Agenda - Planning Commission - 08/04/2011

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Zoning Bulletin June 10, 2011 I Volume 5 I No. 11 board in Massachusetts] may require dedication of open space for public use and actual conveyance of that open space to the town in exchange for certain waivers without violating [state statutory law]." The Background/Facts: Robert and Caroline Collings and Linda S. Cornell (collectively, the "Collings") owned over 55 acres of land in the town of Stow, Massachusetts (the "town"). The Collings sub- mitted to the town's planning board (the "Board") a definitive sub- division plan seeking approval for five residential lots. As a condition of approval of the subdivision plan, the Board re- quired the Collings to modify the plan to show a minimum of 10 % (51 acres) of the land to be dedicated for open space with public access acceptable to the Board. Additionally, the Board required that the Collings offer the open space parcels: first to the town's conservation commission for open space and "passive recreation with public access in perpetuity"; or should the commission decline, "to a land trust or similar nonprofit organization subject to a Con- servation Restriction with the [t]own named as a benefitted party." The Collings appealed to Land Court. They argued that the Board exceeded its authority in imposing the condition that the Collings transfer open space to the conservation commission or a land trust. They pointed to Massachusetts statutory law, Mass. Gen. L. c. 41, 5, 81Q. Section 81Q prohibits, as a condition of approval of a subdivi- sion, dedication of subdivision land to the public use or conveyance to the town for any public purpose without just compensation. The Board maintained that the condition was permissible pursu- ant to Mass. Gen. L. c. 41, 5 81R. Section 81R provides that: "[a] planning board may ... where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law, waive strict compliance with its rules and regulations, and ... approve a plan on conditions limiting the lots upon which buildings may be erected ...." The Board maintained that § 81R gave it the authority to require open space for passive recreation with public access in exchange for strict compliance —waivers — from the requirements of the town's subdivision rules and regula- tions. Here, the Board had waived a street length regulation —al- lowing a 1300-foot cul-de-sac instead of limiting the Collings to a 500-foot cul-de-sac. Finding there were no material issues of fact in dispute, and de- ciding the matter on the law alone, the Land Court issued sum- mary judgment in favor of the Board. The judge reasoned that the Board's condition did not violate § 81Q because it was in exchange "for proper and rational consideration" —the waiver of the street length rule. The Collings appealed. © 2011 Thomson Reuters 5