[Massplanners] Substantial Use of a Special Permit

Thu Feb 22 10:55:53 EST 2024

Attachment was too big, anyone wanting the article email me and I will
forward.

Dan Fortier, AICP Retired Planner

On Thu, Feb 22, 2024, 9:53 AM Daniel Fortier <daniel.j.fortier at gmail.com>
wrote:

> Stumbled across the attached article.  It deals with variances and
> substantial use. The court seems, in some ways, far more restrictive and
> ties issuance of a building permit to substantial use. It seems to feel
> Conservation and other regulatory permits come first and if the development
> gets hung up on getting those later, they are out of luck. While we
> encouraged getting permit review concurrently, this is not always possible.
>
> Dan Fortier, AICP Retired Planner
>
> On Thu, Feb 22, 2024, 8:35 AM Maren Toohill via MassPlanners <
> massplanners at masscptc.org> wrote:
>
>> Thank you all for the informative conversation. It’s great to hear about
>> the various approaches, suggestions, potential pitfalls, and successes.
>>
>> Maren
>>
>>
>>
>> Maren A. Toohill, AICP
>>
>> Town Planner
>>
>> 978/540-2425
>>
>> MToohill at littletonma.org
>>
>> Town of Littleton
>>
>>
>>
>>
>>
>> *From:* Gary Ayrassian <cityplanner at cityofattleboro.us>
>> *Sent:* Thursday, February 22, 2024 7:42 AM
>> *To:* 'Richard Harris' <rhplanner01075 at gmail.com>
>> *Cc:* Maren Toohill <MToohill at littletonma.org>; massplanners at masscptc.org
>> *Subject:* RE: [Massplanners] Substantial Use of a Special Permit
>>
>>
>>
>>
>>
>> **THIS EMAIL WAS SENT BY AN EXTERNAL SENDER**
>>
>> Thank you for your follow-up and explanation.
>>
>>
>>
>> _____________________________________
>>
>> *Gary G. Ayrassian, Director*
>>
>> Department of Planning & Development
>>
>> City of Attleboro | City Hall - Government Center |
>>
>> 77 Park Street | Attleboro, MA  02703 |
>>
>> p: 508.223.2222 x 3143 | f: 508.222.3046 |
>>
>> cityplanner at cityofattleboro.us |
>>
>> www.cityofattleboro.us |
>>
>>
>>
>>
>>
>>
>>
>> *From:* Richard Harris (rhplanner01075 at gmail.com) <
>> rhplanner01075 at gmail.com>
>> *Sent:* Wednesday, February 21, 2024 5:30 PM
>> *To:* Gary Ayrassian <cityplanner at cityofattleboro.us>
>> *Cc:* Maren Toohill <MToohill at littletonma.org>; massplanners at masscptc.org
>> *Subject:* Re: [Massplanners] Substantial Use of a Special Permit
>>
>>
>>
>> Since I was called out, I will respond. Yes, we did have a Performance
>> Guarantee on the residential development - we would require Performance
>> Guarantees on residential developments approved by Special Permit to ensure
>> that the "special conditions" were followed. In the case of a project under
>> development, the Board would grant an extension of the Special Permit for
>> good cause as authorized under MGL 40A, Section 9.
>>
>>
>>
>> But, each community can interpret the legislation as they wish. We never
>> had a developer push back on the Board's "substantial use" interpretation
>> that we held to - at a minimum, the project had to be under construction
>> and continually so.
>>
>>
>> Thank you.
>>
>>
>>
>> Richard Harris, AICP
>>
>> PDR, LLC
>>
>> Planning Consultant
>>
>> 413-335-5012
>>
>>
>>
>>
>>
>> On Wed, Feb 21, 2024 at 3:22 PM Gary Ayrassian <
>> cityplanner at cityofattleboro.us> wrote:
>>
>> I agree with Dan. In Attleboro, if one pulls the building permit in the 24
>> th month, the SPGA (whether ZBA or PB) and the Building Commissioner
>> consider the special permit being exercised (aka “substantial use”).
>>
>>
>>
>> To Bob’s comment, we’ve intentionally maintained the 24-month window in
>> our *Zoning Ordinance*.
>>
>>
>>
>> Question for Richard – if whatever extent of the “roadways, utilities
>> etc.” that were installed fell short of the "substantial use" threshold
>> at the end of the 24-month period, as deemed by town officials, what would
>> be the town’s recourse in such matters? Revocation of the special permit?
>> Does the town require a form of performance guarantee for a project, a
>> residential development, that’s approved only by a special permit? I would
>> think not, but I thought I’d ask.
>>
>>
>>
>> Thanks,
>>
>> Gary
>>
>>
>>
>> _____________________________________
>>
>> *Gary G. Ayrassian, Director*
>>
>> Department of Planning & Development
>>
>> City of Attleboro | City Hall - Government Center |
>>
>> 77 Park Street | Attleboro, MA  02703 |
>>
>> p: 508.223.2222 x 3143 | f: 508.222.3046 |
>>
>> cityplanner at cityofattleboro.us |
>>
>> www.cityofattleboro.us |
>>
>>
>>
>>
>>
>>
>>
>> *From:* MassPlanners <massplanners-bounces at masscptc.org> *On Behalf Of *Richard
>> Harris via MassPlanners (massplanners at masscptc.org)
>> *Sent:* Wednesday, February 21, 2024 1:51 PM
>> *To:* Maren Toohill <MToohill at littletonma.org>
>> *Cc:* massplanners at masscptc.org
>> *Subject:* Re: [Massplanners] Substantial Use of a Special Permit
>>
>>
>>
>> I saw other comments from Jeff and Dan. However, I would suggest that
>> merely filing a Definitive Subdivision Plan should not constitute
>> "substantial use". I think it needs to go at least a step further to the
>> point that the Definitive Plan is approved, endorsed, and recorded.
>>
>>
>>
>> When I was Planning Director in South Hadley, the Planning Board held
>> that the improvements to allow development on a majority of the lots was
>> necessary to constitute "substantial use"; thus, the roadways, utilities
>> etc. sufficient to provide service to allow buildings to be constructed on
>> at least half the lots was required. There were suggestions by some
>> Planning Board members that even that wasn't sufficient.
>>
>>
>>
>>
>> Thank you
>>
>>
>>
>> Richard Harris, AICP
>>
>> PDR, LLC
>>
>> Planning Consultant
>>
>> 413-335-5012
>>
>>
>>
>>
>>
>> On Wed, Feb 21, 2024 at 12:17 PM Maren Toohill via MassPlanners <
>> massplanners at masscptc.org> wrote:
>>
>> It’s not Friday yet, how about a Wednesday question?
>>
>> “Special Permits shall lapse 24 months following the grant thereof….if a
>> substantial use or construction has not sooner commenced, except for good
>> cause.”
>>
>> In your opinion, does the filing of a Definitive Subdivision constitute
>> “substantial use”?
>>
>> I am arguing with….myself about this one.
>>
>> Maren
>>
>>
>>
>> Maren A. Toohill, AICP
>>
>> Town Planner
>>
>> 978/540-2425
>>
>> MToohill at littletonma.org
>>
>> Town of Littleton
>>
>>
>>
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>>
>> --
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>>
>
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