Subdivision Control Law Overview (1998)COMMONWEALTH OF MASSACHUSETTS
Argeo Paul Cellucci, Governor
Jane Wallis Gumble, Director
SUBDIVISION CONTROL
AN OVERVIEW OF THE SUBDIVISION
CONTROL LAW
Department of Housing & Community Development
October, 1996
Revised August, 1998
Dear Local Official:
The Department of Housing and Community Development provides a wide range of technical assistance,
information services, and grant programs to municipal governments throughout the Commonwealth to
assist communities in solving local programs. We are pleased to offer planning boards, other municipal
officials, and interested persons this edition of An Overview of the Subdivision Control Law.
Our Department has received numerous questions over the years concerning the operation of the
Subdivision Control Law. This publication highlights many of the substantive and procedural
requirements that apply to subdivision and non-subdivision plans which require an endorsement or an
approval by a planning board. We have also noted interesting court cases that have looked at a variety of
issues dealing with subdivision control. This publication should be used as a resource and should not be
used as a substitute for your reading of either the statute or the court cases that have interpreted the law.
Whenever a question of legal interpretation arises, local officials should always seek the advice of their
municipal counsel.
We trust that this publication and the services that the Department of Housing and Community
Development provides will be helpful to you in carrying out your responsibilities. Questions concerning
this publication should be directed to Donald J. Schmidt at 617/727-7001 x482 or call our toll free line at
1-800-392-6445.
Sincerely,
Jane Wallis Gumble
Director
P:\scl-L-ovlt97.doc
DEPARTMENT OF
HOUSING &
COMMUNITY
DEVELOPMENT
Argeo Paul Cellucci, Governor
Jane Wallis Gumble, Director
COMMONWEALTH OF MASSACHUSETTS
ARGEO PAUL CELLUCCI, GOVERNOR
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
JANE WALLIS GUMBLE, DIRECTOR
SUBDIVISION CONTROL
AN OVERVIEW OF THE SUBDIVISION CONTROL LAW
MGL, CHAPTER 41, SECTIONS 81K-81GG
October, 1996
Revised August, 1998
Prepared by
Department of Housing and Community Development
Donald J. Schmidt, Principal Planner
TABLE OF CONTENTS
Page
INTRODUCTION 1
PURPOSE OF THE SUBDIVISION CONTROL LAW 2
ACCEPTANCE OF THE SUBDIVISION CONTROL LAW 3
Subdivision Control as of January 1, 1954 3
Subdivision Control after January 1, 1954 4
PLANNING BOARD RULES AND REGULATIONS 5
Approval of Plan Which Complies With Regulations 5
Conditional Approval 5
Clarity of Regulations 6
Regulations Relating to Lots and Zoning Compliance 7
Regulations Relating to Adequacy of Public Way 8
Public Hearing Requirement 10
Filing Requirement 10
DEFINITION OF SUBDIVISION 11
APPROVAL NOT REQUIRED PLANS 13
Qualified Ways 13
Adequate Frontage 14
Vital Access 15
Adequacy of a Public Way 15
Adequacy of a Private Way 17
Adequacy of a Previously Approved Subdivision Way 18
Adequacy of the Access 18
Illusory Access 21
81L Exemption 23
Perimeter Plans 24
One Lot Plans 25
Plans Showing Zoning Violations 29
Page
SUBDIVISION ADMINISTRATION 30
Voting Requirements 31
Approval Not Required Plans 32
Constructive Approval of ANR Plans 33
Preliminary Plans 33
Definitive Plans 34
Board of Health Action 34
Planning Board Waiver 35
Planning Board Action 35
Constructive Approval of Definitive Plan 37
Performance Guarantee and Endorsement 38
Recording Definitive Plan 39
Completion of Work 40
Modifications, Amendments or Rescissions 40
GRANDFATHERING 42
Unregistered Land 42
Registered Land 44
ZONING FREEZES 45
Separate Lot Protection 45
Common Lot Protection 46
Preliminary Plan Protection 48
Definitive Plan Protection 49
ANR Plan Protection 51
1
INTRODUCTION
Subdivision control laws in Massachusetts originated in a concern over the effect of the
subdivision of land and sale of private land on planning and the development of streets
both public and private within a community. The first comprehensive subdivision
control statute was enacted exclusively for the City of Boston in 1891. It provided that
no person might open a public way until the layout and specifications were approved by
the street commissioners. By 1916 similar powers were conferred on Boards of Survey
in many cities and towns throughout the Commonwealth. In 1936 the subdivision
control powers were expanded and conferred on planning boards. The Legislature
made a comprehensive revision to the statute in 1953 which marked the beginning of a
separate Subdivision Control Law, MGL, Chapter 41, Sections 81K through 81GG.
Although this statute has been amended since 1953, most of the provisions are
essentially in the form as we know now it.
The 1953 amendments to the subdivision control legislation were adopted largely upon
the basis of the recommendations of a Special Commission on Planning and Zoning.
The Commission was created by the Legislature in 1951 to study the zoning and
planning laws of the Commonwealth. In reviewing the Subdivision Control Law, the
Commission found there was a need to revise the law because it had become difficult
even for skilled and experienced conveyancers examining titles to lots in a subdivision
to ascertain whether the Subdivision Control Law was applicable. Also, the
Commission found that it was extremely difficult for the Registers of Deeds to decide
whether to accept a plan for recording.
Among other things, the Commission found that the then existing subdivision control
statute was not sufficiently clear that the primary purpose of the law was regulating the
design and construction of ways in subdivisions. The Commission further noted that
some well-intentioned but overzealous planning boards attempted to use their powers of
approving or disapproving plans of proposed subdivisions to enforce conditions
intended for the good of the public, but not relating to the design and construction of
ways within subdivisions. The Commission’s report recommended inserting a purpose
section into the subdivision control law to clarify the language of the statute,
“especially in some particulars where overzealous city planners have attempted to
extend their authority to an extent greater than was intended by the framers of the
law.” As a consequence of the Commission’s report a new purpose section (81M) was
added to the Subdivision Control Law.
2
PURPOSE OF THE SUBDIVISION CONTROL LAW
The Subdivision Control Law is a comprehensive statutory scheme designed for the
safety, convenience, and welfare of the inhabitants of the cities and towns. It
accomplishes this purpose by, among other things, regulating the laying out and
construction of ways in subdivisions.
MGL, Chapter 41, Section 81M states in part that the:
... subdivision control law has been enacted for the purpose of
protecting the safety, convenience and welfare of the inhabitants of the
cities and towns ... by regulating the laying out and construction of ways
in subdivisions providing access to the several lots therein, but which
have not become public ways, and ensuring sanitary conditions in
subdivisions and in proper cases parks and open areas. The powers of a
planning board ... under the subdivision control law shall be exercised
with due regard for the provision of adequate access to all lots in a
subdivision by ways that will be safe and convenient for travel; for
lessening congestion in such ways and in the adjacent public ways; for
reducing danger to life and limb in the operation of motor vehicles; for
securing safety in the case of fire, flood, panic and other emergencies;
for ensuring compliance with the applicable zoning ordinances or by-
laws; for securing adequate provisions for water, sewerage, drainage,
underground utility services, fire, police, and other similar municipal
equipment, and street lighting and other requirements where necessary
in a subdivision; and for coordinating the ways in a subdivision with
each other and with public ways in the city or town in which it is located
and with the ways in neighboring subdivisions.
In a leading case interpreting the purpose of the Subdivision Control Law the court
relied heavily on the legislative history of the Subdivision Control Law. The court, in
Daley Construction Company, Inc. v. Planning Board of Randolph, 340 Mass. 149
(1959), held that the Planning Board lacked authority to disapprove a plan because the
proposed subdivision would seriously deplete existing water sources. In reaching this
conclusion, the court emphasized that Section 81M:
shows legislative concern primarily with (a) adequate ways to provide
access furnished with appropriate facilities and (b) sanitary conditions of
lots ... Read in context, the words, ‘securing adequate provision for
water’ seems to us to mean installation of an adequate system of water
pipes rather than an adequate supply of water, which, if not supplied
from wells or other privately owned sources, is usually a matter of
municipal water supply or water company action.
