Posted by: Patricia Salkin | March 8, 2012

Massachusetts Land Court Construes Constructive Approval of Subdivision Clause Strictly and Finds Applicant Did Not Satisfy All Required Actions to Invoke Constructive Approval

The plaintiff owns property in the town of Acushnet, Massachusetts.  The lot is divided into two plots, implicating the Subdivision Control Law.  Plaintiff sought to make changes to her land that purportedly would not require approval under the Subdivision Control Law.  Thus, plaintiff submitted an “approval not required” plan (“ANR”).  Plaintiff then filed a copy of her ANR plan with the town clerk and paid the required filing fee.  Subsequently, the plaintiff was asked to, and did appear, at a Planning Board meeting on February 8th for consideration of her ANR plan.  The board took no action after this meeting and discussed the plan again at their next meeting on March 15th.  Once again, the board took no action and plaintiff’s attorney sent a memo to the town clerk demanding an answer.  After a third meeting on April 12th, the board discussed plaintiff’s plan and denied it; however, they failed to file a written decision with the town clerk.  

The plaintiff argues, in this case, that the planning board “constructively endorsed” her ANR plan by failing to make a decision within twenty-one days of her submission.  Under the applicable statute, a constructive endorsement of an ANR plan is granted, as a matter of law, where a planning board has failed to act within twenty-one days after the submission of the plan.  Under local law, an applicant must file her plan with a filing fee to the town clerk, then notify the planning board, and finally have a chance to appear at a planning board meeting.  

To receive a constructive endorsement, however, the statute explains that the proponent must submit her plan to the planning board and “give written notice to the clerk” noting the date the plan was submitted.  The court explains that to grant constructive endorsement of an ANR plan, there must be strict compliance with the statute.  

The first issue the court must decide is when the ANR plan was submitted for purposes of that statute.  The court finds that under the statute “submission” of a plan is defined as delivery of a plan with a completed application.  Here, the court finds that the plan was submitted at the February 8th meeting when the plaintiff submitted her plan and supporting documents for the first time.  

Once the ANR plan was submitted to the planning board, the plaintiff was then required to notify the town clerk of the submission.  Here, the court finds that although plaintiff submitted to the planning board, she failed to notify the town clerk of the submission. Although the plaintiff argues that this requirement is redundant because local law requires her to file with the county clerk prior to notifying the planning board, the court rejects this argument.  The statutory language specifically requires the plaintiff to notify the town clerk the exact date she has submitted her plan; this date is unknown prior to submission.  Thus, the court holds that the plaintiff has failed to “compl[y] with a critical statutory prerequisite,” and she is not entitled to constructive approval of her ANR plan. 

Peters v. Labonte, 2012 WL 273714 (Mass. Land Ct. 01/31/2012) 

The opinion can be accessed at:

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