The Draft Land Use Vision Proposal has been posted on the Local Comprehensive Plan Blog.  The Draft Land Use Vision Proposal was recommended for submittal to the Cape Cod Commission to initiate discussions with the Commission at a future Planning Board meeting.  Check out the proposal.

I was looking at how other communities approached their Local Comprehensive Plan updates in order to prepare a survey of residents and visitors.  I stumbled across the Amherst NH Master Plan website.  Two things jumped out at me.  They asked residents to take pictures of the Positive and Negative things they see around town.  Check out the links below.

Positive Images of Amherst NH

Negative Images of Amherst NH

If you see similar things you would like to identify about Dennis, snap a picture, stick in an email to me with a label of Positive or Negative Things About Dennis.

There have been a number of stories lately about improving the connection between planning, development and public health.  In this story from Utah, Utah cities starting to consider lifestyles when approving developments, the discussion focuses on how many land use decisions do not consider public health, in particular the ability to walk or bicycle within subdivisions or between adjacent land uses.  The study that the article focuses on, points out the need for local planners to think like public health workers when reviewing development proposals.  Are our decisions leading the a fit neighborhood?  Or a fat one?

Other stories, like this one from CBS new Parks, Green Spaces Protect Your Health points out that green spaces can improve  public health.  This story focused primarily on the calming effect of green spaces and the ability of the presence of these areas to reduce stress, anxiety and depression.  The article also points out that the presence of green spaces in developed areas provide opportunities for walking and exercise.

New York has initiated a Million Tree NYC initiative.  This initiative has a number of goals.  The Million Tree NYC initiative points out that:

Planting trees is one of the most beneficial and cost-effective ways to help ease these growing pains. Trees help clean our air, and reduce the pollutants that trigger asthma attacks and exacerbate other respiratory diseases. They cool our streets, sidewalks, and homes on hot summer days. Trees increase property value, and encourage neighborhood revitalization. And trees make our City an even more beautiful and comfortable place to live, work, and visit.

In Dallas, they are talking about “humanizing” their city.  The goal is to take advantage of existing public resources such as excess street layouts for planting trees or creating neighborhood gardens.

Finally, Citiwire.net, published an entry suggesting that neighborhood groups and land trusts should turn their attention to acquiring and undeveloping abandoned properties for the sake of creating “button parks.”  The Dennis Open Space and Recreation Plan includes recommendations for neighborhood parks, which would meet the Citiwire description of a “button park.”

These stories are important for Dennis, in that it helps to keep us focused on our efforts to ensure that our decisions, such as the formula business by-law, and other projects we pursue provide long term health benefits to the existing and future residents of the town.

The comment period for the Draft Multi-Hazard Mitigation Plan ended on December 10, 2009.  Over 150 people viewed the document on the web since it was first posted.  Very few comments were received, mostly formatting issues.  The formatting has been revised and the Final Draft Multi-Hazard Mitigation Plan is now in the Box in the right hand margin and at the following link:

Final Draft Multi-Hazard Mitigation Plan, December 13, 2009

This document is to be forwarded to the Board of Selectmen and ultimately to the State and Federal Emergency Management Agencies.

I saw this article today and thought I would share it, In Sausalito, a Chain Is a Chain, Even When It’s Local.  Below, you will also find the Sausalito Zoning related to Formula Based Businesses.

The article is right, a chain is a chain, even if it is a local one.  If you meet the definition of a formula business, then you would be regulated by the by-law.  That is where our by-law and Sausalito’s differ.  The Sausalito Formula By-law is far more restrictive than ours.  The most basic component is that if you meet one of the tests of formula in Sausalito, you are prohibited from most zoning districts.  In Dennis, we have set the standard as three of the common features.  So, in Sausalito, Peet’s is not allowed simply because of its name.  In Dennis, the name would be one of the characteristics that would come into play, but we allow plenty of flexibility for Peet’s to bend its model and not be considered formula.  It really boils down to land use law regulating look and feel, but not regulating competition.

