On this Site:

Introduction to the Zoning Act

This module, an Introduction to the Zoning Act: Adopting and Amending Zoning Bylaws, covers key procedural requirements of the Massachusett's Zoning Act. It is intended only for informational and reference purposes. The State Zoning Act and 45 page guide, An Introduction to the Zoning Act: Decision Making Requirements are available from the Department of Housing and Community Development (formerly EOCD) at 617-573-1360.

Module Directory  (click on any topic below for more information) 

Adoption and Amendment of Zoning Ordinances and Bylaws

Amending a Zoning Proposal

ADOPTION AND AMENDMENT OF ZONING ORDINANCES AND BYLAWS

Note: The Zoning Act provides a specific procedure which a municipality must follow when adopting or amending its zoning ordinance or bylaw. For detailed information regarding this procedure, please refer to Chapter 40A, Section 5.

INITIATION

The process of adopting or changing a zoning bylaw or ordinance begins with the filing of the proposal with the City Council or Board of Selectmen.
A proposal may be initiated by:

  • a City Council
  • a Board of Selectmen
  • a Zoning Board
  • an individual who owns land which would be affected by the proposal
  • an annual town meeting, consisting of ten or more registered voters, or a special town meeting, consisting of at least one hundred registered voters or ten percent of the total number of registered voters, whichever is less..
  • ten registered voters in a city
  • a Planning Board
  • a Regional Planning Agency
  • other methods provided by a municipal charter 

SUBMISSION TO PLANNING BOARD

  1. Within fourteen days of receipt, the City Council or Board of Selectmen must submit the zoning proposal to the Planning Board for their review.
  2. The statute is silent as to the failure of either the Board of Selectmen or City Council to submit the proposal to the Planning Board within the required fourteen day period. We must assume that any examination of a proposal must be completed within the fourteen days. However, in considering the Court's rationale in Vokes v. Lovell , 18 Mass. App. Ct. 471 (1984) , the fourteen day period may only be directory and not mandatory.

PUBLIC HEARING

  1. No zoning proposal may be adopted without a public hearing. The purpose of the public hearing is to give interested persons a chance to express their views and opinions.
  2. In towns, the Planning Board must hold a public hearing within sixty-five days after the zoning proposal has been submitted to the Planning Board by the Board of Selectmen. If there is no Planning Board, the Board of Selectmen must hold the public hearing within sixty-five days after the zoning proposal has been submitted to them by one of the parties authorized to initiate a proposal.
  3. In cities, the Planning Board and the City Council or committee designated or appointed by the City Council for such purpose, must hold a public hearing within sixty-five days after the zoning proposal has been submitted to the Planning Board by the City Council. If there is no Planning Board, then the City Council or committee designated or appointed for such purpose must hold a public hearing within sixty-five days after the zoning proposal has been submitted to the City Council by one of the parties authorized to initiate a proposal. The required public hearings by the Planning Board and City Council may be held together or separately.

PUBLIC HEARING NOTICE

  1. The hearing authority must give notice of the public hearing. Notice of the public hearing must be published in a newspaper of general circulation in the municipality once in each of two successive weeks. The first publication cannot be less than fourteen days before the day of the hearing. (Do not count the day of the hearing in the fourteen days.) Notices of the public hearing do not have to be published in a newspaper a full week apart, but must be published in separate calendar weeks which are successive.
  2. In addition to newspaper publication, the same notice must be posted in a conspicuous place in the city or town hall for a period of not less than fourteen days before the day of the public hearing, and copies of the notice must also be sent by mail, postage prepaid, to: 
    1. the Department of Housing and Community Development (DHCD)
    2. the Regional Planning Agency for the area, if any
    3. the Planning Boards of all abutting cities and towns, and
    4. if the zoning ordinance or bylaw provides for notification of nonresident property owners when there is a change within a district, then notice must be sent to any such property owner who files an annual request for notice with the municipal clerk no later than January first each year and pays any required fees.
  3. The Department of Housing and Community Development (DHCD), Regional Planning Agencies, Planning Boards of abutting municipalities and certain nonresident property owners may waive rights to notice prior to legislative action on a zoning proposal.
  4. The public hearing notice must contain the following information:
    1. the time, date, and place of the public hearing;
    2. the subject matter of the public hearing sufficient for identification; and
    3. the place where the text and maps may be inspected.

PLANNING BOARD REPORT

Following the public hearing, the Planning Board is allowed the opportunity to submit a report with recommendations to the City Council or Town Meeting. If the Planning Board fails to do so within twenty-one days after the hearing, the legislative body may proceed in the absence of such a report.

