Massachusetts SJC Rules on Availability of Eight-Year Zoning Freeze in Cases of Constructive Approval of Subdivision Plans
Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, 2009
The Massachusetts Supreme Judicial Court has ruled that a definitive subdivision plan constructively approved due to the inaction of a planning board does not enjoy the protections of the eight-year zoning freeze provided by G.L. c. 40A, § 6, until the town clerk has issued the certificate of constructive approval. In Kitras v. Zoning Admin. of Aquinnah, 453 Mass. 254 (2009), the Court ruled that the issuance of the certificate of approval is the “functional equivalent” of the planning board’s endorsement of a subdivision plan and therefore a prerequisite to establishing zoning freeze protection.
In Kitras, the Aquinnah Planning Board voted to nominate the town as a “district of critical planning concern” (“DCPC”) under the authority of the Martha’s Vineyard Commission. As part of the DCPC process, the Town proposed to adopt changes to its zoning bylaw including limits on building heights and expanded frontage requirements.
In order to avoid application of these zoning changes to the property, the plaintiff property owner filed a preliminary subdivision plan with the Planning Board prior to the town adopting the changes to its zoning bylaw and a definitive subdivision plan less than seven months later. Under G.L. c. 40A, § 6, the filing of a definitive subdivision plan, or a preliminary plan followed within seven months by a definitive plan, “freezes” the zoning applicable to the land shown on the plan to that in effect at the time the plan is filed both during the review of that plan (the so-called “process freeze”) and, if it is approved, for eight years from the date of the endorsement of the plan. By filing these subdivision plans, the property owner sought to secure both zoning freezes so its property would not be subject to the zoning changes adopted as part of the DCPC process – a so-called “process freeze” and an eight-year subdivision freeze.
In Kitras, however, the Planning Board did not act on the submitted subdivision plans within the time allowed by the Subdivision Control Law, G.L. c. 41, § 81U, so the Board did not “endorse” the plan. Rather, the property owner asserted that the subdivision plan had been constructively approved pursuant to G.L. c. 41, § 81V due to the Board’s inaction. The town clerk, however, refused to issue a certificate of constructive approval, apparently believing the definitive plan had been rejected by the Planning Board. The property owner argued that the constructive approval took effect automatically and the property was subject to the zoning freeze despite the absence of the certificates.
In this case, the Court clarified when constructive approval of a definitive subdivision plan becomes final and when a developer is entitled to the eight-year zoning freeze. The Court noted that a constructive approval “becomes final” upon the expiration of a twenty-day appeal period or court decision resolving any appeal, and that the town clerk’s certificate merely memorializes that finality. The “final action” is determined by the planning board.
However, while the constructive approval of the plaintiff’s plan became final upon expiration of the twenty-day appeal period, the eight-year zoning freeze did not commence because the town clerk did not issue a certificate memorializing that final approval. Under G.L. c. 40A, § 6, the zoning freeze commences “from the date of the endorsement of such approval.” The Court found that the issuance of the certificates by the town clerk is the “functional equivalent” of endorsement by the Planning Board. Therefore, without the certificate, there was no triggering event for the eight-year freeze.
In this case, the property owner could not secure the certificate because the Appeals Court ruled in a previous lawsuit that the property owner’s attempt to secure a court order ordering the clerk to issue the certificate was untimely. Therefore, the plaintiff was left without a means of triggering the zoning freeze. In future cases, in order to secure a zoning freeze through constructive approval of a definite subdivision plan, property owners should seek certificates of constructive approval in a timely manner and, if a clerk refuses to issue such a certificate, not delay in filing a mandamus action with a court.
For further information, contact Brian C. Levey at blevey@bdlaw.com or Krista L. Hawley at khawley@bdlaw.com.