3
ACCEPTANCE OF THE SUBDIVISION CONTROL LAW
The Subdivision Control Law is in effect in any municipality, except Boston, which has
accepted the statute. The question of whether the Subdivision Control Law shall take
effect in a particular community is decided by the local legislative body. An interesting
peculiarity of the current law in this regard is that the question of whether or not the
Subdivision Control Law becomes effective is posed in a negative form. Section 81N
provides that in any community which has a Planning Board, as defined in Section
81L, the Subdivision Control Law is in effect unless the local legislative body votes not
to accept the provisions of the law. For more detailed information regarding the
acceptance of the Subdivision Control Law please refer to Sections 81N and 81EE.
Subdivision Control as of January 1, 1954
The Subdivision Control Law is not in effect in a municipality unless the board having
the power of subdivision control on January 1, 1954 transmitted a statement to the
Register of Deeds and the Recorder of the Land Court within sixty days after January
1, 1954. Unless such statement was transmitted within sixty days, or the municipal
clerk had prior to January 1, 1954 notified the Register and Recorder of the
establishment of a Planning Board under the earlier provisions of law, the operation of
the Subdivision Control Law was suspended until the municipal clerk notified the
Register and Recorder that the Subdivision Control Law was in effect.
The statement to the Register and Recorder should have included an opinion of the
board having subdivision control powers that the Subdivision Control Law is in effect
in the community. The statement should have also included a copy, certified by the
municipal clerk, of the vote and date of the City Council or Town Meeting action
under which the Subdivision Control Law took effect. If there was no vote, then the
board having subdivision control powers should have referenced any special statute
under which the Subdivision Control Law was established in the municipality.
Any Planning Board having subdivision control powers on January 1, 1954, should
have also transmitted a copy of their subdivision rules and regulations, certified by the
municipal clerk, to the Register of Deeds and Recorder of the Land Court within sixty
days after January 1, 1954. If the copies of the subdivision rules and regulations were
never transmitted to the Register or Recorder, the operation of the Subdivision Control
Law would have been suspended in your community until such copies were so
transmitted.
4
Subdivision Control after January 1, 1954
If the Subdivision Control Law was established in a municipality after January 1, 1954,
it did not take effect until the Planning Board notified the Register of Deeds and the
Recorder of the Land Court that the municipality accepted the provisions of the
Subdivision Control Law. The notice should have included a copy of the City Council
or Town Meeting vote, certified by the municipal clerk, under which the provisions of
the Subdivision Control Law were accepted.
The Planning Board was also required to notify the Register of Deeds and the Recorder
of the Land Court that the Board had adopted its rules and regulations and to send a
copy of their rules and regulations, certified by the municipal clerk, to both the
Register and Recorder.
5
PLANNING BOARD RULES AND REGULATIONS
Once the Subdivision Control Law is operable in a community, Section 81Q requires a
Planning Board to adopt reasonable rules and regulations relative to subdivision control
which are not inconsistent with the Subdivision Control Law. The rules and regulations
must specify the requirements of the Board relative to the location, construction, width,
and grades of proposed ways and the installation of municipal services. The reason
Section 81Q mandates that the Planning Board adopt reasonable rules and regulations is
so that a prospective subdivider will know in advance what will be required of him in
the way of street construction and public utilities. For more detailed information
regarding the adoption and content of Planning Board regulations, please refer to
Section 81Q.
Approval of Plan Which Complies With Regulations
A Planning Board must approve a definitive subdivision plan which complies with the
Board’s rules and regulations and the recommendations of the Board of Health.
As the court noted in Pieper v. Planning Board of Southborough, 340 Mass. 157
(1959), the legislative history of the Subdivision Control Law “gives no indication that
planning boards were to have the freedom to disapprove plans which comply with
applicable standards merely because the board feels general public considerations make
such action desirable.” In Pieper, the Planning Board had disapproved a definitive plan
solely on the ground that the Board felt it essential to have an engineering survey of the
town before approving any further subdivision of property. The intent of the
Subdivision Control Law, as noted in Section 81M, is that a subdivision plan shall be
approved by the Planning Board if the plan conforms to the recommendation of the
Board of Health and the rules and regulations of the Planning Board.
Conditional Approval
A Planning Board may not attach conditions to its approval of a definitive subdivision
plan unless its regulations clearly authorize the Board to impose such conditions.
In Castle Estates, Inc. v. Park and Planning Board of Medfield, 344 Mass. 329 (1962),
the court found that the Planning Board had imposed improper conditions when
approving a subdivision plan. The Board had approved a subdivision plan on the
conditions that a water distribution system be connected with the public water system
and that a drainage easement be obtained from another property owner. In reviewing
the Board’s regulations the court found no explicit regulation which would permit the
Board to impose such conditions. The court stated that:
6
The planning board ... cannot impose conditions of this type upon its
approval of subdivisions, where it has not included (or incorporated by
reference to other regulatory provisions) in its regulations provisions
defining (a) what ways and utilities may be required in connection with
subdivision plans; (b) what standards are to be applied by the board in
exercising any powers given to it by the regulations to withhold the
approval and to impose conditions; and (c) what those powers are. The
subdivision control law attaches such importance to planning board
regulations as to indicate to us that they should be comprehensive,
reasonably definite, and carefully drafted, so that owners may know in
advance what is or may be required of them and what standards and
procedures will be applied to them. Without such regulations, the
purposes of the law may easily be frustrated.
Clarity of Regulations
Planning Board regulations must be sufficiently clear so that landowners will know in
advance what is or may be required.
In Mac-Rich Realty Construction v. Planning Board of Southborough, 4 Mass. App.
Ct. 79 (1976), the Planning Board disapproved a definitive plan because a street had an
inadequate width of pavement and right of way. The Board determined that a forty-four
foot right of way and twenty-eight feet of pavement would be necessary to ensure safe
vehicular traffic. The Board’s regulations required all roadways to have a paved width
of twenty-four feet and a minimum right-of-way width of forty (40) feet. The
regulations further stated that a greater width may be required by the Board when
deemed necessary for present and future vehicular traffic. The court found that the
regulations gave adequate notice that the Board may, in its discretion, require a greater
width.
The developer also argued that the Board’s attempt to require bituminous concrete
berms was also invalid since the Board’s regulations did not specifically require
concrete berms. The regulations made reference to berms but did not specify the
material to be used in their construction. The court noted that it appeared that the intent
of the regulation was to consider the construction of berms on a case by case basis so
that the Planning Board could determine what might be appropriate for a particular
development. The Planning Board’s action was valid since the regulation sufficiently
informed the developer that a berm of some type would be required. Also, in Canter v.
Planning Board of Westborough, 7 Mass. App. Ct. 805 (1979), a regulation which
required that a subdivision plan provide for pedestrian ways “normally” called for in
the Board’s regulations was sufficiently clear and it allowed the Board to make a case
by case determination as to what might be appropriate for a particular subdivision.
7
However, regulations which required subdividers to give “due consideration ... to the
attractiveness of the street layout in order to obtain the maximum livability and amenity
of the subdivision” and to show “due regard ... for all natural features such as large
trees, water courses, scenic points, historic spots, and similar community assets,
which, if preserved, will add attractiveness and value to the subdivision” were held
invalid. In Chira v. Planning Board of Tisbury, 3 Mass. App. Ct. 433 (1975), the
court found that such regulations failed to set forth clear and objective standards.