VOTE

  1. After receipt of the Planning Board's report or after the lapse of the twenty-one day period without such report, the legislative body may adopt, amend and adopt, or reject the zoning proposal. The required votes to adopt or change a zoning ordinance or bylaw are as follows:
    1. A two-thirds vote of a Town Meeting;
    2. A two-thirds vote of all members of a Town Council;
    3. A two-thirds vote of all members of a City Council;
    4. A two-thirds votes of all members of each branch where there is a two branch form of government;
    5. For councils with less than twenty-five members, a three-fourths vote of all members when there is a written protest filed against the zoning change by the owners of twenty percent or more of the area to be included in such change (or of the area of land immediately adjacent extending three-hundred feet from the boundary of the area affected by the proposal).
  2. If the town meeting fails to vote to adopt the zoning proposal within six months after the hearing by the Planning Board, no action can be taken on that proposal until after a subsequent notice, another public hearing and report by the Planning Board.
  3. If a City or Town Council fails to vote to adopt the zoning proposal within ninety days after the hearing by the City or Town Council, no action can be taken on that proposal until after a subsequent notice, public hearings or joint hearing and report by the Planning Board.

UNFAVORABLE ACTION

If a City or Town acts unfavorably on a zoning proposal, such zoning proposal can not be considered by the City Council or Town Meeting within two years from the date of the unfavorable action unless the adoption of the zoning proposal is recommended in the final report of the Planning Board.

APPROVAL OF ATTORNEY GENERAL

After town meeting has adopted a zoning proposal, the proposal must be submitted to the Attorney General for approval as required by Chapter 40, Section 32, MGL. A statement must also be sent which explains the proposal. This statement may be prepared by the Planning Board. After the proposal has received the approval of the Attorney General, the Town must publish the proposal in a bulletin or pamphlet and post it, or publish the proposal in a newspaper pursuant to Chapter 40, Section 32, MGL. Note: If the Town Clerk fails to submit the zoning proposal to the Attorney General within 30 days after the final adjournment of town meeting, the Board of Selectmen may submit within 15 days thereafter.

CLAIMS OF INVALIDITY

  1. Legal action arising out of any possible procedural defect in the adoption or amendment process must be commenced within the time period specified in Chapter 40, Section 32 and 32A, MGL which provides that such legal action must be commenced within 90 days of posting or of the second publication of the bylaw or ordinance.
  2. The publication of a zoning bylaw or ordinance must include a statement explaining that claims of invalidity by reason of any defect in the procedure of adoption must be made within 90 days of posting or of the second publication. The statement must also indicate where copies of the bylaw or ordinance may be examined or obtained.
  3. If an action is commenced, a copy of the petition submitted to the court must be filed with the City or Town Clerk within 7 days after the court action is commenced.

COPIES OF BYLAWS AND ORDINANCES

  1. A true copy of the latest effective zoning ordinance or bylaw must be kept on file and available for inspection in the office of the municipal clerk.
  2. All zoning ordinances adopted by a City Council must be forwarded by the City Clerk to the Attorney General.

AMENDING A ZONING PROPOSAL

Note: As previously discussed, one of the necessary procedural requirements when adopting a local zoning proposal is that the Planning Board give notice and hold a public hearing on the proposed zoning amendment.

COMMONLY ASKED QUESTIONS

  1. After a Planning Board has held a public hearing on a proposed zoning proposal, how much can it change the original proposal, when making a recommendation to the Town Meeting or City Council, without holding a new hearing with a new publication of notice?
  2. How far can a Town Meeting or City Council go in amending the original proposal?

RELEVANT GENERAL LAWS

The answers to these two questions revolve around the statutory requirements found in Chapter 39 of the General Laws, which deals with the issuance and contents of a town meeting warrant, and Chapter 40A , which requires notice and a public hearing by the Planning Board prior to legislative action on a zoning proposal.

GENERAL RULES

Town meeting does have the flexibility to make amendments to a zoning proposal. Obviously, if the identity of the zoning proposal is utterly changed then the Planning Board must hold a new public hearing. As has been noted by the court, a new notice, hearing, and opportunity to report by the Planning Board will be required if the amendment to the zoning proposal:

  • changes the identity or substantial character of the original zoning proposal; 
  • fundamentally departs from the original proposal; 
  • radically differs from the original proposal.

RULE OF THUMB

Perhaps a good rule of thumb to remember is whether a reasonable man could have foreseen the final action from reading the initial notice.
UMass Extension logo
UMass Extension Non-Discrimination Statement
© 2009 University of Massachusetts Amherst. Site Policies.