Agenda - Planning Commission - 10/09/2014

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August 25, 2014 i Volume 8 I Issue 16 Zoning Bulletin Conditions or restrictions, unlimited as to time, by which the title or use of real property is affected, shall be limited to the term of thirty years after the date of the deed or other instrument or the date of the probate of the will creating them, except in cases of gifts or devises for public, charitable or religious purposes. . . . DECISION: Judgment of land court affirmed. The Appeals Court of Massachusetts held that the conditions imposed by the Board in 1975 were not subject to the time limitations of G.L. c. 184, § 23. In so holding, the court pointed to its holding in prior case law, where it had concluded that the statutory language of G.L. c. 184, § 23 "strongly implies that the restrictions controlled by the statute are those created by deed, will, or other instrument." The court concluded that the statute and its 30-year limita- tion on conditions does not apply to land use restrictions imposed under mu- nicipal regulation (i.e., conditions to the discretionary grant of regulatory ap- proval under the police power). See also: Killorin v. Zoning Bd. of Appeals of Andover, 80 Mass. App. Ct. 655, 955 N.E.2d 315 (2011). Case Nate: In its decision, the court noted that the Kennedys could have sought modification of the 1975 conditions in accordance with G.L. c. 41, § 81 W—which authorizes a planning board to modify, amend, or rescind its approval of a plan of a subdivision, or to require a change in a plan as a condition of its retaining the status of an approved plan. Argu- ably, that is what the Board had done here. However, the court found that the Ken- nedys had failed to raise the argument in their appellate brief that the Board's decision should be analyzed and upheld on that basis, and therefore, the court concluded that the argument was waived. Telecommunications Act —City denies two cell phone tower applications, conditionally approves third Applicant contends City decisions are not supported by substantial evidence and therefore violate Telecommunications Act Citation: T-Mobile South LLC v. City of Milton, Ga., 2014 WL 2766092 (N.D. Ga. 2014) GEORGIA (06/18/14)—This case addressed the issue of whether, as required by the federal Telecommunications Act of 1996, substantial evidence supported a City's decision to deny two user permit applications for proposed cell phone towers and to conditionally approve a third such permit application. 6 © 2014 Thomson Reuters