[Massplanners] Withdrawl with prejudice

[TownPlanner]

Thank you for all the advice, it is not a typo, it is a request to withdraw
WITH prejudice.

A preliminary thought from Counsel, was no action was needed and rights to
return with a repetitive application would be impacted for two years.



*From:* Barbara Carboni <bcarboni at truro-ma.gov>
*Sent:* Thursday, December 5, 2024 4:29 PM
*To:* Daniel Fortier <daniel.j.fortier at gmail.com>
*Cc:* TownPlanner <townplanner at townofbolton.com>; Listserv (
massplanners at masscptc.org) <massplanners at masscptc.org>
*Subject:* RE: [Massplanners] Withdrawl with prejudice



Respectfully disagree.  If the application is withdrawn, even with
prejudice, there is nothing for the Board to act upon.  There is nothing to
make findings about.  It’s the applicant’s decision to withdraw with
prejudice (if that is in fact what they seek to do). It does affect their
rights, but it is not a denial and shouldn’t be treated as one.



Barbara Carboni

Town Planner/Land Use Counsel

Town of Truro



*From:* Daniel Fortier <daniel.j.fortier at gmail.com>
*Sent:* Thursday, December 5, 2024 4:23 PM
*To:* Barbara Carboni <bcarboni at truro-ma.gov>
*Cc:* TownPlanner <townplanner at townofbolton.com>; Listserv (
massplanners at masscptc.org) <massplanners at masscptc.org>
*Subject:* Re: [Massplanners] Withdrawl with prejudice



Withdraw without prejudice, they can refile the next day,  no problem.



Withdraw with prejudice affects property rights as they cannot return for
two years, thus having the same impact as a denial. Only had one with
prejudice, and the Board made appropriate findings on the issues that
distinguished it from a non-prejudicial withdrawal.



I advise caution, or simply putting it into the without prejudice basket.



Dan Fortier, AICP Retired Planner



On Thu, Dec 5, 2024, 3:11 PM Barbara Carboni <bcarboni at truro-ma.gov> wrote:

Hi Dan, not sure I agree.  A withdrawal (without or without prejudice) does
not result in a decision by the Board.  The application is being withdrawn,
so the Board is neither approving nor denying the application. Since there
is no decision by the Board, there is nothing to appeal, so nothing to
defend in court.



*From:* MassPlanners <massplanners-bounces at masscptc.org> *On Behalf Of *Daniel
Fortier via MassPlanners
*Sent:* Thursday, December 5, 2024 4:04 PM
*To:* TownPlanner <townplanner at townofbolton.com>
*Cc:* massplanners at masscptc.org
*Subject:* Re: [Massplanners] Withdrawl with prejudice



Wow, with prejudice usually would require a set of findings that are
defensable in court as it acts as a denial. Any withdrawal requires a vote,
but more effort is needed with prejudice.  Generally, unless there was a
really good reason, I go with withdraw without prejudice.

Dan Fortier, AICP Retired Planner



On Thu, Dec 5, 2024, 2:55 PM TownPlanner via MassPlanners <
massplanners at masscptc.org> wrote:

Hello,  I have an advertised hearing noticed to abutters etc.  and the
applicant has requested to withdraw with prejudice.  Has anyone experienced
this before?.  I assume it results in the prohibition of a repetitive
application but does it require a vote of the ZBA or a simple
acknowledgement of the written request at the meeting?   Thank you.






Pamela Harding, AICP
Town Planner

Town of Bolton

663 Main Street
<https://www.google.com/maps/search/663+Main+Street+Bolton,+MA+01740?entry=gmail&source=g>

Bolton, MA 01740
<https://www.google.com/maps/search/663+Main+Street+Bolton,+MA+01740?entry=gmail&source=g>

Phone: (978) 779-3308

Fax (978) 779-5461







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