We need not decide whether regulations dealing with aesthetic
considerations and environmental protection are permissible under the
Subdivision Control Law, as we are of the opinion that the provisions ...
are not drafted in a way as to be enforceable. Whether a proposed
subdivision meets such standards as “attractiveness of the street layout”
and “maximum livability and amenity” and whether the preservation of
a particular natural feature “will add attractiveness and value to the
subdivision,” and what constitutes “due consideration” and “due
regard,” are essentially matters of opinion - presumably the collective
opinion of the members of the planning board at the time a particular
plan is being evaluated. ... The regulations fail to fulfill the requirement
of apprising owners “in advance what is or may be required of them and
what standards and procedures will apply to them.”
Regulations Relating to Lots and Zoning Compliance
A Planning Board may adopt a regulation requiring subdivision plans to be in
compliance with local zoning requirements. Even in the absence of any express
provision in the Planning Board’s regulations requiring compliance with local zoning,
the court concluded, in Beale v. Planning Board of Rockland, 423 Mass. 690 (1996),
that a Planning Board can disapprove a subdivision plan which does not conform to the
zoning bylaw.
However, except for requiring compliance with zoning, Section 81Q specifically
prohibits a Planning Board from adopting regulations relating “to the size, shape,
width, frontage or use of lots within a subdivision, or to the buildings which may be
constructed thereon ...”
The purpose of this provision is to confine the scope of a Planning Board’s discretion
to prevent the Board from intruding into the sphere of zoning. However, as the court
noted in SMI Investors (Deleware), Inc. v. Planning Board of Tisbury, 18 Mass. App.
Ct. 408 (1984), Section 81Q does not preclude a Planning Board from taking
cognizance of a lot layout which directly impinges on matters laying within the proper
sphere of Planning Board regulations such as means of access for vehicles and utilities.
8
This provision does not prevent a Planning Board from seeking information or
requiring the submission of an environmental impact statement. In Loring Hills
Developers Trust v. Planning Board of Salem, 374 Mass. 343 (1978), the Planning
Board disapproved a subdivision plan because the developer had failed to submit
information requested by the Planning Board. The Planning Board had adopted
regulations which required the subdivider to submit information relating to dwelling
size, type, location and population for purposes of analysis of sanitary and storm sewer
systems and the water system. The Board’s regulations also asked for a topographic
map showing proposed grades at two-foot contours and an impact statement showing
the effect of the proposed development on schools, police and fire protection, traffic
patterns and other municipal services. The developer argued that the regulations
requiring the requested information were not authorized under the above noted
provision in Section 81Q. Although Section 81Q prohibits the Planning Board from
regulating the subjects mentioned it does not forbid the Board from seeking information
about those matters. The court stated that:
The regulations may require the developer to supply information
reasonably necessary to enable the boards to perform their duties. For
example, Section 81Q provides that, in establishing requirements
regarding ways, ‘due regard shall be paid to the prospective character of
different subdivisions, whether open residence, dense residence,
business or industrial, and the prospective amount of travel upon various
ways therein, and to adjustment of the requirements accordingly.’ In
applying such requirements, we think the developer may be required to
furnish information about the ‘prospective character’ of the subdivision,
even though the information in a sense ‘relates’ to the ‘use of lots’
within subdivisions.
Regulations Relating to Adequacy of Public Way
A Planning Board can consider the adequacy of a public way providing access to a
proposed subdivision.
The issue of whether a Planning Board has the authority to disapprove a subdivision
plan due to traffic problems and access problems caused not by any inadequacy of a
way within a subdivision but rather by the inadequacy of a public way adjacent to or
providing access to the proposed development was considered in North Landers Corp.
v. Planning Board of Falmouth, 382 Mass. 432 (1981). The Planning Board had
adopted the following regulations concerning the adequacy of ways outside the
subdivision.
9
Adequate Access From Public Way. A. Where the street system
within a subdivision does not connect with or have, in the opinion of the
Board, adequate access from a .... public way, the Board may require,
as a condition of approval ... that such adequate access be provided by
the subdivider, and/or that the subdivider make physical improvements
to and within such a way ... in accordance with the provisions of ...
these regulations from the boundary of the subdivision to a [public] way.
B. Where the physical condition or width of a public way from which a
subdivision has its access is considered by the Board to be inadequate to
carry the traffic expected to be generated by such subdivision, the Board
may require the subdivider to dedicate a strip of land for the purpose of
widening the abutting public way to a width at least commensurate with
that required within the subdivision, and to make physical improvements
to and within such public way to the same standards required within the
subdivision. Any such .... work performed within such public way shall
be made only with permission of the governmental agency having
jurisdiction over such way, and all costs of any such widening or
construction shall be borne by the subdivider.
The Planning Board disapproved a subdivision plan citing as one of its reasons the
inadequacy of a public way which would carry the traffic generated by the subdivision.
North Landers appealed the Planning Board’s decision and argued that the Subdivision
Control Law does not permit evaluation of ways outside the subdivision. The court
determined that the Subdivision Control Law does not place such a limitation on the
Planning Board and the condition of adjacent public ways outside the subdivision may
be considered during the approval process. The court also noted that the Planning
Board’s regulation requiring “adequate access” was not so vague that it failed to
sufficiently inform the subdivider of what might be required in order to obtain ultimate
approval of his plan.
However, a Planning Board has no authority to require improvements to a way where
the subdivider does not have the ability to make the improvements. In Sullivan v.
Planning Board of Acton, 38 Mass. App. Ct. 918 (1995), the Planning Board approved
a subdivision plan on the conditions that the subdivider construct an additional travel
lane on Route 2A with no curb cuts. The Planning Board also required the reservation
of an easement along a town road for the construction of an additional lane of traffic
from Route 2A to the proposed subdivision road.
10
The improvements to Route 2A imposed by the Planning Board required the approval
of the State Department of Public Works. It was decided that those conditions were
invalid because the work to be performed required State approval which was beyond
the control of the subdivider. The court found nothing in the Subdivision Control Law
which would authorize a Planning Board to require improvements to a State highway.
However, the court did find that requiring the easement for construction of an
additional lane of traffic was a proper condition as the additional lane would serve the
traffic entering and leaving the subdivision by providing a turning lane into the
subdivision.
Public Hearing Requirement
The Planning Board must hold a public hearing before adopting or amending
subdivision control rules and regulations. Notice of the public hearing must include the
date, time, place and subject matter of the public hearing. Notice of the public hearing
must also be published in a newspaper once in each of two successive weeks with the
first publication being not less that 14 days before the day of the hearing.
Filing Requirement
A copy of the Planning Board’s regulations and any amendments adopted after January
1, 1954, must be certified by the municipal clerk and transmitted by the Planning
Board to the Register of Deeds and Recorder of the Land Court. Any Planning Board
having subdivision control powers on January 1, 1954, should have transmitted a copy
of its rules and regulations, certified by the municipal clerk, to the Register of Deeds
and Recorder of the Land Court.
A true copy of the Board’s regulations must be kept on file in the office of the Planning
Board and the municipal clerk.
11
DEFINITION OF SUBDIVISION
As previously mentioned, the Legislature made a comprehensive revision to the
Subdivision Control Law in 1953. This legislation made two significant changes to the
statute. It clarified the definition of a subdivision and provided for the recording of
approval not required (ANR) plans. The procedures for the submission and
endorsement of an ANR plan are found in Section 81P.
Prior to the 1953 statute, a plan showing lots and ways could be recorded without the
approval of the Planning Board if such ways were existing ways and not proposed
ways. The purpose of providing for an approval not required process was to alleviate
the difficulty encountered by Registers of Deeds in deciding whether a plan showing
ways and lots could lawfully be recorded. As explained by Mr. Philip Nichols on
behalf of the sponsors of the 1953 legislation, “... it seems best to require the person
... who contends that (his plan) is not a subdivision within the meaning of the law,
because all of the ways shown on the plan are already existing ways, to submit it to the
planning board, and if the board agrees with his contention, it can endorse on the plan
a statement that approval is not required, and the plan can be recorded without more
ado.”
Section 81P requires that an approval not required endorsement cannot be withheld
unless a plan shows a subdivision. Therefore, whether a plan requires approval or not
rests with the definition of “subdivision” as defined in Section 81L.
