[Massplanners] Withdrawl with prejudice

[Lois]

I would confirm in writing (letter) the Board’s action and file a copy with the Town Clerk, especially since a vote is required to permit withdrawal—whether it is with or without prejudice.


Lois S. Barbour, Chair
Norwell Board of Appeals
lsbarbour at gmail.com <mailto:lsbarbour at gmail.com>


> On Dec 5, 2024, at 4:44 PM, TownPlanner via MassPlanners <massplanners at masscptc.org> wrote:
> 
> 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 <mailto:bcarboni at truro-ma.gov>> 
> Sent: Thursday, December 5, 2024 4:29 PM
> To: Daniel Fortier <daniel.j.fortier at gmail.com <mailto:daniel.j.fortier at gmail.com>>
> Cc: TownPlanner <townplanner at townofbolton.com <mailto:townplanner at townofbolton.com>>; Listserv (massplanners at masscptc.org <mailto:massplanners at masscptc.org>) <massplanners at masscptc.org <mailto: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  If the application is withdrawn, even with prejudice, there is nothing for the Board to act upon.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 <mailto:daniel.j.fortier at gmail.com>> 
> Sent: Thursday, December 5, 2024 4:23 PM
> To: Barbara Carboni <bcarboni at truro-ma.gov <mailto:bcarboni at truro-ma.gov>>
> Cc: TownPlanner <townplanner at townofbolton.com <mailto:townplanner at townofbolton.com>>; Listserv (massplanners at masscptc.org <mailto:massplanners at masscptc.org>) <massplanners at masscptc.org <mailto: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 <mailto: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 <mailto: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 <mailto:townplanner at townofbolton.com>>
>> Cc: massplanners at masscptc.org <mailto: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 <mailto: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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>> 
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> 
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