[Massplanners] Substantial Use of a Special Permit

Thu Feb 22 11:20:31 EST 2024

Dan,

I was able to download a 2010 article attached to your email.

Thank you

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

On Thu, Feb 22, 2024 at 10:56 AM Daniel Fortier <daniel.j.fortier at gmail.com>
wrote:

> 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
>>> 24th 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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>>> MassPlanners at masscptc.org
>>> http://masscptc.org/mailman/listinfo/massplanners_masscptc.org
>>>
>>> --
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>>>
>>
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