[Massplanners] Zoning Board case - constructive approval

[Bob Mitchell]

Stephen: There seems to be a number of issues in the special permit
situation in your email, one of which Jeff has addressed. A few comments:

a) As Jeff noted, after the close of the public hearing the board has
ninety days to take final action, final action being the making of the
decision, the vote on the decision, and the filing of the written decision
with the town clerk. The board is required to file its written decision
within 14 days of making the decision and the 14 days has to occur
within the 90 day time period. Some boards make and vote on the decision
within the context of the public hearing and close the hearing after the
vote. Other boards close the public hearing and then deliberate and vote on
a decisioni at a subsequent public meeting (not a public hearing). Either
way, the 14 day clock starts from the date of the vote on the decision.

b) There are  a number of court decisions that clarify what modifications a
board may make in its decision after having made the decision. The  most
important distinction the courts have noted is that a board may make
clerical corrections at a subsequent public meeting. However, if the
modification is substantive and changes the result of the original
decision, then the only way for the board to modify the original decision
is to go through a new special permit process (public notice, notice to
abutters, public hearing etc.). Is changing the number of units allowed by
the decisions substantive? The town needs to answer that question.

c) As for a constructive grant, there is a defined procedure that the
applicant would have to go through in order to claim constructive grant,
starting with filing such a claim after the 90 days from the close of the
hearing expire without a decision being filed with the town clerk. If this
procedure is followed and the applicant receives a constructive grant
certificate from the town clerk, the constructive grant is based on the
original plans submitted by the applicant. There would be no board review,
no changes to those plans, and no conditions on those plans.

Bob Mitchell FAICP
Planning Consultant
Land Use, Planning, Zoning, & Training Programs
151 Tremont Street Suite 23A
Boston, MA 02111
617-512-9751 (c)
MitchellFAICP at gmail.com



On Thu, Jun 22, 2023 at 10:20 AM Stephen Wallace via MassPlanners <
massplanners at masscptc.org> wrote:

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