Nexum sought a special permit for a cluster development and approval of the cluster development subdivision, both of which were denied by the Planning Board. The denial was affirmed by the Superior Court, and Nexum appealed. The appeals Court affirmed. The court found that the Planning Board had failed to provide a statement of reasons for its denial, in violation of the Massachusetts zoning enabling act. While such a failure would ordinarily require a remand to the board, in this case remand would be futile. Based on the evidence, Nexum could not meet the town zoning bylaw’s requirement for the special permit that it demonstrate the number of buildable lots by doing a soils test on each lot to show that it could support a septic system. The by-law did not permit Nexum’s interpretation that it need only perform a single soils test, on the theory that it would be building a single condominium development with a common septic system. Further, Nexum could not meet the requirements established by the town board of health for showing that the water supply for the development would be adequate.
Nexum Dev. Corp. v. Planning Bd. of Framingham, 79 Mass. App. Ct. 117, 943 N.E. 2d 965 (2011)
The opinion can be accessed at: http://scholar.google.com/scholar_case?case=8442911543667302481&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Hat Tip to Robert Foster of Rackemann, Sawyer and Brewster for including this summary in the 2011 ALI-ABA Land Use Institute in Boston last month.
See his MA land use blog here: http://www.massachusettslandusemonitor.com
