Agenda - Planning Commission - 05/07/2009

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o () '-- u Zoning Bulletin March 25, 2009 I Volume 3\ No.6 On January 28, 2000, the Kitrases submitted definitive subdivision plans to the Board. After the building moratorium expired, the Board failed to act on the Kitrases' definitive subdivision plans. Eventually, the Kitrases asked the town clerk to issue certificates of constructive approval of their defini- tive subdivision plans. They asserted that since the Board failed to act in a timely manner on their definitive subdivision plans, they were entitled under state law to con:structive approval of the plans. The town clerk denied the Kitnlses' requests, noting that the Board had denied the sub- division plans. In doing so, the town clerk mistakenly referred to action taken by. the Board on the Kitrases' preliminary subdivision plans. The Board had never acted on the Kitrases' definitive subdivision plans. On August 23, 2002, the Kitrases filed an action in the Superior Court. They asked the !=ourt to compel the town clerk to issue certificates documenting constructive approval of the definitive subdivision plans. A judge concluded that the Kitrases' definitive subdivision plans were con- structively approved as a result of the town's inaction following the ex- piration of the moratorium. However, on appeal, the Appeals Court re- versed because the Kitrases' action had not been brought within the time period allowed by law. The Kitrases remained without any certificates doc.umenting,constructive a pprovalof their definitive subdivision plans. In.themeantime, onJuly29, 2002, the Kitrases.filed a separate. action in the Land. Court. They asked the court to declare that, due to inaction by the Board: (1) their definitive subdivision plans had been construc" tivelyapproved; and (2) the parcels of land at issue were entitled to the benefit of a zoning freeze (i.e., that the Kitrases should be allowed to use and enjoy their property in accordance with the town's zoning bylaws that were in effect at the time they filed preliminary subdivision plans- June 29, 1999). After the Land Court action was transferred to the" Superior CoUrt, a judge found that constructive approval of the Kitrases' definitive sub- division plans was not sufficient to trigger a freeze of the town's zoning bylaws as of June 29, 1999. The Kitrases appealed. The Appeals Court affirmed, with modifica- tions declaring specifically that the Kitrases were not entitled to an eight- year zoning freeze. The Kitrases appealed. DECISION: Affirmed as modified. The Supreme Judicial Court of Massachusetts held that the Kitrases were not entitled to an eight-year zoning freeze. State law entitled a de- veloper to a zoning freeze for eight years from "the date of the endoJ;se- @ 2009 Thomson Reuters 3 " 33