Agenda - Planning Commission - 05/07/2009

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March 25, 20091 Volume 3\ No.6 Zoning Bulletin ment of final approval of a definitive plan.". The Kitrases had received no such endorsement of final approva1. In reaching its conclusion, the court explained when constructive ap- provalbf a definitive subdivision plan would become final. It also clari- fied when and how an eightcyear zoning freeze would become effective. As to constructive approval, the court noted that under Massachu- setts statutory law (Mass. Gen. L. c. 41, ~ 81 U), a definitive subdivision plan would be deemed approved if within ninety days of submittal of the plan, the planning board failed either to: (1) take final action on the plan; or (2) file with the city or town clerk a certificate of final action on the plan. Where the planning board failed to act, (under G.L. c. 41, ~ 81 V) constructive approval would then become final in one of two ways: . "(1) 'the expiration of twenty days without notice of appeal;' or (2) if there hard] been an appeal, a court decision upholding the constructive approva1." Here, the court found that the Board's failure to act on the Kitrases' plans resulted in constructive approva1. That constructive ap- proval then became final when the twenty-day appeal period expired. As to ZOniRg freezes, the court noted that under G~L. c. 40A, . ~ 6, a developer was entitled to a freeze of the applicable zoning bylaws: (1) as of the time a subdivision plan was first submitted to the planning board and while the plan was being processed; and (2) a freeze of those same zoning bylaws for eight years from "the date of the endorsement of fi- nal approvalofadefiiritiveplan." The court emphasized that "endorse- ment of final approval"ofa definitive plan occurred when: (1) a plan~ ning board provided written endorsement of its approval; or (2) when a definitive plan was constructively approved by failure of the board to act and the town clerk issued a certificate memorializing final approval of the plan. Absent a board endorsement or town clerk certificate, the court explained that there was "no way to identify, with precision, when the eight-year zoning freeze commence[d] and terminate[d]." Here, the court found that there was neither Board endorsement nor a town clerk's certificate. Accordingly, the eight-year zoning freeze did not commence. The Kitrases could not use their properties under the zoning bylaws that were in effect when they filed their preliminary subdivision plans on June 29, 1999. See also: Kay~Vee Realty Co. v. Town Clerk of Ludlow, 355 Mass. 165, 243 N.E.2d 813 (1969). Case Note; The court added that, when a planning board fails to act on a definitive subdivision plan within the statutorily prescribed time period, a town clerk has a mandatory obligation to issue a cer- tificate evidencing constructive final approval of the plan. Where a town clerk refused to issue a certificate memorializing constructive 4 @ 2009 Thomson Reuters 34 () ---... ( ) ,_/ (, ) ~-- I- I \ I 1 I \ I