Simply put, a subdivision is the division of a tract of land into two or more lots.
However, a division of a tract of land into two or more lots will not constitute a
subdivision if, at the time it is made, every lot has the necessary frontage on a certain
type of way.
MGL, Chapter 41, Section 81L defines a subdivision as follows:
“Subdivision” shall mean the division of a tract of land into two or more
lots and shall include resubdivision, and, when appropriate to the
context, shall relate to the process of subdivision or the land or territory
subdivided; provided, however, that the division of a tract of land into
two or more lots shall not be deemed to constitute a subdivision within
the meaning of the subdivision control law if, at the time when it is
made, every lot within the tract so divided has frontage on (a) a public
way or a way which the clerk of the city or town certifies is maintained
and used as a public way, or (b) a way shown on a plan theretofore
approved and endorsed in accordance with the subdivision control law,
or (c) a way in existence when the subdivision control law became
effective in the city or town in which the land lies, having, in the
opinion of the planning board, sufficient width, suitable grades, and
12
adequate construction to provide for the needs of vehicular traffic in
relation to the proposed use of the land abutting thereon or served
thereby, and for the installation of municipal services to serve such land
and the buildings erected or to be erected thereon. Such frontage shall be
of at least such distance as is then required by zoning or other ordinance
or by-law, if any, of said city or town for erection of a building on such
lot, and if no distance is so required, such frontage shall be of at least
twenty feet. Conveyances or other instruments adding to, taking away
from, or changing the size and shape of, lots in such a manner as not to
leave any lot so affected without the frontage above set forth, or the
division of a tract of land on which two or more buildings were standing
when the subdivision control law went into effect in the city or town in
which the land lies into separate lots on each of which one of such
buildings remains standing, shall not constitute a subdivision.
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APPROVAL NOT REQUIRED PLANS
Any person wishing to record a plan which he believes is not a subdivision plan may
submit an ANR plan to the Planning Board. The review of an ANR plan by the
Planning Board does not require a public hearing. If the Board finds that the plan does
not show a subdivision, as defined in Section 81L, it must immediately endorse the
plan “approval not required under the Subdivision Control Law” or words of similar
import.
Basically, the court has interpreted the Subdivision Control Law to impose three
standards that must be met in order for lots shown on a plan to be entitled to an
endorsement by the Planning Board that “approval under the Subdivision Control Law
is not required.” The Planning Board must determine whether: (1) all lots abut a
qualified way; (2) all lots have adequate frontage; and, (3) vital access exists to each
lot.
Qualified Ways
Lots shown on an ANR plan must front on one of the following types of ways:
1. A public way or a way which the municipal clerk certifies is
maintained and used as a public way.
As was discussed in Fenn v. Town of Middleborough, 7 Mass. App. Ct. 80 (1979), a
way becomes public in one of three ways: (1) a laying out by a public authority
pursuant to MGL, Chapter 82, Sections 1-32; (2) by prescription; and, (3) prior to
1846, by dedication by the owner to public use, permanent and unequivocal, coupled
with an express or implied acceptance by the public. Because the 1846 statute put an
end to the creation of public ways by dedication, it has only been possible since that
time to create a public way either by a layout in the statutory manner or by
prescription.
2. A way shown on a plan which has been previously approved in
accordance with the Subdivision Control Law.
3. A way in existence when the Subdivision Control Law took effect in
the municipality having, in the opinion of the Planning Board, sufficient
width, suitable grades, and adequate construction to provide for the
needs of vehicular traffic in relation to the proposed use of the lots.
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Adequate Frontage
The lots shown on an ANR plan must meet the minimum frontage requirements as
specified in the local zoning bylaw. If the local zoning ordinance or bylaw does not
specify any minimum frontage requirement, then the proposed lots must have a
minimum 20 feet of frontage in order to be entitled to ANR endorsement.
A plan showing a lot having less than the required frontage is not entitled to ANR
endorsement even if the Zoning Board of Appeals has granted a frontage variance for
the lot.
Absent a zoning provision authorizing a reduction in lot frontage by special permit, an
owner of land wishing to create two building lots where one lot will have less than the
required lot frontage needs to obtain approval from both the Zoning Board of Appeals
and the Planning Board. A zoning variance from the Zoning Board of Appeals varying
the lot frontage requirement is necessary in order that the lot may be built upon for
zoning purposes. It is also necessary that the lot owner obtain a frontage waiver from
the Planning Board for the purposes of the Subdivision Control Law.
The need to obtain approval from both the Planning Board and Zoning Board of
Appeals was noted in Arrigo v. Planning Board of Franklin, 12 Mass. App. Ct. 802
(1981), where landowners wished to create a building lot which would not meet the
minimum lot frontage requirement of the zoning bylaw. The minimum lot frontage
requirement was 200 feet. They petitioned the Zoning Board of Appeals for a variance
and presented the Board with a plan showing two lots, one with 200 feet of frontage,
and the other with 186.71 feet of frontage. The Board of Appeals granted a
dimensional variance for the lot which had the deficient frontage. Upon obtaining the
variance, the landowners submitted a subdivision plan to the Planning Board showing
the two lot subdivision.
After a public hearing, the Planning Board waived the 200 foot frontage requirement
for the substandard lot and approved the two lot subdivision. MGL, Chapter 41,
Section 81R, authorizes a Planning Board to waive the minimum frontage requirement
of the Subdivision Control Law. The court found that the Planning Board had to grant
the frontage waiver before the plan could be approved by the Board.
Later, in Seguin v. Planning Board of Upton, 33 Mass. App. Ct. 374 (1992), the court
defined the process that must be followed when a landowner seeks a frontage waiver
from the Planning Board. The Seguins wished to divide their property into two lots for
single family use. One lot had the required frontage on a paved public way. The other
lot had 98.44 feet of frontage on the same public way. They applied for and were
granted a variance from the 100 foot frontage requirement of the Upton Zoning Bylaw.
Upon obtaining the variance, the Sequins submitted a plan to the Planning Board
seeking the Board’s endorsement that approval under the Subdivision Control Law was
not required. The Planning Board denied endorsement on the ground that one of the
15
lots shown on the plan lacked the frontage required by the Upton Zoning Bylaw.
Rather than resubmitting the plan as a subdivision plan for approval by the Planning
Board, the Seguins appealed the Planning Board’s denial of the ANR endorsement. The
court held that the Seguin’s plan showed a subdivision and had to be submitted and
approved as a subdivision plan.
Vital Access
One of the more interesting aspects of the ANR process, if not the Subdivision Control
Law, is the vital access standard. The necessity that the Planning Board determine that
access exists to the lots before endorsing an ANR plan is not expressly stated in the
Subdivision Control Law. The vital access standard has evolved from court decisions.
The decisions have dealt with whether proposed building lots have actual access and
have focused on the adequacy of the way on which the proposed lot fronts and the
adequacy of the access from the way to the buildable portion of the lot.
Adequacy of a Public Way
In Perry v. Planning Board of Nantucket, 15 Mass. App. Ct. 144 (1983), the court
looked at the adequacy of access of an existing public way. Perry submitted a two lot
ANR plan to the Planning Board. Both lots had the required frontage on Oakland Street
which was a way that had appeared on town plans since 1927. The County
Commissioners of Nantucket, by an order of taking registered with the Land Court in
1962, took an easement for the purposes of a public highway. Oakland Street, a public
way, had never been constructed. The Planning Board decided that the plan constituted
a subdivision because the lots did not front on a public way as defined in the
Subdivision Control Law. Because no way existed on the ground to serve the proposed
lots, the court found that the Planning Board was right in denying ANR endorsement.
The court noted that a board can properly deny an ANR endorsement because of
inadequate access, despite technical compliance with frontage requirements, where
access is nonexistent for the purposes set out in Section 81M.
