PITTSFIELD, Mass. — The executive committee of the Berkshire Regional Planning Commission on Thursday agreed to call for changes in legislation that aims to standardize a regulatory tool used by municipalities to control development.

 

House Bill 3551 on Beacon Hill seeks to enshrine in Massachusetts General Law the practice of "site plan review," which is commonly used in towns and cities as a, "regulatory tool and a means for communities to control the aesthetics and environmental impacts of land use under their zoning by-law."

 

That language comes from a 2008 court decision in a case originating from the Town of Marblehead. Massachusetts courts have upheld the practice of site plan review, even though the process is not included in 1954's Chapter 40A, the Zoning Act that enabled local zoning in the commonwealth.

 

HB 3551 would codify site plan review by amending Chapter 40A.

 

"In summary, site plan review, which is something a lot of municipalities use … has never been codified in the enabling legislation," BRPC Executive Director Thomas Matuszko told the executive committee at Thursday's virtual meeting. "This bill is making a good attempt to do that, except the municipal counsels have found some flaws and are making recommendations to improve that."

 

The BRPC board on Thursday reviewed a letter from the Massachusetts Municipal Lawyers Association, who said that while codifying site plan review would provide public benefits, the bill as currently drafted would, "benefit from revision prior to adoption."

 

The lawyers group sent a five-page memo to legislative leaders, and, on Thursday, the BRPC executive committee voted unanimously to encourage the lawmakers to consider the MMLA's proposed changes, which the lawyers indicated would avoid "unintended consequences," including some that would limit the way the site plan review process currently works at the local level.

 

The regional planning commission's community planning program manager told the executive committee that HB 3551 was worth passing even if all the changes proposed by the municipal lawyers association do not make it into the final version of the bill.

 

"I would say, overall … it's really just making [site plan review] fit better — as well as you can make something fit into Chapter 40A," Cornelius Hoss told the committee. "It reduces potential conflicts elsewhere in the existing law.

 

"I don't see anything [in the MMLA letter] that is overly significant other than it's cleanup. These are the attorneys who know best because they're the ones in land court and superior court defending decisions."

 

Hoss said the proposed changes are relatively minor. In answer to a committee member's question about whether BRPC should recommend a gubernatorial veto of HB 3551 passes unamended, Hoss said that is a conversation for another day. But he said it might be better to have site plan review enshrined in the law even with some "deficiencies."

 

"I think these changes are well worthwhile making, but it's a question of do we want to have codified site plan review in place so communities have guidance," Hoss said. "Is it better to have site plan review on the books in 40A or just continue working through the guidance provided by case law?"

 

On a motion from Roger Bolton, the BRPC Executive Committee voted, 8-0, to have Matuszko draft a letter saying the commission strongly supports HB 3551 and also strongly urges legislators to make the "tweaks" suggested by the municipal lawyers group.

 

In other business on Thursday, the BRPC leadership took a first look at the March 29 report from the state's Commission on Energy Infrastructure Siting and Permitting, which Gov. Maura Healey charged with developing "legislative, regulatory and administrative reforms to reduce permitting timelines, ensure communities are meaningfully engaged and are able to provide input in the siting and permitting of clean energy infrastructure, and to share the benefits of the clean energy transition equitably."

 

Matuszko said he did not have time to fully study the 74-page report, but one of his initial takeaways was that the proposed regulatory regime would take away some local control and transfer it to the commonwealth's Energy Facilities Siting Board, a seven-member panel in Boston that includes five representatives of existing state agencies, like the secretary of the Executive Office of Energy and Environmental Affairs and the chair of the Department of Public Utilities.

 

Matuszko said he was not sure how much local control really would be diminished, given that the proposal would, for example, transfer permitting authority for solar facilities to the ESFB only if they were for projects that produce 25 megawatts of electricity or more.

 

Matuszko said that translated into a solar site of 125 acres or more, and he did not know of any facilities at that scale in the county.

 

"There are statements made [in the report] that there would still be opportunity for local review," Matuszko said. "It wasn't clear to me what that is for these larger projects. … I really would like to read this word for word. It's not as bad as it could be, but it's still concerning in my mind."

 

Executive Committee member Doug McNally of Windsor disagreed, telling the group that, in his capacity as a chair of the town's Planning Board, he was approached by a developer looking at developing solar on a parcel of more than 100 acres off Peru Road near high tension power lines.

 

"There are large pieces of land around in rural areas that are … close to high-tension wires … so you wouldn't have to go through as great a cost to get it from the source to the grid," McNally said.

 

Matuszko said he doubted any legislation would result from the commission's report in the current legislative session, but he wanted to make the committee members aware of the report as soon as possible even as BRPC staff dig into it.