Massachusetts SJC Rules on Availability of Process Zoning Freeze after Rescission of Constructive Approval
Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, 2009
The Massachusetts Supreme Judicial Court in Krafchuk v. Planning Bd. of Ipswich, SJC-10224 (Ireland, J., April 7, 2009), held that where the deliberative process between a planning board and an applicant results in disapproval of a timely filed definitive subdivision plan, but progress continues in a continuous fashion in which the applicant (1) timely files an appeal from the board’s decision and (2) submits within a reasonable time an amended plan that addresses the reasons for disapproval, the process freeze provision of G.L. c. 40A, § 6, continues to apply.
In Krafchuk, in order to avoid the application of amendments to the Ipswich zoning bylaw increasing relevant minimum lot size from one to two acres, the owners of a 23.5-acre parcel filed a preliminary subdivision plan in 2001 showing seven lots. The property owners filed a definitive plan less than seven months later in May 2002. Under the process freeze provision of G.L. c. 40A, § 6, the filing of a preliminary subdivision plan followed by the filing of a definitive plan less than seven months later freezes the zoning in place at the time of the filing of the preliminary subdivision plan.
After a lengthy public hearing process that lasted several months and included numerous plan revisions, the Planning Board voted in January 2003 to disapprove the amended plans and to grant waivers from strict compliance with several of the rules and regulations. The property owners asserted that the definitive subdivision plan filed in May 2002 had been constructively approved prior to the Planning Board’s decision due to the Board’s failure to take final action or file with the town clerk a notice of agreed extension within 90 days of the filing of the definitive plan. After the property owners claimed constructive approval, the Planning Board held a hearing on the issue and voted to both rescind any constructive approval and readopt its decision denying approval but granting several waivers.
After a change in Board membership, the property owners submitted a request to revoke the disapproval and approve the amended plan. The Board voted to approve that amended plan in December 2003. Neighboring property owners filed appeals of each of the Planning Board’s decisions, appealing the grant of waivers and the December 2003 approval.
The lower court concluded the process freeze that commenced with the filing of the preliminary subdivision plan in 2001 ended when the Planning Board acted pursuant to G.L. c. 41, § 81W, to rescind the constructive approval. The lower court therefore reasoned that the two-acre minimum lot size contained in the current bylaw applied to the amended plan filed by the property owners in December 2003.
The Supreme Judicial Court disagreed, however, concluding that the Board’s actions in rescinding the constructive approval and readopting its disapproval reinstated the “process” and, necessarily, the process freeze as well.
The Court stated that in order to preserve a process freeze, an applicant must take an appeal of a disapproval. Where the applicant also submits within a reasonable time an amended plan that addresses the reasons for disapproval, the process freeze provision of G.L. c. 40A, § 6, continues to apply.
For further information, please contact Brian C. Levey at blevey@bdlaw.com or Krista L. Hawley at khawley@bdlaw.com.
