[Massplanners] Zoning Board case - constructive approval

Wed Jun 28 11:11:16 EDT 2023

Here is a link to the Mass APA site

https://www.apa-ma.org/

On Wed, Jun 28, 2023 at 10:59 AM Daniel Fortier via MassPlanners <
massplanners at masscptc.org> wrote:

> 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
>> <https://www.google.com/maps/search/151+Tremont+Street%0D%0A++++++++++++++++++++++++++++++++Suite+23A+%0D%0A+++++++++++++++++++++++++++++%0D%0A+++++++++++++++++++++++++++++%0D%0A+++++++++++++++++++++++++++++++Boston,+MA+02111?entry=gmail&source=g>
>>
>> <https://www.google.com/maps/search/151+Tremont+Street%0D%0A++++++++++++++++++++++++++++++++Suite+23A+%0D%0A+++++++++++++++++++++++++++++%0D%0A+++++++++++++++++++++++++++++%0D%0A+++++++++++++++++++++++++++++++Boston,+MA+02111?entry=gmail&source=g>
>>
>> <https://www.google.com/maps/search/151+Tremont+Street%0D%0A++++++++++++++++++++++++++++++++Suite+23A+%0D%0A+++++++++++++++++++++++++++++%0D%0A+++++++++++++++++++++++++++++%0D%0A+++++++++++++++++++++++++++++++Boston,+MA+02111?entry=gmail&source=g>
>>
>> <https://www.google.com/maps/search/151+Tremont+Street%0D%0A++++++++++++++++++++++++++++++++Suite+23A+%0D%0A+++++++++++++++++++++++++++++%0D%0A+++++++++++++++++++++++++++++%0D%0A+++++++++++++++++++++++++++++++Boston,+MA+02111?entry=gmail&source=g>
>>
>> Boston, MA 02111
>> <https://www.google.com/maps/search/151+Tremont+Street%0D%0A++++++++++++++++++++++++++++++++Suite+23A+%0D%0A+++++++++++++++++++++++++++++%0D%0A+++++++++++++++++++++++++++++%0D%0A+++++++++++++++++++++++++++++++Boston,+MA+02111?entry=gmail&source=g>
>>
>> 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
>>
>>
>>
>>
>>
>> When writing or responding, please be aware that the Massachusetts
>> Secretary of the Commonwealth has determined that most email is a public
>> record and, therefore, may not be kept confidential.  However, the
>> preceding email message (including any attachments) contains information
>> that may, under specific circumstances, be confidential, may be protected
>> by law or other applicable privileges, or may constitute non-public
>> information. It is intended to be conveyed only to the designated
>> recipient(s) named above. If you are not an intended recipient of this
>> message, please notify the sender by replying to this message and then
>> delete all copies of it from your computer system. Any use, dissemination,
>> distribution, or reproduction of this message by unintended recipients is
>> not authorized and may be unlawful.
>>
>>
>>
>> --
>> MassPlanners mailing list
>> MassPlanners at masscptc.org
>> http://masscptc.org/mailman/listinfo/massplanners_masscptc.org
>>
>> --
>> MassPlanners mailing list
>> MassPlanners at masscptc.org
>> http://masscptc.org/mailman/listinfo/massplanners_masscptc.org
>>
>>
>> --
>> MassPlanners mailing list
>> MassPlanners at masscptc.org
>> http://masscptc.org/mailman/listinfo/massplanners_masscptc.org
>>
>> --
>> MassPlanners mailing list
>> MassPlanners at masscptc.org
>> http://masscptc.org/mailman/listinfo/massplanners_masscptc.org
>>
> --
> MassPlanners mailing list
> MassPlanners at masscptc.org
> http://masscptc.org/mailman/listinfo/massplanners_masscptc.org
>
-- 
Thank you

Richard Harris, AICP
PDR, LLC
Planning Consultant
413-335-5012
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://masscptc.org/pipermail/massplanners_masscptc.org/attachments/20230628/3c1d39ff/attachment.htm>