The Town of Dennis, like many communities, has a number of projects that started and subsequently stopped due to the current economic crisis.  Projects like the Shifting Sands Condominium project bring numerous phone calls to the Planning Office.  Many are from people who are concerned that, since construction has been halted on this project for several years, whether the permits for the project have lapsed.  Many of these callers are concerned that a regulatory quagmire could ensue if a future owner had to pursue new permits in order to complete the project.

The Dennis Special Permit process is very similar to that in most other communities in the state.  Our Special Permits follow state guidance that the rights conveyed under the Special Permit must be exercised within a particular time frame.  If the rights are not exercised (generally by issuance of a building permit) the applicant must request an extension prior to the permit lapsing.  Given the current situation, both the Planning Board and Board of Appeals have recognized that there are many forces in play that have limited construction projects that are outside of the control of the land owner.

However, when the rights conveyed in a Special Permit have been exercised, a question arises as to whether any significant lapse in construction would jeopardize the rights granted in the Special Permit.  In the State Supreme Judicial Court case of LOBISSER BUILDING CORP. & another [Note 1] vs. PLANNING BOARD OF BELLINGHAM. 454 Mass. 123 March 5, 2009 – June 22, 2009 the courts have clearly stated that, except if a Special Permit as a condition of approval sets an outside time frame for completion of construction, there is no time limit on completing work authorized under a Special Permit.

This is an important consideration for whoever comes along to finish the Shifting Sands project or any other projects begun, but not completed.  The case is equally significant for those who have gotten a Special Permit but have not yet started construction, as this case, and a similar case PAUL CORNELL vs. BOARD OF APPEALS OF DRACUT & another. [Note 1] 453 Mass. 888 March 5, 2009. – May 22, 2009, reaffirms the need for seeking extensions to permits that are not exercised within the appropriate time frame.

Photo courtesy of Google Earth

A couple of days ago I posted on Mansionization and efforts being taken in Truro to control the size of homes.  Today I saw this article, City to consider expanding rules restricting home sizes.  I thought the sub-headline was equally telling,  South Austin residents say the rules would preserve the character of their neighborhoods.

Neighborhood and community character are really what it is all about.  Many people are concerned about how their neighborhoods, whether cottage, craftsman homes, ranch, and traditional capes are changing.  Without design controls, historic districts guidelines or limits on size communities have little control over change.  Quite some time ago, based upon a comment the blog received, I put forward the idea of creating pattern books for various neighborhoods.

I have, continued to look into this concept.  I believe the use of pattern books could prove useful to controlling and guiding new infill development in developed neighborhoods; redevelopment; and overall neighborhood change.

While I was looking up the answer to another question, I stumbled across this appellate court case from 1989, JAMES KARET & another [Note 1] vs. ZONING BOARD OF APPEALS OF WORCESTER & others. [Note 2], 27 Mass. App. Ct. 439 May 24, 1988 – June 7, 1989. The case discusses the use of a zoning variance to create a building lot that does not meet minimum zoning standards.

In the case, the property owner, Kaltsas, owned a large parcel of land.  They did not want to go through the Planning Board with a Definitive Subdivision and have to worry about constructing a roadway to serve a single new parcel of land.  Instead they chose to create a non-building lot by an Approval Not Required Plan and then seek to be granted a variance from lot frontage to allow the lot to be built upon.  The Board of Appeals granted the variance, and was appealed by an abutter.  The court made the following finding “that a deficiency in the frontage of a lot is not a “circumstance[] relating to the soil conditions, shape, or topography of such land” that will satisfy one of the several statutory prerequisites for a variance under G. L. c. 40A, Section 10.”

The court went on to note that this situation is an all-to-common one.  People with deep lots seek to make use of variances to avoid road construction requirements under Subdivision Control.  The court points out that while Planning Boards are provided much leniency in its ability to waive road construction under the Subdivision Control Law, zoning is far more strict.

We have had cases where people have approached me about seeking variances to allow them to create new lots.  While I point out that everyone has a right to petition the Board of Appeals for variances, I also point out that the standards to meet for a variance are quite difficult.  I try to give them a realistic portrayal of the likelihood of getting a variance, the cost of developing the necessary plans, and let them make their own decisions.

Updated 12-11-09

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. You can also read about this sign issue on Wicked Local here, here and here.

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.

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.