Agenda - Planning Commission - 12/02/2010

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Zoning Bulletin October 25, 2010 1 Volume 4 1 No. 20 lTh a district is to encourage land development that "emphasizes mixing land uses, increases the availability of affordable housing ... preserves open space ... and critical environmental areas ... and encourages community and stakeholder collaboration in development decisions." There are financial incentives for municipalities that create smart growth zoning districts. These incentives include the following possi- ble payments from the commonwealth to the municipality: a one-time "zoning incentive payment" that correlates with the number of units of new construction allowed; a "density bonus payment" in the amount of $3,000 for each housing unit constructed within the district; and preferential status when discretionary funding is awarded from speci- fied agencies of the commonwealth. In 2006, the Town of Kingston (the "Town") began the process of adopting a smart growth gverlay district on a 109-acre parcel. In accor- dance, with the related laws, the Town submitted an application to the Commonwealth's Department of Housing and Community Development (the "Department"). Among other required information, the application identified 69.6 acres of the 109-acre parcel as "developable land." Subsequent to the application, in October 2006, the common- wealth's Natural Heritage and Endangered Species Program issued an updated atlas. The revised atlas identified as much as SO% of the 109-acre parcel as a priority habitat for state -listed rare species. Under the smart growth laws, the developable land area in a smart growth zoning overlay district excludes, among other areas, land designated as rare species habitat. The town became aware of the rare species desig- nation on the parcel. However, it did not revise its figures contained in its application to the Department. Eyentually, the Department approved the town's application. In April 2007, a zoning ordinance (the "Ordinance") identifying the 109 acres as a smart growth overlay district was adopted by a vote of the Town meeting. The Department then granted final approval of the Ordinance in August 2007. The town received a zoning incentive payment in the amount of $600,000. The town was then required, by the governing laws, as well as conditions placed on the approval by the Department, to annually update the Department with information, including the amount of developable land. In its first annual update, dated July 2008, the town did not revise its figures relating to the de- velopable land area on the 109-acre parcel. Thereafter, in November 2007, owners of land abutting or near the smart growth zoning district (the "Abutters") filed a legal action in court. They sought to have the Ordinance invalidated. Among other things, the Abutters alleged that the Ordinance designating the smart growth district was "invalid as an arbitrary and unreasonable exercise of zoning power." The Abutters argued that the Ordinance (and thus © 2010 Thomson Reuters 7 61