Commonwealth of Massachusetts

DEPARTMENT OF HOUSING &

COMMUNITY DEVELOPMENT
Charles D. Baker, Governor

Karyn E. Polito, Lt. Governor

Chrystal Kornegay, Undersecretary

September 25, 2015

Andrew R. Port, AICP
Director ofP1anning & Development
Office of Planning & Development
City of Newburyport
60 Pleasant Street
Newburyport, MA 01950

RE:

Concern regarding impact ofMGL c. 40R on control oflocal zoning

Dear Mr. Port:

It has been brought to our attention that in discussion of Newburyport's proposed Smart Growth Overlay

District there is concern that the city will lose local control of its zoning in the area, specifically the ability
to reduce the size or density of the district or perhaps the ability to repeal the district altogether, based on
the following provisions contained in Section 6 of the statute:
(g) Any amendment or repeal of the zoning for an approved smart growth zoning district
ordinance or by-law shall not be effictive without the written approval by the department.
Each amendment or repeal shall be submitted to the department with an evaluation of the
effict on the city or town's comprehensive housing plan described in section 8.
Amendments shall be approved only to the extent that the district remains in compliance
with this chapter. If the department does not respond to a complete request for approval of
an amendment or repeal within 60 days of receipt, the request shall be deemed approved
(h) Nothing in this chapter shall affict a city or town's authority to amend its zoning
ordinances or by-laws under chapter 40A, so long as the changes do not affect the smart
growth zoning district.

In an effort to clarify the Department's interpretation and implementation of these provisions and to allay
concerns about local control, please refer to the corresponding regulatory excerpts enclosed (760 CMR
56.05(5) and 56.06(3)) for additional detail regarding the process for amending or repealing a district.
The city retains total control of the underlying zoning. With respect to the Smart Growth Zoning, in
accordance with the process specified under 760 CMR 56.05(5) and 56.06(3), at any time, the city can
choose to reduce the geographic size of its district, any density allowances in excess of the minimum density

100 Cambridge Street, Suite 300

Boston, Massachusetts 02114

www.mass.gov/dhcd
617.573.1100

allowances required under 40R or decide to repeal its district altogether. To the extent an amendment is
limited to these changes, the Department's "approval" is required solely for the purposes of recalculating
and/or reprocessing, as applicable, any Zoning Incentive Payment or potential Zoning Incentive Payment in
accordance with 760 CMR 56.05(5) and 56.06(3). With respect to requests for repeal or amendments of
this nature that are consistent with MGL c. 40R and 760 CMR 56.00, provided the applicable
adjustments/repayments for any Zoning Incentive Payment received or committed are properly accounted
for as specified under 760 CMR 56.05(5) and 56.06(3), the Department would not ordinarily deny such a
request for repeal or amendment. There is no minimum district size per se under MGL c. 40R. Generally
speaking, nothing besides any corresponding payment adjustments would cause the Department to deny a
request to simply reduce the size of a district. However, any remaining district must, in its own right, satisfy
the applicable eligibility and approval criteria under MGL c. 40R.
Similarly, if the city adopted the 40R District as proposed but decided at a later date to reduce the portion
of the district devoted to residential and mixed use by introducing a commercial-only sub-district within its
40R District, such a change would ordinarily be approved provided residential use remained the district's
primary use and any corresponding applicable payment adjustments were accounted for.
We hope that this additional explanation helps to clarify the intent and practical implementation with regard
to the referenced statutory and regulatory provisions. Please note that this letter is a good faith effort to
respond to city's request for clarification within the timeframe provided and is subject to review by the
Department's General Counsel.
If there is any additional information or assistance we can provide, please don't hesitate to contact us.
Regards,

J::~

Principal Planner, Smart Growth Programs

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