[Massplanners] Substantial Use of a Special Permit

Thu Feb 22 11:27:20 EST 2024

I think those in the email chain got the response directly without posting
to the server.

Dan Fortier, AICP Retired Planner

On Thu, Feb 22, 2024, 10:20 AM Richard Harris <rhplanner01075 at gmail.com>
wrote:

> 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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>>>> http://masscptc.org/mailman/listinfo/massplanners_masscptc.org
>>>>
>>>> --
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>>>> http://masscptc.org/mailman/listinfo/massplanners_masscptc.org
>>>>
>>>
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