Agenda - Planning Commission - 08/04/2011

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June 10, 2011 I Volume 5 I No. 11 Zoning Bulletin DECISION: Vacated, and matter remanded. The Appeals Court of Massachusetts held that the Board exceed- ed its authority under 81Q when it required, as a condition of subdivision plan approval, that the Collings reserve open space for public use and transfer the property to the town or a land trust. In reaching its decision, the Appeals Court looked to the language of § S 81Q and 81R. The court agreed that, in general: "a condition requiring the dedication of open space which in effect reasonably limits the number of buildable lots, imposed out of safety concerns arising from the length of the street, would not run afoul of § 81Q." However, it found that, here, the Board "did not limit itself to a rea- sonable open space requirement"; instead, it "went much farther and required dedication of open space for public use, including the actual transfer of that open space to the town or a land trust." Moreover, disagreeing with the Land Court, the Appeals Court found the condition was "imposed without compensation and [did] not serve the purposes of the subdivision control law." The court found "no authority for the proposition that the grant of a waiver may constitute 'just compensation' as that term is used in § 81Q." "That waivers from some of the subdivision rules and regulations [were] required [did] not authorize [the Board] to exact conditions expressly prohibited by 5 81Q, and unrelated to the regulation sought to be waived or the purposes of the subdivision control law." Furthermore, the court said, the prohibition of § 81Q applied "where a planning board requires a subdivision applicant to grant land for a public purpose unrelated to adequate access and safety of the subdivision." The court found that was exactly what happened here: the Board failed to identify concerns within the scope of the subdivision control law that justified the transfer of the property to the public without compensation which were not already addressed by simply requiring a dedication of open space (without a transfer of the property to the public). The court concluded that, while an open space requirement may be acceptable, the dedication of the open space for public use and the transfer to the town had no rela- tion to the waiver of the dead-end street length rule or safety issues. See also: Sullivan v. Planning Bd. of Acton, 38 Mass. App. Ct. 918, 645 N.E.2d 703 (1995). Case Note: In its decision, the court noted that it thought that "if the Legislature intended to eliminate the prohibition of § 81Q where waivers are required in the context of subdivision control, it would have expressly so provided." 6 © 2011 Thomson Reuters l