Zoning Freezes
Section 6 ofMGL Chapter 40A, Massachusetts Zoning Act, creates two kinds of so-called zoning “freezes” (i.e., temporary exemptions from certain types of zoning bylaw amendments; they are referred to as freezes because they effective “freeze” in place certain provisions of the zoning bylaw): (1) non-plan freezes and (2) plan freezes.
Non-Plan Freezes. Section 6 provides that an amendment to a zoning bylaw does not apply to any use lawfully begun, or any building permit or special permit issued “before the first publication of notice of the public hearing on such ...bylaw [amendment] required by section five [of the Zoning Act].” This provision means that a zoning bylaw amendment adopted by Town Meeting in accordance with the procedures and time periods set forth in Section 5 of chapter 40A is deemed to be effective — and hence binding on any use not lawfully begun and on any project for which a building permit or any required special permit has not been issued, as of the date of that first published notice.
Plan Freezes. Section 6 creates two categories of plan freezes: (1) a definitive subdivision plan freeze and (2) an ANR plan freeze. These so-called plan freezes are a very powerful tool for a developer, since as the court said in Long v. Board of Appeals of Falmouth, 32 Mass.App.Ct. 232, 238 n.7 (1992), “[a]s we interpret the statute, it has the potential for permitting a developer, or at least a sophisticated one, to frustrate municipal legislative intent by submitting a plan not for any purpose related to subdivision control and not as a preliminary to a conveyance or recording but solely for the purpose of obtaining a freeze.”
Definitive subdivision plan freeze. The fifth paragraph of Section 6 provides that a parcel of land is entitled to have all zoning provisions (i.e., use, density, bulk, dimensional, parking etc.) in effect on the date that there is submitted to the Planning Board a definitive plan (or a preliminary plan followed by submission of a definitive plan within seven months), written notice of such submission is given to the Town Clerk, and such definitive plan is eventually endorsed by the Planning Board, frozen for a period of eight years following such submission date (that 8-year period is extended by the length of any town imposed moratorium on construction or the issuance of permits). This provision means that a zoning bylaw amendment adopted by Town Meeting will not be effective, and hence will not be binding on, any parcel of land for which a definitive subdivision plan is submitted to the Planning Board and notice given to the Town Clerk as provided above prior to the actual date and time on which Town Meeting votes to approve the zoning bylaw amendment, until 8 years have passed.
ANR Plan Freeze. The sixth paragraph of Section 6 provides that a parcel of land is entitled to have all zoning use provisions in effect on the date that that there is submitted to the Planning Board a so-called “Approval Not Required Plan, written notice of such submission is given to the Town Clerk, and such ANR plan is eventually endorsed by the Planning Board, frozen for a period of three years following such submission date (that 3-year period is extended by the length of any town-imposed moratorium on construction or the issuance of permits). This provision means that a zoning bylaw amendment regulating the use of property adopted by Town Meeting will not be effective, and hence will not be binding on, any parcel of land for which an ANR plan is submitted to the Planning Board and notice given to the Town Clerk as provided above prior to the actual date and time on which Town Meeting votes to approve the zoning bylaw use amendment, until 3 years have passed. Although an ANR plan freeze only freezes use regulations, case law has ruled that an ANR plan use freeze may also extend to bulk and dimensional regulations that may, when applied to the use protected by the freeze, have the practical effect of prohibiting the protected use.