Agenda - Planning Commission - 12/02/2010

Home

October 25, 2010 ( Volume 41 No. 20 Zoning Bulletin the smart growth district) was invalid because "the [T]own ... failed adequately to consider [and inform the Department of] the effect of change in the priority habitat designation to the calculation of develop- able land [of the 109-acre parcel]." A Land Court judge acknowledged that the Town's calculation of the amount of developable land was incorrect at the time the Ordi- nance was adopted. However, the judge concluded that the error did not invalidate the Ordinance. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the judge is- sued summary judgment in favor of the Town. The Abutters appealed. The Supreme Judicial Court of Massachu- setts transferred the case to itself on its own motion. DECISION: Affirmed. The Supreme Judicial Court of Massachusetts concluded: "Although the [T]own should have revised its figures concerning the amount of developable land comprising the smart growth zoning district ... its failure to do so did not invalidate the [Ordinance]." In so concluding, the court found that, when originally submitted in June 2006, the Town's application was accurate with regard to the amount of developable land in the proposed district. The court also found that, after learning of the rare species atlas update, the Town had no statutory or regulatory duty to revise its application (concern- ing the amount of developable land) prior to the Town's adoption of the Ordinance. However, in accordance with smart growth laws and conditions placed on approval of the application, the Town did have a duty to update the Department of changes in the developable land: (1) prior to seeking final approval for the district from the Department; and (2) in its annual updates to the Department. In any case, the failure to provide these updates was "not a basis to invalidate the [Ordinance] itself." The zoning Ordinance created a smart growth zoning bylaw authorizing a smart growth zoning district in the Town. The Ordinance was "just one component in a lengthy ap- plication and approval process " "Significantly," the Ordinance did not "function as a permit to develop the land ...." Instead, the con- sequence of the Town's failures to provide updates on the developable land in the smart growth district was one of financial nature. Such failures could result in the suspension or required repayment of smart growth financial incentives awarded to the Town. See also: Crall v. City of Leominster, 362 Mass. 95, 284 N.E.2d 610 (1972). See also: Durand v. IDC Bellingham, LLC, 440 Mass. 45, 793 N.E.2d 359 (2003). 8 © 2010 Thomson Reuters i 62