Agenda - Planning Commission - 07/07/2011

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May 10, 2011 l Volume 5 l No. 9 Zoning Bulletin law, for failure to identify reasons for the denial, even where the board is legally 'obligated to deny the application(s). The Background/Facts: Nexum Develop Corp. ("Nexum") pro- posed development on a 32-acre tract of land in the town. Nex- um planned to construct 24 detached single family residences in a condominium cluster development. Nexum planned to construct a common well and a common septic system for use by the con- dominium residences. In furtherance of its plans, Nexum applied for two separate but necessarily parallel applications: (1) a special permit for cluster 'development pursuant to the town's open space residential development provisions in its zoning by-law; and (2) ap- proval of the resulting definitive subdivision plan. The town's planning board (the "Board") denied Nexum's applications. Nexum appealed to the superior court. The superior court affirmed the denials. The judge concluded that the bylaw and applicable regulations required the denial of the applications because: (1) Nexum failed to comply with bylaw requirements to establish the permissible density of the project; and (2) Nexum could not comply with conditions imposed by the town's board of health related to on -site water supply. Nexum again appealed. It argued that: (1) the Board made no statement of its reasons for its decisions; (2) Nexum's density cal- culation was valid without soils tests on each lot shown on the pre- liminary subdivision plan; and (3) the judge erroneously upheld the Board's denials on the basis of inadequate water supply. DECISION: Affirmed. The Appeals Court of Massachusetts agreed that the Board had failed to identify reasons for its denials of Nexum's applications, as required under Massachusetts statutory law, G.L. c. 41 § 81U and c. 40A, § 15. Still, although such a failure typically required a re- mand of the applications to the Board, the court found remand not appropriate here. Rather, the court concluded that the Board was legally obligated to deny the applications because: (1) Nexum failed to comply with by-law requirements in that it failed to perform soil tests on all proposed lots; and (2) Nexum could not comply with on -site water supply regulations. As to the latter, the court noted that "[a] planning board may not approve a subdivision plan which does not comply with the recom- mendation of the board of health; the planning board's options in such a case are limited to those of disapproving the plan or modi- fying it in such fashion as to bring it into conformity with the rec- 6 ©2011 Thomson Reuters