Relying on the Perry decision, among others, the Hingham Planning Board denied
endorsement of a plan where all the proposed lots abutted a public way. In Hutchinson
v. Planning Board of Hingham, 23 Mass. App. Ct. 416 (1987), the court found that the
public way provided adequate access and that the Planning Board had exceeded its
authority in refusing to endorse the plan.
Hutchinson proposed to divide a 17.74 acre parcel on Lazell Street in Hingham into
five lots. Lazell Street was a public way which was used and maintained by the Town
of Hingham. It was a paved way and, except for a portion which was one-way, was 20
to 22 feet wide which was about the same width as other streets in the area. Each lot
met the frontage requirement of the Hingham zoning bylaw.
16
The Planning Board denied ANR endorsement because they determined that Lazell
Street did not have sufficient width, suitable grades, and adequate construction to
provide for the needs of vehicular traffic in relation to the proposed use of land. The
court did not agree with the Planning Board. The court found that Lazell Street
provided adequate access that a public way normally provides in that it was of
sufficient width and suitable to provide access for fire-fighting equipment and other
emergency vehicles.
Since 1987, the Perry and Hutchinson decisions represented the parameters for
determining the adequacy of a public way for the purposes of an ANR endorsement. If
proposed lots abutted an unconstructed public way (paper street), the plan was not
entitled to an ANR endorsement. However, if the proposed lot abutted an existing
public way which was (1) paved, (2) comparable to other ways in the area, and (3)
provided adequate access, the plan was entitled to ANR endorsement.
What remained unclear was whether a plan showing lots which abutted an existing
substandard or unpaved public way was entitled to an ANR endorsement. In previous
decisions, the court had stated that Planning Boards were authorized to withhold ANR
endorsement in those unusual situations where the “access implied by the frontage is
illusory.” The court, however, had not had the opportunity to consider the “illusory”
standard in relation to a public way which was either unpaved or not properly
maintained until Sturdy v. Planning Board of Hingham, 32 Mass. App. Ct. 72 (1992).
In Sturdy, the court had to determine whether a public way having certain deficiencies
provided suitable access within the meaning of the Subdivision Control Law. Sturdy
presented a plan to the Planning Board requesting an ANR endorsement. The Planning
Board denied the endorsement and Sturdy appealed. The proposed lots shown on the
plan abutted Side Hill Road which was a public way. Side Hill Road was a passable
woods road of a dirt substance with some packed gravel. It was approximately eleven
to twelve feet wide, muddy in spots and close to impassable during very wet portions
of the year. The road was wide enough for one car and it would be very difficult for
large emergency vehicles to turn onto Side Hill Road at either end.
The court determined that the Sturdy plan was entitled to ANR endorsement. The court
found that deficiencies in a public way are insufficient grounds for denying an ANR
endorsement. The rationale behind the Sturdy decision is since municipal authorities
have the obligation to maintain public ways there is already public control as to how
perceived deficiencies, if any, in such public ways are to be corrected.
A public way which is passable but temporarily unusable at certain times of the year
may also pass the vital access test. In Sturdy, the court noted that the way was close to
impassable during very wet portions of the year. We assume from the Sturdy decision,
that although more difficult, the public way was still passable during the wet season.
However, in Long Pond Estates Ltd. v. Planning Board of Sturbridge, 406 Mass. 253
(1989), the court decided that a public way providing principal access to a lot can be
17
temporarily unavailable provided that adequate access for emergency vehicles exists on
another way.
In Long Pond, the plaintiff had submitted a plan to the Planning Board for ANR
endorsement. The plan showed three lots, each of which had adequate frontage on
Champeaux Road, a public way. However, a portion of the way between the proposed
lots was within a flood easement held by the United States Corps of Engineers, and was
periodically closed due to flooding. Between 1980 and 1988, the Corps of Engineers
closed the affected portion of the public way on an average of 33 1/2 days a year.
In refusing to endorse the plan, the Planning Board stated that (1) the existence of the
flood easement meant that the public way did not provide adequate access for
emergency vehicles to the proposed lots and (2) alternative access to the proposed lots
through an abutting town would involve excessive response time. The court did not
agree and found that adequate access was available by ways in a neighboring town
during the time when a portion of Champeaux road was closed due to flooding and the
distance for emergency vehicles was no greater than the distance they must travel to
reach numerous other points within Sturbridge.
The Long Pond decision adds a variation to the vital access standard in that the
principal access to a lot can be temporarily unavailable from a public way provided that
adequate access for emergency vehicles exists on another way. To be eligible for this
variation, the landowner must show that the public way usually offers actual access and
that there is a second means of adequate access when the public way is unavailable.
If a public way exists in some form and is passable, according to Sturdy, a plan
showing lots abutting such a public way is entitled to ANR endorsement. If a public
way has never been constructed (i.e. paper street) or access is in fact illusory (i.e. the
way is not passable even when using a tank), a plan showing lots abutting such a public
way would not be entitled to ANR endorsement.
Adequacy of a Private Way
The Subdivision Control Law specifically gives the Planning Board more discretion in
determining the adequacy of a private way. As was noted in the Hutchinson decision, a
Planning Board has broader powers in determining the adequacy of a way which is not
a public way but was a way in existence when the Subdivision Control Law took effect
in the community. A Planning Board has the authority to deny an ANR endorsement if
the private way, in the opinion of the Planning Board does not have a sufficient width,
suitable grades and adequate construction to provide for the needs of vehicular traffic
in relation to the proposed use of the land.
18
Adequacy of a Previously Approved Subdivision Way
A Planning Board can deny an ANR endorsement unless the previously approved
subdivision way shown on the ANR plan has been built or there is a performance
guarantee assuring that the way will be built. In Richard v. Planning Board of
Acushnet, 10 Mass. App. Ct. 216 (1980), the Board of Selectmen, acting as an interim
Planning Board, approved a 26 lot subdivision plan. The Selectmen did not specify any
construction standards for the proposed way, nor did they specify the municipal
services to be furnished by the applicant. The Selectmen also failed to obtain the
necessary performance guarantee. Eighteen years after the approval of the subdivision
plan by the Board of Selectmen, Richard submitted an ANR plan to the Planning
Board. The court found that to be entitled to the ANR endorsement, when a plan shows
proposed building lots abutting a previously approved way, such way must be built or
the assurance exists that the way will be constructed in accordance with specific
municipal standards. Since there was no performance guarantee, Richard’s plan was
not entitled to ANR endorsement.
Adequacy of the Access
Not only must a Planning Board consider the adequacy of the existing way, the vital
access standard also requires a determination as to the adequacy of the access from the
way to the buildable portion of the lot.
In 1978 the court had its first opportunity to consider the adequacy of access to the
buildable portion of a lot. Gifford v. Planning Board of Nantucket, 376 Mass. 801
(1978), dealt with a most unusual plan which technically complied with the
requirements of the Subdivision Control Law so as to be entitled to an ANR
endorsement. The Nantucket zoning bylaw required a minimum lot frontage of 75 feet.
An owner of a 49 acre parcel of land submitted a plan to the Planning Board showing
46 lots and requested an ANR endorsement. Each of the 46 lots abutted a public way
for not less than the required 75 feet of frontage. However, the connection of a number
of the lots to the public way was by a long narrow neck turning at acute angles in order
to comply with the 75 foot frontage requirement. For example, one lot had a neck
which was 1,185 feet long having seven changes in direction before it reached Madaket
Road which was a paved road in good condition. The neck narrowed at one stage to
seven feet.
The Planning Board endorsed the plan ANR and 15 residents commenced an action in
Superior Court to annul the Board’s endorsement on the grounds that the plan
constituted a subdivision. A judgment was entered in favor of the residents and the
landowner appealed to the Appeals Court. The Massachusetts Supreme Judicial Court,
on its own initiative, ordered direct appellate review.
