Agenda - Planning Commission - 02/03/2011

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Zoning Bulletin August 10, 2010 1 Volume 41 No. 15 days after the plan has been filed, or by an extended date requested by the applicant." Eventually, the Board stipulated to dismissal of that action. Thus, whether the plan was constructively approved was no longer an issue; it was constructively approved. Subsequently, however, the Board voted to rescind its approval of the Owner's definitive subdivision plan. In doing so, it cited four grounds for its action: (1) the unavailability of a private road as access; (2) "inher- ent" safety problems; (3) the failure to adequately protect some of the views of the Owners' property from a local pond; and (4) the fact that the Board never intended to approve the plan, "and was led to believe by [the Owners] that delay in acting on the plan was acceptable to [them]." . The Owners appealed to the land court the Board's decision to rescind the approval of the subdivision plan. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the land court granted summary judgment in favor of the Owners. The court concluded that "none of the grounds provided by the [B]o' ard supported its decision to rescind the construc- tive approval." The Board appealed. DECISION: Affirmed. The Appeals Court of Massachusetts upheld the land court's decision to vacate the Board's rescission of the constructive approval of the Own- ers' definitive subdivision plan. Agreeing with the land court, the appeals court concluded that the Board had "not supplied any valid basis for its decision to rescind the constructive approval." In so concluding, the court reiterated that under Mass. Gen. L. c. 41, § 81U, planning boards must follow "strict rules" lest their inaction re- sult in subdivision plans being constructively approved. The court said that in light of those "strict rules," "[t]he fact that an applicant is will- ing to extend the ninety-day period is not by itself sufficient to prevent a constructive approval; rather the board must file notice of the extension with the clerk before the period has expired." The court noted that there was a separate provision of the state subdi- vision control Iaw, § 81W, allowed planning boards to "modify, amend or rescind" their approvals. Planning boards could, under § 81W, re- scind constructive approvals. However, in order to rescind constructive approvals, boards had to provide "good reason" for doing so. In other words, here, in order to rescind the constructive approval of the Owners' subdivision plan, the Board had to "provide a defensible substantive rea- son for denying the application." The court determined that the first three reasons for rescission pro- vided by the Board were not defensible. The Owners had provided af- fidavits regarding those issues and the Board failed to counter those af- fidavits. Thus, the court found the Board failed to "substantiate its stated concerns over traffic and views." © 2010 Thomson Reuters 7