Agenda - Planning Commission - 06/01/2006

Home

Page 8 -- May 1 O, 2006 NED had fulfilled its application requirements. Under the town's zoning ordinance, the board had 120 days to approve or deny the master plan after the certificate of completeness was issued. The board requested, and NED g-ranted, eight successive extensions, which effec- 'tively extended the time period for ~anting the decision through Dec. 30, 2005. On Nov. 21, 2005, the board voted to deny NED's master plan. Between Nov. 21 and Dec. 30, 2005, the board failed to file, post, and record a written decision regarding its denial of the master plan. Since the decision was not filed by Dec. 30, 2005, NED requested a certificate of approval. According to state law, "failure of the planning board to act within the prescribed per/od constitute[d] approval of the master plan and a certificate ... [would] be issued o'n request of the applicant." The board refused to issue the certificate of approval and subsequently filed its decision on Jan. 13, 2006. NED sued, asking that the court instruct the board to issue the certificate of approval. DECISION: Petition denied. For its petition to be granted, NED had to show that: 1) it was entitled to the approval; 2) the board had no power to deny the approval; and 3) NED had no other legal remedy. NED contended that because the board did not file the decision by Dec. 30, 2005, there was implied approval of the application, and NED was entitled to approval. NED also argued that if the approval was not granted, it had no other remedies at law. The board contended that there was a final disposition of the matter at the Nov. 21, 2005, meeting -- the den/al of the request for approval of the master plan. In addition, the board also claimed that there were other administrative rem- edies available to NED that should have been exhausted before NED filed suit. The court found that the board had to approve or deny the master plan within the required time period and file the written decision. However, NED was procedurally barred from that remedy because it had to exhaust its administra- tive remedies before it filed suit. Since NED failed to avail itself of those admin~ istrative remedies, the request before the court was denied. see also: Rhode Island Employment Security Alliance 'v. Stare, 788 A.2d 257 (1998). " see also: P.J.C. Real~.. v. Bar~., 811 A.2d ]202 (2002). Reader Testimonial :. .. "I have found Quinlan's Zoning'Law Bulletin quite helpful, to. me:in · my role as a Planner for theCity of Albany. Thank you!" ~ -- Shelena Hawkins, Planner I,. Ci~. of Albany, Planning & Communi~. Developmenr (7" 80 © 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048.