Posted by: Patricia Salkin | March 7, 2014

MA Land Court Upholds Planning Board’s Denial of Allowing Increased Density for Previously Issued Special Permit for a Senior Housing Project

Eastern Management & Development (“EMD”, the plaintiff appealed the decision of the Franklin Planning Board, which denied EMD “a special permit to add nine additional dwelling units to a development approved under a previously granted special permit.” In 2004, EMD sought a special permit to build a 36-unit senior village development in an area zoned “Rural Residential I,” which allowed for such senior developments with a special permit. The 2004 special permit was granted on the condition that it only applied to the 36-units and any other change of use or alteration would require a new special permit under the zoning laws. In 2010, EMD applied for a “permit to construct an additional eight-unit building in the Villas, and to add an additional unit in one of the already approved buildings.” This proposed addition would increase the number of units from 36 to 45, and the number of buildings from 5 to 6. The board denied EMD’s permit application.

In August 2010, EMD then applied to increase the number of units and buildings allowed under the existing 2004 special permit. In January 2011, the zoning board issued a detailed decision setting forth exactly what EMD could apply to the town for a with regard to a special permit. However, EMD never sought clarification of this decision but read it as granting its request to exceed the limits set forth in the original 2004 special permit. Thus, EMD then applied for a special permit granting additional units to be added under the 2004 special permit, instead of applying for an entirely new special permit. The board denied EMD’s application finding that such additions “would have adverse effects which would outweigh the beneficial effects on the neighborhood and the Town, and that the use was not in harmony with the purpose and intent” of the town zoning laws. EMD appealed.

On appeal, the court found that the board was sole authority for granting special permits as designated in the town zoning laws, and that the zoning board of appeals was not authorized to modify the original 2004 special permit, either by statute or under the zoning laws. Lastly, the court found that additions EMD sought could have reasonably been “treated as a substantial change to the project” which required another special permit review by the board, whether it was to modify the 2004 special permit or grant a new special permit to replace the original. Thus, the court found that the board did not exceed its authority when it denied EMD’s proposed additions to its 2004 special permit.

Eastern Management & Development, LLC v. Padula, 2014 WL 700714 (MA Land Ct 2/20/2014)

The opinion can be accessed at:

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