Agenda - Planning Commission - 02/05/2009

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November 25, 20081 Volume 2 i No. 22 /..--,.,,\~ j ternative" plan differing "substantially" from the. conventional plan in various ways suggested by the by-law. Section 8.5 empowered the Board to approve whichever oJ the two plans ."best promote[d] the objectives", of the by-law. Those objectives included: better siting of buildings; better protection of land not suited for development; permanent preservation of open space for conservation or recreational use; wetlands protection; preservation of scepic vistas; and street appearance:. In accordance with ~ 8.5 of the town's by-law, WSDC submitted a special permit application; a "conventional" plan, and an "alternative" plan to the town's planning board (the "Board"). The Board denied WSDC the requested special permit. It did so be- cause it found the conventional plan submitted by WSDC did not comply with the town's rules and regulations governing the subdivision of land. Specifically, the town's rules and regulations limited dead-end roads to a maximum of 500 feet, and WSDC's conventional plan required a waiver of that limitation. Since there was no complying conventional plan, the Board did not separately consider WSDC's alternative plan. WSDC appealed. It asserted that an easement it had over a neighbor- ing subdivision would have avoided the need for a waiver from the dead- end road limitation. It argued that the Board deprived it of the full use of '.0) its easement when it restricted the use of that easement to emergency ve- . hicles use. It further argued that the Board was without power to deprive it of the use of its eilsement because an "easement can be extinguished only by grant; release, abandonment, estoppel or prescription." The land court affirmed the Board's denial of WSDC's special permit application. It found WSDC's easement had not been extinguished by the Board, but merely limited in its use. It also declared that ~ 8.5 of the town's zoning by-law was in conflict with the uniformity requirement of Mass. Gen. L. c. 40A, ~ 4, and was therefore invalid. That statute re- quired a zoning ordinance operate "uniformly within the ~strict for each class or kind of structures or uses permitted. " WSDC appealed. The Board also cross-appealed the ruling that ~. 8.5 was invalid. DECISION: Affirmed as modified. Th~ Appeals Court of Massachusetts first held that the Board did have the pg:wer to restrict WSDC's use of its easement. It agreed with WSDC that an "easement c:an be extinguished only by grant, release, abandon- meni, estoppel or prescription.". However, it found that the Board had not," a::~ WSDC claimed, illegally extinguished WSDC's easement. Rather, as ;.thKland court had concluded, the Board merely limited WSDC's use ) 'o{the easement by restricting its use to emergency vehicles only. It also ./ found that WSDC had agreed to the use limitation on the easement be- cause the limitation was set forth in conditions required for approval of @ 2008 Thomson ReuterslWest 7 39