remanding case where judgment had upheld constructive approval of subdivision plan so planning board could consider taking action pursuant to G. L. c. 41, § 81W, where board plainly had intended to approve plan only with certain conditions
How later courts described this case
- remanding case where judgment had upheld constructive approval of subdivision plan so planning board could consider taking action pursuant to G. L. c. 41, § 81W, where board plainly had intended to approve plan only with certain conditions
- claim that planning board’s subdivision approval letter was “too vague in describing certain of its conditions — e.g., that the owner preserve as many trees ‘as possible,’ that owner build a retaining wall if it is ‘not possible’ to blend the edges of the subdivision — invokes a criterion of definiteness impractical or excessively stringent for the items in question”
- “If one tried to appeal solely from the late-filed approved plan, the appeal would be a nullity because the plan was a nullity”
- “the fifing must also have been accomplished by the statutory or extended date in order to avoid the consequence of a constructive approval”
Written by the judges who cited it.
The opinion
Fine, J.
(dissenting). Concerning section 2 of the opinion, I cannot see the logic of giving effect to a constructive grant when the applicant for subdivision approval is willing to accept the conditions set forth in a less favorable late-filed written decision granting the application, and no one has changed his position in the interim in good faith reliance on the constructive *660 grant. None of the cases cited to support the majority view involved a situation comparable to the present one. In the present situation, it is the constructive grant, rather than the later-filed decision, that should be regarded as a nullity. The public interest would be better served in general by having effect given to conditions imposed upon applicants in reasoned decisions and acceptable to them than to approvals based on official nonaction. It is difficult to see how the goals of orderliness of procedure and reliability of the public record would be adversely affected by giving effect, in such circumstances, to the actual decision. A written decision with conditions accepted by the applicant would appear in the public record. And any aggrieved party would have the right to appeal from the board’s actual decision. In this case the plaintiff, having taken such an appeal, was not misled by anything in the public record.