You
already know that MGL Chapter 41, Section 81R allows planning boards to issue
waivers of their subdivision rules and regulations when considering subdivision
applications. What happens when the rules of a planning board also say that
certain requirements are “nonwaivable”?
Judge Piper in the recent Land Court decision of Cater v. Bednarek,
98 MISC 250365 GHP, 2013 WL 431342 (Mass. Land Ct. Feb. 4, 2013) concluded that
a planning board regulation that says that certain regulations may not be
waived, may be waived; otherwise Section 81R would be trumped by a local
regulation. Judge Piper wrote: “I conclude, as I did at the time judgment
entered initially, that the purported ‘no waiver’ language of the Truro board's
subdivision rules and regulations, which suggests that the fourteen foot width
of road surface rule should ‘in no instance.. be waived,’ is merely precatory,
and does not as a legal matter prevent the board, if and when presented with a
meritorious application for waiver as to a road surface less than fourteen
feet, from granting that waiver. None of the parties have urged me to a
different view, all apparently accepting that under subdivision control law in
Massachusetts, a planning board may not lawfully bulletproof its regulations by
adopting one rule which makes some or all of the rest of them incapable of
waiver, no matter the circumstances which later present themselves when a
waiver is sought” Cater v. Bednarek, 98 MISC 250365 GHP, 2013 WL 431342
(Mass. Land Ct. Feb. 4, 2013).
As the recession comes to a close
and housing construction begins again, I look forward to hearing your stories
of how you explained this to your favorite planning board.
PAUL F.
ALPHEN, ESQUIRE
BALAS,
ALPHEN & SANTOS, P.C.paul@lawbas.com
http://www.lawbas.com
