Posted by: Patricia Salkin | April 4, 2009

Landowners Not Entitled to 8-Year Zoning Freeze for Proposed Subdivision on Martha’s Vineyard For Failure to Timely Commence Action

The Supreme Judicial Court of Massachusetts found that the trustees of two parcels of land on Martha’s Vineyard were not entitled to an 8-year zoning freeze for a proposed subdivision after inaction by the town planning board resulted in approval since the town clerk did not issue a certificate to memorialize the final approval of the subdivision plans.  Absent the certificate, the Court said there was no way to identify, with precision, when the 8-year zoning freeze would commence and terminate.

 

At the request of the Town, the Martha’s Vineyard Commission set a rate cap on development within the area that was designated as a “district of critical planning concern” (DCPC), and which was eventually incorporated into the zoning by-laws of the Town.  While the designation and regulations were being approved and adopted, a moratorium was in effect suspending the Town’s authority to issue development permits for about 13 months. During the pendency of the moratorium, the plaintiffs had requested subdivision approval.  A month after the moratorium expired, the plaintiffs requested certificates of constructive approval from the Town clerk since the planning board failed to act in a timely manner on their definitive subdivisions plans.  The clerk denied the request citing the planning board’s inability to approve the plans while the moratorium was in effect.  The planning board then held a hearing on the plaintiff’s preliminary subdivision plans.  The plaintiffs did not show up, but rather requested again that the clerk issue certificates of constructive approval on their definitive subdivision. The clerk refused, noting that the board had held a hearing on the preliminary subdivision and then denied the request.  Therefore, the clerk said that the board never acted on a definitive plan, only the preliminary plan.

 

The Court agreed that the planning board never acted on the definitive subdivision plans filed by the plaintiffs, and that such inaction did result in constructive approval.  However, the 8-year zoning freeze under G.L. c. 40A, §6 did not commence because the clerk never issued a certificate memorializing the final approval. This was critical as the statute provides that the land is entitled to a zoning freeze only “if such definitive plan or an amendment thereof is finally approved, for eight years from the date of the endorsement of such approval.”  Although there would be no endorsement by the planning board where there is a constructive approval, the Court determined that the certificate issued by the town clerk is the functional equivalent of the planning board’s endorsement and that “Absent the planning board’s endorsement or the town clerk’s certificate, there is no way to identify, with precision, when the eight-year zoning freeze commences and terminates.”  The Court further noted that where the planning board fails the act, the clerk is required to issue the certificate.  Although the plaintiffs correctly brought a mandamus action to compel the clerk to so act, the Court found that the action was commenced in an untimely manner, and that therefore the plaintiffs were not entitled to the zoning freeze.

 

 

 

Kitras v. Zoning Administrator of Aquinnah, 2009 WL 400658 (Mass. 2/20/2009).

 

The opinion can be accessed at: http://www.socialaw.com/slip.htm?cid=18803&sid=120

 

See the Rackemann, Sawyer & Brewster site for more information about this case.


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