[Massplanners] Zoning Board case - constructive approval

Harry LaCortiglia hlacortiglia at comcast.net
Thu Jun 29 09:45:46 EDT 2023


I occasionally have the same problem with Netflix.

Happy 4th! Everyone!

H.


On 6/28/2023 4:13 PM, Paige via MassPlanners wrote:
> My ID number does not grant me access but I've never taken the time to 
> figure out why. Just wanted to add that I, too, cannot gain access 
> even with a valid APA ID number.
>
> ~Paige
>
> ______________________
>
> Paige E. Duncan, AICP
>
> Director of Land Use and Economic Development
>
> Town of Foxborough
>
> 40 South Street
>
> Foxborough, MA 02035
>
> W: 508.543.1250
>
> F: 508.543.6278
>
> pduncan at foxboroughma.gov <mailto:pduncan at foxboroughma.gov>
>
> www.foxboroughma.gov/planning <http://www.foxboroughma.gov/planning>
>
>
> On Wed, Jun 28, 2023 at 11:59 AM Comia, Ken via MassPlanners 
> <massplanners at masscptc.org> wrote:
>
>     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.
>
>     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> 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>
>                     <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; 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> 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
>
>                         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
>
>                             When writing or responding, please be
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>                             -- 
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>
>                         -- 
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>
>     -- 
>
>     Thank you
>
>     Richard Harris, AICP
>
>     PDR, LLC
>
>     Planning Consultant
>
>     413-335-5012
>
>     -- 
>     MassPlanners mailing list
>     MassPlanners at masscptc.org
>     http://masscptc.org/mailman/listinfo/massplanners_masscptc.org
>
>
>
> -- 
>
>
> *****************************
> Paige E. Duncan, AICP, Director of Land Use and Economic Development
> Foxborough Town Hall, 40 South Street
> Foxborough, Massachusetts 02035
> Ph: 508-543-1250
>
> pduncan at foxboroughma.gov
>
>
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