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Monday, July 28, 2014

SUBDIVISION CONDITIONS DO NOT EXPIRE, BUT ARE NOT ETCHED IN STONE


In the Appeals Court case of Samuelson v. Planning Bd. Of Orleans, 86 Mass. App. Ct. 901 (2014), the court agreed with the Land Court that conditions imposed within a Definitive Subdivision approval do not expire after 30 years (as would a restriction on land in accordance with G.L. c 184 s 23). The court referred to Killorin v. Zoning Bd. of Appeals of Andover, 80 Mass.App.Ct. 655, 657, 955 N.E.2d 315 (2011) in which such a conclusion was already established as applied to conditions within a Special Permit.

 

But, that does not mean that subdivision or special permit conditions can never be removed or modified; it means that the party seeking the removal or modification must do so with the proper procedure, i.e an application for a subdivision modification in accordance with G.L. c41 s81W. However, in the Samuelson case, the applicant never sought a modification, and the court said:

 

“The fact that the condition imposed by the board in 1975 did not automatically expire in 2005 does not necessarily mean the Kennedys lack any potential recourse. Subdivision approvals are not permanently etched in stone, but can be modified in accordance with the provisions of G.L. c. 41, § 81W. Some claim can be made that that is in fact what the board did here, and the Kennedys now argue that the board's decision should be analyzed and upheld on that basis. However, our review of the summary judgment record reveals that the Kennedys never raised such an argument to the judge below. Moreover, despite the fact that the judge repeatedly stated that the Kennedys never requested a modification of the 1975 approval pursuant to § 81W, and that the board never treated their request as such, the Kennedys made no argument in their opening appellate brief that the judge erred in this regard. Instead, they raised the § 81W issue for the first time in their reply brief. Accordingly, even had the Kennedys raised the issue below, that argument was waived.” Samuelson v. Planning Bd. Of Orleans, 86 Mass. App. Ct. 901 (2014)



Paul F. Alphen, Esquire

Alphen & Santos, P.C.

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