The recent Land Court case of Georgetown Planning Bd. v. Georgetown Planning Bd., 2014 WL 3555971, 13 MISC 480712 (KCL) (Mass. Land. Ct. 2014), is perhaps one of the more "creative" ways around trying to undo a constructive endorsement of an ANR (Approval Not Required) plan. It ultimately was also not successful.
The gist of the case is that James Tolman submitted an ANR plan to the Georgetown Planning Board pursuant to M.G.L. c. 41, § 81P. Under that statute, the board must act upon the ANR plan. However, if the planning board does nothing
within twenty-one days after [the plan's] submission, it shall be deemed to have determined that approval under the subdivision control law is not required, and it shall forthwith make such endorsement on said plan, and on its failure to do so forthwith the city or town clerk shall issue a certificate to the same effect.
Id. And that's exactly what happened in this case. Because the board failed to act on Tolman's plan, it was constructively endorsed.
What makes this case interesting, however, is that the board attempted to appeal it's own "endorsement" in court. Specifically, the parties looked like this:
Georgetown Planning Board and Georgetown Building Inspector, Plaintiffs
Georgetown Planning Board and James Tolman, Defendants
Interesting, right? But perhaps not surprisingly, the Land Court didn't bite and ultimately the ANR endorsement remained in effect. There were a few problems with the merits and procedural tack of the Plaintiffs' case, according to the court:
- Plaintiffs tried to resolve this via summary judgment. Yet, as the court aptly points out, this kind of motion is "procedurally incorrect" in actions in the nature of certiorari, which this one was. This is because as part of their motion, the plaintiffs asked the court (without ever seeking an order to do so) to consider materials that went beyond the administrative record. A big no-no in certiorari/ANR cases.
- Notwithstanding the inability to bring in additional materials beyond the record below, there were other genuine issues of material fact precluding summary judgment.
- Neither the building inspector nor the planning board had the requisite standing to contest the constructive endorsement. As the court noted,
The reason for this is clear. To allow the board and building inspector to appeal the constructive endorsement would be completely contrary to those provisions of the statute and effectively make them meaningless. (citations omitted)
[T]he intent of the constructive endorsement provision in G.L. c. 41, § 81P is plain from the face of its words: if the board fails to act on an ANR application in timely fashion, it "shall be deemed to have deter-mined that approval under the subdivision control law is not required, and it shall forthwith make such endorsement on said plan, and on its failure to do so forthwith the city or town clerk shall issue a certificate to the same effect." (emphasis added). To allow the board to appeal removes the "shall" from the stat-ute and guts the legislative intent to require prompt, final rulings on ANR requests. (citations omitted)
Allowing the building inspector to appeal a constructive endorsement is likewise contrary to the overall statutory scheme for subdivision control. That scheme is "comprehensive," with specific, interrelated components and defined roles. (citations omitted) Under those provisions, the planning board is tasked with reviewing ANR applications, not the building inspector. The building inspector's role is to evaluate building permit applications for compliance with the requirements set forth in G.L. c. 41, § 81Y, nothing more.
Id. at *3. Instead, the only legitimate plaintiff in this kind of constructive endorsement case is "a demonstrably aggrieved third-party".
This case is ultimately a good reminder for planning boards that they must pay attention to the timelines and schedules for ANR plans that are submitted for their review because, ultimately, their failure to act could potentially result in an endorsement that they cannot undo. Of course, an unanswered question in the case is why the Board did not take what would have been the easier route and exercise its statutory authority under the Subdivision Control Act to rescind its constructive approval. See G.L. c. 41, §81W (a Board may modify, amend or rescind its constructive approval of an original plan).
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.