Yet another great true-life story that only a land use attorney can truly appreciate. Imagine the frustration of those who were directly involved: they have a great story to tell, but no audience, whereas no sane person is going to take the time to listen to the crazy esoteric details of conditional approvals and constructive approvals, etc. This is why it is better to be a criminal attorney.
The Court referred to Mark Bobrowski’s book and Barlow v. Planning Bd or Wayland, 64 Mass App Ct 314, 319 (2005) to support the proposition that Planning Boards can amend a previously granted special permit. The Court looked at the history of the property, including the Town Meeting votes to change the zoning and to support the preliminary plan, as evidence of significantly changed circumstances that would justify the Planning Board to approve a modification to the special permit, and affirmed the constructive approval.
The moral of the story: When we submit special permit applications not only do we have to propose language regarding the standard to be used to demonstrate that the permit has been properly “exercised” pursuant to the Lobisser v Bellingham decision, we also have to be alert to conditions that should no longer apply if the land is subsequently rezoned or the special permit is otherwise unnecessary.
PAUL F. ALPHEN, ESQUIRE
BALAS, ALPHEN & SANTOS, P.C.