19
In deciding the case, the Massachusetts Supreme Judicial Court looked at the purposes
of the Subdivision Control Law as stated in Section 81M and noted that “a principal
objective of the law is to ensure efficient vehicular access to each lot in a subdivision,
for safety, convenience, and welfare depend critically on that factor.” In reviewing the
plan, it was found that it would be most difficult, if not impossible, to use a number of
the necks to provide practical vehicular access to the main or buildable portions of the
lots. The court concluded that the plan was an obvious attempt to circumvent the
purpose and intent of the Subdivision Control Law and that the lots shown on the plan
did not have sufficient frontage and therefore were not entitled to an ANR
endorsement.
The Gifford decision was a bellwether case as it established the requirement that a
proposed building lot have accessibility from the way to the buildable portion of the
lot. Hrenchuk v. Planning Board of Walpole, 8 Mass. App. Ct. 949 (1979), was the
first case decided after the Gifford decision which dealt with this requirement.
Hrenchuck submitted a plan to the Planning Board requesting an ANR endorsement.
All the lots shown on the plan had frontage on Interstate 95, a limited access highway.
There was no means of vehicular passage between the highway and any of the lots. The
lots could only be reached by use of a 30 foot wide private way which was not a
qualified way for the purposes of the Subdivision Control Law. The court determined
that Hrenchuck was not entitled to an ANR endorsement because there was no actual
access to Route 95, the public way on which Hrenchuk claimed his lots had frontage.
20
One of the more interesting cases which dealt with the question of whether proposed
building lots actually had access to a way was McCarthy v. Planning Board of
Edgartown, 381 Mass. 86 (1980). McCarthy submitted a plan to the Planning Board
for an ANR endorsement. The lots shown on the plan each had at least 100 feet of
frontage on a public way which was the minimum frontage requirement of the
Edgartown zoning bylaw. However, the Martha’s Vineyard Commission (MVC) had
previously adopted a regulation which imposed a requirement that “any additional
vehicular access to a public road must be at least 1,000 feet measured on the same side
of the road from any other vehicular access.” The Planning Board voted to deny the
requested endorsement because the vehicular access would not be 1000 feet apart, and
McCarthy appealed.
McCarthy claimed that the plan did not show a subdivision because every lot had 100
feet of frontage on a public way as required by the Edgartown zoning bylaw. The
Planning Board contended that the MVC requirement deprived McCarthy’s lots of
vehicular access to the public way so the lots did not have frontage for the purposes of
the Subdivision Control Law. Citing the Gifford and Hrenchuck decisions, the court
agreed with the Planning Board.
Shortly after the McCarthy decision, the Appeals Court had an opportunity to further
define the accessibility issue in Gallitano v. Board of Survey & Planning of Waltham,
10 Mass. App. Ct. 269 (1980). The Gallitanos submitted a plan to the Planning Board
requesting an ANR endorsement. The plan showed four lots, each meeting the
requirements of the Waltham zoning ordinance for a buildable lot. In the particular
district where the lots were located, the zoning ordinance did not specify any frontage
requirement. In such a case where a zoning ordinance or bylaw does not specify any
frontage requirement, Section 81L requires that proposed lots, to be entitled to an ANR
endorsement, must have a minimum of 20 feet of frontage. Each of the lots shown on
the plan had frontage on Beaver Street, an accepted public way, for a distance of not
less than 20 feet. The access to the buildable portion of one lot was 20 feet wide for a
distance of 76 feet where it widened to permit compliance with the width and yard
requirements for a buildable lot. This was the lot that raised the most concern with the
Planning Board. The Planning Board denied endorsement of the plan apparently
inspired by the analysis in the Gifford decision.
The Planning Board sought to establish that despite literal compliance with the lot area
and frontage requirements of the zoning ordinance, the lots would be left without
access (or without easy access) to municipal services. The Planning Board supported its
arguments with affidavits from city officials responsible for fire and police protection,
traffic control, and public works. The affidavits claimed that certain lots intersected the
public way at so acute an angle as to make entrance by vehicle difficult or impossible.
The access was said to be “blind to oncoming traffic” thus creating a traffic hazard.
The affidavits asserted that houses built on the lots would most likely be invisible from
the way and would jeopardize fire and police protection in cases of emergencies.
Although sympathetic with the Board’s position, the court decided against the Planning
21
Board and stated a general rule to guide Planning Boards in determining whether access
exists to the buildable portion of a lot.
As a rule of thumb, we would suggest that the Gifford case should not
be read as applying to a plan, such as the one before us, in which the
buildable portion of each lot is connected to the required frontage by a
strip of land not narrower than the required frontage at any point,
measured from that point to the nearest point of the opposite sideline.
Illusory Access
None of the previous cases dealt with a situation where the question of access centered
on a topographical situation which might prevent access from the building site to the
way. To what extent a Planning Board can consider topographical issues when
reviewing an ANR plan was first considered in Corcoran v. Planning Board of
Sudbury, 26 Mass. App. Ct. 1000 (1988). In that case, the Appeals Court ruled that a
Planning Board could consider the presence of wetlands, which are subject to the
Wetland Protection Act, when reviewing an ANR plan. The Massachusetts Supreme
Court granted further appellate review and in Corcoran v. Planning Board of Sudbury,
406 Mass. 248 (1989), reversed the decision of the Appeals Court.
Corcoran submitted a six lot ANR plan to the Planning Board. Each lot had the
required frontage on a public way. However, the plan showed wetland areas between
the buildable portions of some of the lots and the public way. The Planning Board
claimed that Corcoran was not entitled to an endorsement because the presence of
wetlands on the lots prevented access to buildable sites in the rear of several of the lots.
22
The Planning Board believed that not all of the lots could accommodate both a house
and its accompanying septic system on dry areas between the road and the wetlands.
The Planning Board maintained that this case was governed by Gifford and other cases
which held that technical compliance with the frontage requirement of the Subdivision
Control Law does not in itself entitle a plan to ANR endorsement. The SJC disagreed
that the rationale in Gifford and subsequent cases was applicable to Corcoran’s plan.
The court decided that a Planning Board cannot deny an ANR endorsement simply
because other permitting approvals are necessary before practical access exits from the
way to the building site. In the court’s view, the existence of wetlands that do not
render access illusory is a different situation from where there exists a distinct physical
impediment or unusual lot configuration which would bar practical access.
After Corcoran, it was unclear what would constitute a distinct physical impediment
that would prohibit practical access. Would a plan be entitled to ANR endorsement if a
distinct physical impediment existed that prevented practical access but could be
removed at a later date so that each lot would then have practical access onto a way?
The court, in Poulos v. Planning Board of Braintree, 413 Mass. 359 (1992), shed some
light on this question.
Poulos owned a parcel of land which abutted a paved public way in the town of
Braintree. He submitted a plan to the Planning Board requesting an ANR endorsement
from the Planning Board. The plan showed 12 lots, each lot having the minimum 50
feet of frontage on a public way as required by the Braintree zoning bylaw. However,
there was a guardrail along the street extending for about 659 feet between the paved
way and the frontage of eight lots shown on the plan. The State Department of Public
Works had installed the guardrail due to the existence of a steep downward slope
between the public way and portions of the property owned by Poulos. The Board
denied ANR endorsement because the lots had no practical access to the street, and
Poulos appealed to the Land Court.
The Land Court judge found that the policy of the State Department of Public Works is
to remove guardrails when the reason for their installation no longer exists. Neither
State nor local approval would be required for Poulos to regrade and fill his property
so as to eliminate the slope. An order of conditions authorizing such filling had been
issued to Poulos by the Braintree Conservation Commission. The judge concluded that
neither the slope nor the guardrail constituted an insurmountable impediment and found
that adequate access existed from the public way to the lots. He based his decision on
the fact that there was nothing to prevent Poulos from filling and regrading his
property which would result in the removal of the slope and therefore eliminate the
need for the guardrail. The Planning Board appealed and the Massachusetts Appeals
Court reversed the decision of the Land Court judge. The Massachusetts Supreme
Judicial Court allowed further appellate review and agreed with the Appeals Court.
