictive," she said, and "inconsistent internally," as well as inconsistent with what residents said they want their zoning to do.

However, Gilmore cautioned that zoning, by its nature is "restrictive."

Although it may take more than a year to complete a total revision of the bylaw, Gilmore and other planners hope that some changes, including the waiver, can be adopted much sooner.

In fact, town officials are hoping that some changes can be approved by voters fairly quickly, so that some of those applicants who were denied permits this past fall would have an opportunity to apply again this spring.

Gilmore said planners would collect feedback at Tuesday’s meeting and use it to work on the redraft. Then, the planning commission and the selectboard will each schedule warned hearings on the proposed changes, in advance of a warned Australian ballot vote on the revised zoning ordinance.

Gilmore said she hoped that residents will sturn out in force at the Jan. 16 meeting, ready to learn more specifics and to discuss the issues.

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