[Massplanners] Zoning Board case - constructive approval

Wed Jun 28 09:36:21 EDT 2023

Far as I know it’s only available electronically via the APA-MA website. APA-MA paid handsomely for the years of work that went into this prodigious project. I think APA-MA membership is a small price to pay.

Jeff Lacy 
Rural Planning Associates 
(413) 230-9693

Sent from my iPhone

> On Jun 28, 2023, at 7:06 AM, Harry LaCortiglia via MassPlanners <massplanners at masscptc.org> wrote:
> 
> 
> 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 
>>  
>> Butterick Municipal Building
>> 1 Park Street
>> Room 202
>> Sterling, MA 01564
>>  
>>  
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