[Massplanners] Zoning Board case - constructive approval
Harry LaCortiglia
hlacortiglia at comcast.net
Wed Jun 28 07:04:00 EDT 2023
I'm not an APA-MA member... Is there any chance that a Planning Board
member such as myself, might be able to access that resource? (Any
bootleg copies available?)
H. LaCortiglia
Georgetown Planning Board
On 6/26/2023 11:38 AM, ruralplanningassociates--- via MassPlanners wrote:
>
> By the way, MA planners, the answers to this and many, many questions
> that come up in the course of running our planning offices can be
> found in “The Guidebook to Massachusetts Land Use,” written by Bob
> Mitchell and Bob Ritchie. It’s available to any APA-MA member. A
> tremendous resource!
>
> Jeff lacy
>
> Rural Planning Associates
>
> (413) 230-9693
>
> *From:* Jeff Lacy <ruralplanningassociates at crocker.com>
> *Sent:* Monday, June 26, 2023 7:47 AM
> *To:* Bob Mitchell <mitchellfaicp at gmail.com>
> *Cc:* Stephen Wallace <swallace at sterling-ma.gov>;
> massplanners at masscptc.org; Bill Caldwell <bcaldwell at sterling-ma.gov>
> *Subject:* Re: [Massplanners] Zoning Board case - constructive approval
>
> Thanks, Bob, for the more complete answer.
>
> Jeff Lacy
>
> Rural Planning Associates
>
> (413) 230-9693
>
> Sent from my iPhone
>
>
>
> On Jun 25, 2023, at 8:57 PM, Bob Mitchell via MassPlanners
> <massplanners at masscptc.org> wrote:
>
>
>
> 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 <mailto:swallace at sterling-ma.gov>
>
> Butterick Municipal Building
>
> 1 Park Street
>
> Room 202
>
> Sterling, MA 01564
>
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