23
The court found that Planning Boards may properly withhold ANR endorsement where
the “access implied by the frontage is ... illusory in fact.” It was not enough that
Poulos proposed to regrade his land in a manner satisfactory to the State DPW and that
the State DPW would then respond by removing the guardrail. In citing the Perry case,
the court noted that there should be no endorsement of the plan in the absence of
existing adequate access to the public way.
In order for a plan to be entitled to an ANR endorsement, each lot shown on the plan
must have practical access to the public way. The Planning Board should consider the
conditions which exist at the time a plan is presented, not the conditions which might
exist in the future. The Poulos decision indicates that severe topographical conditions
which would prevent practical access from the lots to the way is sufficient basis to deny
ANR endorsement.
81L Exemption
As previously mentioned, whether a plan is entitled to an ANR endorsement is
determined by the definition of “subdivision” in Section 81L. Included in this
definition is the following exemption:
... the division of a tract of land on which two or more buildings were
standing when the subdivision control law went into effect in the city or
town in which the land lies into separate lots on each of which one of
such buildings remains standing, shall not constitute a subdivision.
The 1953 comprehensive revision to the Subdivision Control Law inserted this
exemption into the statute. The purpose of this exemption is not clear but the 1953
Report of the Special Commission on Planning and Zoning shows that the drafters were
aware of what they were doing, although it does not explain their reasons.
The central issue dealing with the 81L exemption has been the interpretation of the
term “buildings.” The legislation does not define what type of structure had to be in
existence prior to the Subdivision Control Law taking effect in a community in order to
qualify for the exemption. There were no reported cases dealing with this exemption
until Citgo Petroleum Corporation v. Planning Board of Braintree, 24 Mass. App. Ct.
425 (1987).
Citgo owned a parcel of some 68 acres of land which contained a number of buildings.
Clean Harbors leased eleven acres of the parcel for a hazardous waste terminal and
reached an agreement with Citgo to buy the eleven acres. Citgo prepared a plan
dividing the parcel into two lots each containing several buildings. Citgo’s contention
was that the buildings existed before the Subdivision Control Law went into effect in
Braintree and thus the plan was not a subdivision because of the 81L exemption. The
Planning Board denied ANR endorsement because the lot to be conveyed to Clean
24
Harbors lacked the necessary frontage. The Board took the position that a literal
reading of the term “building” would undercut the purposes the Subdivision Control
Law by allowing a landowner to use any detached garage, shed or other outbuilding as
a basis for unrestricted backland development.
The court disagreed with the Planning Board and found that a main office building,
underwriter’s pump house/machine shop, wax plant building, earth burner building,
and a yard office were “substantial” and qualified as buildings under the statute. The
court did state, however, that a claim that a detached garage, chicken house or
woodshed qualifies for the 81L exemption might present a different case. The court
also noted that just because a lot can be divided under this exception does not mean the
resulting lots will be buildable under the zoning ordinance.
The most significant aspect of the Citgo case is the notation by the court that the 81L
exemption does not relieve a property owner from complying with local zoning
requirements. Because the 81L exemption only relieves a landowner from complying
with the frontage requirement of the Subdivision Control Law, a variance or variances
from the Zoning Board of Appeals may be necessary.
Since the Citgo decision, there has been one Land Court case involving what
constitutes a building within the meaning of the statute. In Taylor v. Pembroke
Planning Board, (Plymouth) Misc. Case No. 126703, 1990 (Fenton J.), the court
determined that in order to qualify for the 81L exemption, the use of the building is no
way controlling on the issue. A 88.6 foot by 30.8 foot cement block building with its
own cesspool and electricity which had been used to store automobiles and as a turkey
farm was found to be a substantial building.
Perimeter Plans
A perimeter plan is a plan of land showing existing property lines, with no new lines
drawn. Such plans are usually filed so that property owners can obtain a three year
ANR zoning protection for the land shown on the plan.
Section 81L defines “subdivision” in terms of “the division of a tract of land into two
or more lots.” Thus, where a plan shows no division of land, an argument can be made
that the plan needs no Planning Board action and can be recorded pursuant to Section
81X. The fourth paragraph of Section 81X states in part that:
... the register of deeds shall accept for recording and the land court
shall accept with a petition for registration or confirmation of title any
plan bearing a certificate by a registered land surveyor that the property
lines shown are the lines dividing existing ownership, and the lines of
streets and ways shown are those of public and private streets or ways
25
already established, and that no new lines for division of existing
ownerships or for new ways are shown.
In Horne v. Board of Appeals, Town of Chatham, Barnstable Superior Court C.A. No.
4635, November 3, 1986 (Dolan, J.), the Planning Board had endorsed a perimeter
plan showing a lot with the exact dimensions and bounds shown on an earlier plan
registered with the Land Court. In finding that the Planning Board had mistakenly
endorsed the plan, the court noted that as a matter of law the Planning Board should
not have endorsed the perimeter plan. In Horne, the landowner succeeded in protecting
his property from the zoning change because the court could not revoke the Planning
Board’s endorsement since the issue was not properly before the court.
In Malden Trust Company v. Twomey, Middlesex Superior Court C.A. No. 6574,
September 28, 1989 (McDaniel, J.) the Planning Commission declined to endorse a
plan “ANR” which showed no new property lines. In upholding the Commission’s
decision not to endorse the plan, the court noted that the plan showed no division of
land and therefore no need for the verification process of Section 81P. The court
further stated that a perimeter plan is properly filed under Section 81X and not under
the ANR process found in Section 81P.
However, in Costello v. Planning Board of Westport, (Bristol) Misc. Case No.
152765, 1991 (Sullivan, J.), a Land Court judge concluded that perimeter plans are
entitled to an ANR endorsement. In her decision the judge summarized that nothing in
the statute requires the conclusion that only divisions of land which do not constitute a
subdivision are entitled to ANR endorsement and that perimeter plans are entitled to an
ANR endorsement.
It should be noted that the Costello, Twomey and Horne cases were not appealed and
hence the views of the Appeals Court and the Supreme Judicial Court are not known.
The perimeter plan issue remains unsolved. A Planning Board should adopt a consistent
approach to the review of perimeter plans.
One Lot Plans
In Bloom v. Planning Board of Brookline, 346 Mass. 278 (1963), the court reached the
conclusion that a plan showing the division of a tract of land into two parcels where
one parcel was clearly not available for building was not a division of land into two lots
which would require Planning Board approval under the Subdivision Control Law.
In Bloom, owners of a parcel of land were refused a variance to allow them to build an
apartment complex. Their parcel extended more that 25 feet into a single-family zoning
district. The zoning bylaw of the town of Brookline contained the following
requirement:
26
When a boundary line between districts divides a lot in single
ownership, the regulations controlling the less restricted portion of such
lot shall be applicable to the entire lot, provided such lot does not extend
more that 25 feet within the more restricted district.
A plan was submitted to the Planning Board showing two lots. Lot A was a large
parcel which only extended 24 feet into the single-family zone. The second lot, which
was entirely in the single-family zone did not meet the frontage requirements of the
zoning bylaw. A statement was placed on lot B that it did not conform to the Zoning
Bylaw. The reason the plan was submitted to the Planning Board was to create a lot
which would not be subject to the above noted zoning requirement making the lot
available for apartment construction.
Section 81P provides that an ANR endorsement “shall not be withheld unless such plan
shows a subdivision.” For purposes of the Subdivision Control Law, a “subdivision” is
a “division of a tract of land into two or more lots.” A “lot” is defined in Section 81L
as “an area of land in one ownership, with definite boundaries, used, or available for
use, as the site of one or more buildings.” The court determined that the plan was
entitled to ANR endorsement since a statement had been placed on the plan making it
clear that lot B was not available for the site of building.
