Wednesday, November 16, 2011

A PLANNING BOARD CANNOT IMPOSE AD HOC REQUIREMENTS

Take a look at Brockton Power Company, LLC v Planning Board of the City of Brockton, an August 19, 2011 decision of the Land Court. The Plaintiff had submitted an application for site plan review and the Planning Board refused to perform a technical review of the application materials because the Plaintiff has appealed an Order of Conditions issued by the Conservation Commission; the Planning Board took the position that it did not have to review the plan while the appeal was pending.
The Court found that there was nothing in the ordinance or the regulations stating that obtaining a final Order of Conditions was a prerequisite to site plan review. The Court concluded that the “Plaintiff is entitled to site plan review and final action by the Planning Board, and that the Planning Board may condition any approval on an unappealable approval of the [Superseding Order of Conditions].”

Judge Sands further reasoned: “It seems unlikely that the burden of technical review would become unfair simply because Plaintiff submitted revisions while an appeal was pending instead of waiting until it prevailed in the appeal. It is not uncommon for a substantial project to require approvals from multiple authorities with different jurisdictions and powers. For example, it is ‘well established that municipalities may enact more stringent requirements than those provided in the [WPA].’ FIC Homes v. Conservation Comm'n, 41 Mass.App.Ct. 681, 686, 673 N.E.2d 61 (1996). The Ordinance unquestionably gives the Planning Board power to review aspects of the site plan that are beyond the scope of the DEP and its SOC. Occasional conflict between authorities may be expected during the application process, but the possibility of such friction is not a valid justification for the Planning Board to refuse action on the matters properly within its jurisdiction and discretion.”

All too often municipal boards impose “ad hoc” burdens upon applicants which are not published within the By-Laws and Rules and Regulations. This is at least one case that attempts to remind boards that they must live within their own regulations and avoid making up rules as they go.

PAUL F. ALPHEN, ESQUIRE
BALAS, ALPHEN & SANTOS, P.C.
http://www.balasalphensantos.com/

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