Sign Code – A Case For How We Regulate Signs

Yesterdays Cape Cod Times article, Orleans eatery’s sign bone of contention, provides an opportunity to discuss regulating signs under the town’s General By-law rather than under Zoning.  Sign codes are heavily litigated.  In the case of AMERICAN SIGN AND INDICATOR CORP. vs. TOWN OF FRAMINGHAM & another. [Note 1] 9 Mass. App. Ct. 66 the courts weighed the difference between regulating signs under Zoning or General By-laws.  The court essentially determined that either avenue is authorized under state law.

So, why choose a General By-law over the Zoning By-law?  The answer is found in Barron Chevrolet v. Danvers.  In that case the court found that non-conforming signs have the same grandfather protections as other non-conforming structures or uses.  In the Barron Chevrolet case the court found that a change in the cars being sold on a site, and therefor a change in the face of a sign, did not constitute a change of use which would require the non-conforming sign to be brought into compliance with the town’s zoning based sign code.  Essentially, Barron Chevrolet was changing the sign from advertising its used cars to the, then, new Geo’s.  Car Sales to Car Sales, no change of use.  The change would be like painting a white building tan.

Under a General By-law, however, Zoning grandfather protections do not apply.  This provides a community with far more control over signage in an already developed area than a Zoning restriction.  In Dennis, Section 151-4 B provides for that grandfather protection.  Signs may not be altered, relocated or replaced.  The alteration aspect is somewhat vague.  However, if one looked at the definition of maintenance of a sign, you would determine that the change of a face from one type of auto sales to another (using the Danvers example) would not alter the basic information.  While the Sign By-law could have taken a stronger position, the drafters tightened up aspects of the old by-law in regard to grandfathered signs, but did not seek to push all signs into immediate compliance.

This last point may be contentious to some, but, the drafters of the revised sign code tried to strike a balance.  Many changes were made, some providing more restrictions on signs, others that relaxed certain provisions.  In the end, we developed a sign code  that meets the needs of the town.

To access the Dennis Sign Code, click here.

Mansionization

Yesterday’s Cape Cod Times had an interesting article about Truro’s attempt to control the size of homes within the town, Truro sizes up problem of trophy houses.  The story line is the same whether you are in the Berkshires or here on Cape Cod.  As cities and towns regulate minimum lot size, lot coverage, and building height, rarely is the end result contemplated.

In Dennis we have minimum lot sizes of 40,000 sf for most of town, a minimum building height of 2 1/2 stories, and a 15% lot coverage.  I always try to tell people to imagine what a site might look like if it were built out to the maximum limits available (some have said I am calling the highest and best use but that really is not the issue – the issue is imagine what can happen whether good or bad).  On a 40,000 sf lot we would be looking at a total building footprint of 6,000 sf.  At 2 1/2 stories we would be talking about a15,000 sf of allowable space.  In the R-60 zoning districts we increase lot sizes to 60,000 sf to protect the rural environment, but leave the same ratios.  In the end, the R-60 zoning district does nothing to protect the rural setting as just as much lot coverage and building area is possible as in the smaller lot zones.

Truro’s approach is one method of tackling this issue.  Other towns have taken to floor area ratio’s for residential uses.  In Crowe’s Pasture we set the lot coverage to include all physical occupation of the land not just the homes and garages, and in the scenic vista areas we further restricted lot coverage on a sliding scale, the larger the lot, the lower the percentage of lot coverage.

The Truro discussion leaves many questions to think about.  For instance, would a higher lot coverage be okay if buildings were restricted to a single story and perhaps 17 feet in height?  Should a maximum building size be considered?  Lots to think about.  I know I will be watching where Truro heads.  There may be some parts of Dennis we might want to think about following a similar lead.

What Counts Towards Zoning Lot Area

I have had inquiries on occasion regarding what constitutes lot area.  In particular, the questions have related to whether or not the land under a private street layout could be used for such consideration.  From reviewing Massachusetts Court Cases, it does not appear that Dennis is the only town to have had this inquiry.  In Marshfield a property owner went so far as to take the issue to court.  The case, JAMES SEARS vs. BUILDING INSPECTOR OF MARSHFIELD & another 73 Mass. App. Ct. 913, February 6, 2009, is very similar to the questions I have received.

As many are aware, the land under a private way reverts to the abutting property owners should the private way be formally discontinued.  Essentially, abutters own the fee in the street on private ways to the centerline.  The question has arisen, for lots that are substandard, as to whether the property owner can claim the land under the private way to compile appropriate lot area.  In Dennis, the questions have been very similar to the Marshfield instance.  The lots in question are empty and fail to meet the 5,000 sf minimum lot area established both in zoning and the state zoning act as the absolute minimum for a grandfathered lot to be a building lot.  The land under the street generally has been determined to be adequate to raise the substandard lot to the minimum building size.  The problem is, the land under the street is not a part of the actual deeded parcel.  The state courts have determined, as I suspected from my interpretation of the zoning act, that the minimum lot area had to be the area of the actual lot recorded, by deed or plan, at the Registry of Deeds.  Since these lots illustrate lot lines that abut the street, the land in the street layout cannot be considered a part of the lot in question, and cannot be included in minimum lot area.

