Can The Developer Withdraw?

During a couple of the more recent Millbury Planning Board public hearings for the proposed Rice Pond Village project, the developer, Steven F. Venincasa, has stated (an ultimatum) that he could simply withdraw the special permit application and resubmit an even higher-density affordable housing development, with slightly less than 225 affordable apartments under Massachusetts General Law, Chapter 40B.

However, if you read Massachusetts General Law, Chapter 40A, Section 16, since the application has been submitted and the public notice published, it is our understanding based upon our due diligence that it is no longer the developer, Steven F. Venincasa’s decision, the developer would have to make a request for withdrawal and the Millbury Planning Board would have to take a vote to allow or reject the withdrawal of the special permit application or to act upon the special permit and deny it, thus not permitting any resubmission for a period of two years.

Under Massachusetts General Law, Chapter 40A, Section 16: No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority shall be acted favorably upon within two years after the date of final unfavorable action unless said special permit granting authority or permit granting authority finds, by a unanimous vote of a board of three members or by a vote of four members of a board of five members or two-thirds vote of a board of more than five members, specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the record of its proceedings, and unless all but one of the members of the planning board consents thereto and after notice is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered.

Any petition for a variance or application for a special permit which has been transmitted to the permit granting authority or special permit granting authority may be withdrawn, without prejudice by the petitioner prior to the publication of the notice of a public hearing thereon, but thereafter be withdrawn without prejudice only with the approval of the special permit granting authority or permit granting authority.

Massachusetts General Laws c. 40A, § 16, sets forth stringent requirements that, as a practical matter, work to prevent the landowner for reapplying for the same relief for two years after the date of final unfavorable action.

The purpose of Massachusetts General Laws c. 40A, § 16 is to relieve municipal boards from the tedium of hearing the same application resubmitted over and over again, while providing the opportunity for changing neighborhoods and changing minds of municipal boards to allow a development, which was initially denied.” — Hess Corp. v. Zoning Board of Appeals of the Town of Framingham, Land Court Miscellaneous Case No. 09 MISC 392913 (CWT) (Trombly, J.) (Oct. 21, 2009).

Robert Nislick, Attorney At Law

Based upon legal precedents, the neighborhood should continue to proactively participate in the public hearing process for the proposed Rice Pond Village project and demand that that the Millbury Planning Board deny any request for withdrawal made by the developer, Steven F. Venincasa, on behalf of the McLaughlin Family Living Trust, and instead vote to deny the special permit and all requested waivers. The neighborhood and we would imagine some Millbury Planning Board members, do not appreciate being given ultimatums by the developer, Steven F. Venincasa. A more prudent path forward would be to address and mitigate all reasonable neighborhood concerns and fully comply with the Millbury Zoning Bylaws and Subdivision Control Laws.

For the record, the neighborhood‘s opposition to the proposed Rice Pond Village project is not about NIMBYism. It is about safety and density. Simply put, Rice Road is not adequate for this scale and density of the proposed development and has far too many safety issues that have not been sufficiently addressed or mitigated by the developer, Steven F. Venincasa. The neighborhood is open to and would welcome the development of the McLaughin Family Living Trust property as not more than 15 single-family homes without the need for any special permits or waivers.

Reference:

Massachusetts General Laws, Chapter 40A

Navigating the Two-Year Waiting Period on Unfavorable Special Permit and Variance Applications in Under the Massachusetts Zoning Act

NIMBY, an acronym for the phrase “not in my back yard”, or Nimby, is a characterization of opposition by residents to proposed developments in their local area, as well as support for strict land use regulations. It carries the connotation that such residents are only opposing the development because it is close to them and that they would tolerate or support it if it were built farther away. The residents are often called Nimbys, and their viewpoint is called Nimbyism.