Thursday, May 10, 2012


Another lesson arises from the recent Superior Court decision of Vaillancourt v Grey Wolf Realty, LLC, 2012 WL 1370997.  In 1985 the Tyngsborough Planning Board approved a special permit for a PUD with a condition that no future development shall be allowed on the site which would increase density or the number of occupants. In 1987 the land was rezoned to R-1 and the PUD zoning by-law was rescinded. From 1993 to 2006 numerous permits were granted for additional buildings without challenge. In 2006 Town Meeting voted to change the zoning for the property and voted to issue preliminary approval of a new multi-family development plan. The land owner applied for a special permit for the multifamily development including a request that the no-further-development condition be removed. The special permit was constructively approved “as a result of a lack of clerical help”. A resident of one of the condominium units constructed within the original PUD filed a timely appeal of the constructive approval.

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. 


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