It is always good to have an appellate level court decision confirming what we have always suspected.

Multi-Hazard Mitigation Plan Presentation

On December 7, 2009 the Dennis Planning Board will be discussing and soliciting public comment on the Dennis Multi-Hazard Mitigation Plan.  The following Power Point Presentation will accompany this discussion.

Cottage Colonies – Cultural Monument?

Saw this, 15 endangered cultural sites, on the Chicago Tribune site and started to wonder, if the Connecticut River Valley in Hadley is considered an endangered cultural site, would the cottage colony areas of Cape Cod be of an equal cultural significance?  To learn more about the endangered cultural sites look at the following link.  World Monument Fund

Slideshows From Other Areas Can Help Our Own Planning Process

I was looking over the slide shows on Slideshare and saw the following slide show on the Montgomery Township Center presentation.  It illustrates much of the ideas and discussions we have tossed around during our Dennisport and West Dennis discussions.  I thought it was worth sharing the presentation to keep us thinking and moving  forward.

Making Dennis Energy Smart: Net Metering Comes To MA

From the WBZ Radio website:  MA homeowners can now sell back electricity.

It’s a big step forward for Green Energy.

Chapter 40R, Intriguing But Could Use More Flexibility

We have been working on a redevelopment plan for land off of Candlewood Lane.  We are working with the land owner to explore redevelopment options that could benefit both the land owner and the town.  We have been considering using MGL Chapter 40R to design options for the Northern Paving site.  Chapter 40R has its drawbacks however in its lack of flexibility.  This lack of flexibility is found in the density standards, 8 units per acre for single family projects, 12 units per acre for two and three family sites and 20 units per acre for multi-family projects.  These density standards do not lend themselves to thinking about how a site could best be used.  A single family site at 8 units to an acre can be more visually intrusive than taking that same density and placing the units in a townhouse style project of, perhaps structures with 4-6 units each.  A multi-family structure, at 8 units per acre could provide better sight lines, better arrangement of open areas and a more energy efficient design.

The Boston Globe, A model for the future with an eye to the past, reported on a “co-housing” project in Peterborough NH which provides some design ideas for a mixture of single family and multi-family structures designed to blend into a site and provide everyone with both a neighborly setting, front porches onto a common green, and privacy, back areas with views of open area.

The Dennis Affordable Housing By-law may provide for a more creative approach to the re-use of the Northern Paving site, but would not provide the financial benefits of a Chapter 40R eligible project.  As we proceed, we will need to consider all of our options.

You can see more of the Peterborough Co-Housing project here.

Green Lawns

Recently I was charged with researching whether towns could regulate the use of fertilizer on lawns.  This brought me all the way back to our days discussing the zoning for the Crowe’s Pasture District of Critical Planning Concern.  Back in 2001 and 2002 while we were developing this zoning by-law, we were discussing how to control fertilizer use in this area to protect the fragile coastal resource.  In the end, we felt it would be impossible to police limiting fertilizer in just one section of town, or in the town by itself.  It would need a far greater level of control than was available at the time.

In the past several months, the problems experienced in Dennis (Swan Pond) and in our neighboring towns elevated this discussion once again.  Lawn runoff, especially during the heavy spring and early summer rains we had, quickly deposited lawn fertilizers into the Dennis waterways.  Promoting green growth, but in the wrong areas.  Controlling fertilizer became important once again.

It turns out that in Massachusetts has a law on the books, from way back, that prohibits anyone other than the state from regulating fertilizer and specifically the ingredients in fertilizer.   Email exchanges with state officials pointed out that the state is seeking to change this law.  When first passed, the law was intended to “protect” consumers from unscrupulous lawn care companies.  The legislation set minimum standards for nitrogen and phosphate content in fertilizer.  However, studies now suggest that, except when first establishing a lawn, these components are not really necessary for a healthy lawn.

The State of Maine is way ahead of us. Recognizing that its clean water ways are a vital part of its economy, especially its tourist economy, the state has taken steps the change how it restricts the use of fertilizer. They are now restricting the sale of phosphorous based fertilizers for lawn application.

Maine’s lead is definitely a direction Massachusetts should follow. For more information on Maine’s program go here: Lawns Green Water Clean

Maine has also posted a partial list of phosphorous free fertilizers (available in Maine hopefully available in Massachusetts as well): P Free Fertilizers

In the meantime, we are tied to strategies like we used in Crowe’s Pasture.  Restricting lawn sizes and encouraging residents to forgo some use of lawn fertilizer.

Methodist Campgrounds

At the November 19, 2009 Economic Development Committee Meeting Burt Derick mentioned the history of the area and the Methodist Campgrounds.  Over the weekend I have checked these areas out.  The concept (especially from the National Park Service description in New Jersey) fits quite well with the ideas we have tossed around for the possible Chapter 40R proposal off of Candlewood Lane.

The “missionaries” responsible for establishing shore retreats left behind specially designed urban plans; social life was organized around a meeting house or auditorium, and urban development occured naturally, an extension of a growing community.

The following are pictures from Webshots Travel illustrating some of the architectural styles that remain from this period on Martha’s Vineyard.

The following picture from the National Park Service illustrates cottages facing onto a small common area, much as we are thinking for our Chapter 40R proposal.