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.
