[Massplanners] Zoning Board case - constructive approval

[Stephen Wallace]

Questions on constructive approval. Here goes....
The Situation: Our Zoning Board voted to approve a Special Permit for a multi-family development. Before the decision was filed, the Board believed that they had made a mistake on the calculation on how many units were allowed under the bylaw. The Board wanted to amend the approval and correct the number of units.  (Which is allowed per MGL 40A Section 14).  The Town obtained an opinion from Counsel that they may correct the decision, but it must be done at a public meeting and it had to be done with 14 days of the close of the public hearing.
The Board, being unable to meet within the 14 days has decided to refuse to sign the decision and allow constructive approval.  According to Bobrowski, the SPGA must take "final action" within 90 days from the date of the close of the public hearing.  And the "14 days" shall be part of the 90 days but not beyond the 90 days.  This seems to contradict what our counsel stated that "final action" was to take place 14 days from the close of hearing.
Questions: Has anyone had a Board refuse to sign a decision that they approved?  Do you have any thoughts on how to handle the constructive approval?  If the Board refuses to sign and allow constructive approval to take over, does the decision they negotiated go away and the original application get approved?

Stephen Wallace
Town Planner
Phone: 978-422-8111,  Extension 2320
Email: swallace at sterling-ma.gov<mailto:swallace at sterling-ma.gov>

Butterick Municipal Building
1 Park Street
Room 202
Sterling, MA 01564


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