[Massplanners] Zoning Board case - constructive approval

Wed Jun 28 11:57:48 EDT 2023

Hi all,

The direct link to the guidebook with its disclaimer can be found here: The Guidebook to Massachusetts Land Use – 2021 Disclaimer – American Planning Association – Massachusetts (apa-ma.org)<https://www.apa-ma.org/resources/guidebook/>.

If you scroll to the bottom and click Acknowledgement, your national membership ID allows you to log in to the resource there.

The Chapter Administrator can assist with those who are chapter members – you can email him at communications at apa-ma.org<mailto:communications at apa-ma.org>.

Ken Comia

Kenneth Comia, AICP
Deputy Director, Land Use and Environment Department

Pioneer Valley Planning Commission
60 Congress Street – Floor 1
Springfield, MA 01104
p: 413-285-1175 | e: kcomia at pvpc.org<mailto:kcomia at pvpc.org>
w: pvpc.org<http://www.pvpc.org/>

From: MassPlanners <massplanners-bounces at masscptc.org> On Behalf Of Richard Harris via MassPlanners
Sent: Wednesday, June 28, 2023 11:11 AM
To: Daniel Fortier <daniel.j.fortier at gmail.com>
Cc: Listserv (massplanners at masscptc.org) <massplanners at masscptc.org>
Subject: Re: [Massplanners] Zoning Board case - constructive approval

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

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

Richard Harris, AICP
PDR, LLC
Planning Consultant
413-335-5012
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