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.
