[Massplanners] Zoning Board case - constructive approval

Wed Jun 28 10:56:53 EDT 2023

Ok, I am logged into my national APA account.  How do I create a password
for the state APA  site? I do not see anywhere on the site a place to
create a log in.

Dan Fortier
Retired Planner

On Wed, Jun 28, 2023, 8:37 AM Jeff Lacy via MassPlanners <
massplanners at masscptc.org> wrote:

> 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>
> <ruralplanningassociates at crocker.com>
> *Sent:* Monday, June 26, 2023 7:47 AM
> *To:* Bob Mitchell <mitchellfaicp at gmail.com> <mitchellfaicp at gmail.com>
> *Cc:* Stephen Wallace <swallace at sterling-ma.gov>
> <swallace at sterling-ma.gov>; massplanners at masscptc.org; Bill Caldwell
> <bcaldwell at sterling-ma.gov> <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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