Agenda - Planning Commission - 09/07/1999

Home

Page 2 -- July 25, 1999 Z.B. ~ Special Permit -- Board need not issue permit simply because its denial didn't specify reason Editor's Note: This is an appeal of a decision reported in the Dec. 24, 1998, issue of Zoning Bulletin. MASSACHUSETTS (6/18/99) -- Developers wanted to build a grocery store in the city of Newton. They applied for a special permit and site plan approval. The zoning board's land use committee recommended approving the appli- cation with certain conditions listed in its draft decision. After lengthy debate, the board denied the developers' application. The vote was 14 in favor of the permit and nine against, but special permits needed a two-thirds vote to pass. When the board voted, it had a four-page draft order outlining the reasons for its decision, but the victorious minority withdrew it. This meant the deci- sion filed with the city clerk was an almost verbatim tracking of the committee's recommendation in favor of the application, except for the vote denying the application. State law required any local authority considering a special permit application to issue its decision within 90 days after the publi9 hearing or else the permit would be deemed granted. The statute also required the board to issue a de- tailed record of/ts proceedings "setting forth clearly the reasons for its decision." The developers appealed the board's decision, but before the appeal was heard, the 90-day period elapsed. The developers promptly notified the city clerk that the board had approved their permit request. The board sued the developers, claiming the decision it filed with the city clerk was a "f'mal action" as required by the statute because it included a record of the board's vote. It argued the decision satisfied the statute because the de- velopers could infer from it that the victorious minority weren't satisfied the developers had solved the problems discussed in the committee's recommendation. The court held the developers were entitled to the permit, and the board pealed. The appeals court affirmed, finding the developers were entitled to a permit subject to the conditions listed in the land use committee's recommendation. According to the appeals court, for the board's decision to be a "final ac- tion'' the board had to give the applicant a reason for the denial so the applicant could decide whether to appeal. If the board's vote alone was enough to satisfy the statute, any appeal would be a waste of time because a court would simply return the matter to the board so i[~:could state the reasons for its decision -- which would be followed by yet another appeal. The board appealed. DECISION: Reversed. The board didn't "constructively approve" the developers' permit by fail- ing to timely file its decision. The board satisfied the "final action" requirement by recording the results of its vote with the city clerk. The statutory requirement that the board make a final decision within 90 days required the board to do nothing more than vote on the developers' application and file with the city clerk a document reflecting