27
Section 81P states that the “endorsement under this section may include a statement of
the reason approval is not required.” Court cases have supported the concept that,
where a Planning Board knows its endorsement may tend to mislead buyers of lots
shown on a plan, the Planning Board may exercise its powers in a way that protects
persons who will rely on the ANR endorsement. For example, in Bloom, the court
noted that the Planning Board could have placed thereon or have caused the applicant
to place thereon a statement that the lot was not a lot which could be used for a
building. Since the Planning Board has no jurisdiction to pass on zoning matters, we
would suggest that Planning Boards consider the following type of statement for one lot
plans where one or more of the parcels shown on the plan do not meet the frontage
requirement of the Subdivision Control Law.
For the purposes of the Subdivision Control Law, parcel ___ cannot be
used as the site for a building.
If a landowner wishes to divide his land in order to convey a portion of his property to
another landowner, the following statement might be used.
Parcel ___ to be conveyed to abutting property owner and is not
available as a site for a building.
In Cricones v. Planning Board of Dracut, 39 Mass. App. Ct. 264 (1995), a land
owner submitted a plan showing a division of land into three parcels. Two parcels
shown on the plan contained a statement that the parcel was not a building lot. The
third parcel contained no such statement and also did not meet the frontage requirement
as specified in the zoning bylaw. The court found that, in effect, the landowner
submitted a single lot plan which did not constitute a subdivision under the Subdivision
Control Law and concluded that the plan was entitled to an ANR endorsement because
it did not show a division of land into two or more lots. In reaching this conclusion, the
court made the following observations:
1. In determining whether to endorse a plan “approval not required,” a
Planning Board’s judgment is confined to determining whether a plan
shows a subdivision.
2. If a plan does not show a subdivision, a Planning Board must endorse
the plan as not requiring subdivision approval.
3. If the Planning Board is presented with a plan showing a division of
land into two or more “lots,” each of which has sufficient frontage on a
way, the Planning Board can properly concern itself with whether the
frontage depicted is actual or illusory.
28
4. If a plan shows a subdivision rather than a single lot under the
Subdivision Control Law, the Planning Board can consider the adequacy
of the frontage of any lot shown on the plan independent of any variance
which may have been granted by the Zoning Board of Appeals.
29
Plans Showing Zoning Violations
Frequently, Planning Boards are presented with a plan for ANR endorsement where the
plan shows a division of land into proposed lots which:
a. all the proposed lots have the required frontage on a qualified way,
but
b. one or more of the proposed lots lack the required minimum lot area
or the plan indicates some other zoning deficiency.
Since the plan shows a zoning violation, can the Planning Board refuse to endorse the
Plan?
The only pertinent zoning dimension for determining whether a plan depicts a
subdivision is frontage. In Smalley v. Planning Board of Harwich, 10 Mass. App. Ct.
599 (1980), the Harwich Planning Board was presented a plan showing a division of a
tract of land into two lots, both of which had frontage on a public way greater than the
minimum frontage required by the zoning bylaw. The Planning Board refused
endorsement because the plan indicated violations to the minimum lot area and sideline
requirements of the zoning bylaw. However, the Court decided that a plan showing
proposed lots with sufficient frontage and access, but indicating some other zoning
violation is entitled to ANR endorsement.
If the necessary variances have not been granted by the Board of Appeals, what can a
Planning Board do to make it clear that a proposed lot may not be a building lot? A
prospective purchaser of a lot may assume that the Planning Board’s endorsement is an
approval of zoning matters even though such endorsement gives the lots shown on the
plan no standing under the applicable zoning bylaw. If an applicant is unwilling to note
on the plan those lots which are in noncompliance with the zoning bylaw, we would
suggest that the Planning Board place the following type of statement on the plan:
1. The above endorsement is not a determination of conformance with
zoning regulations.
2 No determination of compliance with zoning requirements has been
made or intended by this endorsement.
3. Planning Board endorsement under the Subdivision Control Law
should not be construed as either an endorsement or approval of zoning
lot area requirements.
Hopefully, one of the above statements would have the affect of leading a prospective
purchaser to seek further advice.
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SUBDIVISION ADMINISTRATION
The Subdivision Control Law sets out a detailed procedure for the review, approval or
disapproval of plans by a Planning Board. The following discussion attempts to
highlight some of the key procedural requirements that Planning Boards should be
aware of when reviewing plans under the Subdivision Control Law. However, it should
not be used as a substitute for your reading of the Law.
Once the Subdivision Control Law is in effect, all subdivisions of land must be
approved by the Planning Board. Section 81O provides in part that:
No person shall make a division of any land in any city or town in which
the subdivision control law is in effect unless he has first submitted to
the planning board of such city or town for its approval ... a plan ... and
the planning board has approved such plan in the manner hereinafter
provided.
The Subdivision Control Law also contains a variety of measures for the enforcement
of the requirements of the Act. For example, Section 81X provides in part that:
No register of deeds shall record any plan showing a division of a tract
of land into two or more lots, ... in a city or town in which the
subdivision control law is in force unless (1) such plan bears an
endorsement of the planning board ... that such plan has been approved
..., or (2) such plan bears an endorsement ... that approval of such plan
is not required ... , or (3) the plan is accompanied by a certificate of the
clerk of such city or town that it is a plan which has been approved by
reason of the failure of the planning board to act thereon within the time
prescribed ... .
The local building official plays an important role in the enforcement of the
Subdivision Control Law. Specifically, Section 81Y provides in part that the building
official:
shall not issue any permit for the erection of a building until first
satisfied that the lot on which the building is to be erected is not within a
subdivision, or that a way furnishing the access to such lot as required
by the subdivision control law is shown on a plan recorded or entitled to
be recorded under section 81X, and that any condition endorsed thereon
limiting the right to erect or maintain buildings on such lot have been
satisfied, or waived by the planning board ... .
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In Hamilton v. Planning Board of Beverly, 35 Mass. App. Ct. 386 (1993), the
Planning Board approved a five lot definitive plan on the condition that the
“subdivision is limited to five (5) lots unless a new plan is submitted to the Beverly
Planning Board which meets their full standards and approval”. Seven years later,
Hamilton, an owner of one of the lots shown on the definitive plan, submitted an ANR
plan to the Planning Board. He wished to divide his lot into two lots which would meet
the current lot area and frontage requirements of the Beverly zoning ordinance. The
Planning Board endorsed the plan. Hamilton applied for a building permit to erect a
single-family structure on one of the newly created lots. The Building Inspector was
made aware of the condition noted on the previously approved definitive plan that had
limited that subdivision to five lots. On the strength of that limitation, the Building
Inspector declined to issue the permit. On appeal, Hamilton argued that the ANR
endorsement superseded the limiting condition imposed on the definitive plan. The
court did not agree with Hamilton and found that the restrictions in an approved
subdivision plan are binding on a building inspector and that the Planning Board would
have to hold a public hearing and modify its previous approval of the definitive plan
pursuant to Section 81W before a building permit could be issued.
Voting Requirements
Section 81L contains a requirement that “a majority of the members” of a Planning
Board must provide signatures in order for there to be a proper certification or
endorsement of a plan. Section 81L defines “Certified” as follows:
“Certified by (or endorsed by) a planning board”, as applied to a plan or
other instrument required or authorized by the subdivision control law to
be recorded, shall mean bearing a certification or endorsement signed by
a majority of the members of a planning board, or by its chairman or
clerk or any other person authorized by it to certify or endorse its
approval or other action and named in a written statement to the register
of deeds and recorder of the land court, signed by a majority of the
board.
The general rule as to existence of a quorum is that, in the absence of a statutory
restriction, a majority of a board is a quorum and a majority of the quorum can act.
However, where a statute requires a majority of the board to perform a certain function
then the quorum requirement is a majority of the members of the entire board and not a
majority of those present and voting on the particular matter.
In Queen v. Brock, Barnstable Superior Court No. 93-999 (August 16, 1994), a
Superior Court judge reviewed the above definition of “Certified by (or endorsed by) a
planning board” and concluded that in order for a plan to be approved, a majority of
32
an entire seven member Planning Board, or four members, must vote in favor of a
proposed subdivision plan.
Although the statute authorizes the Planning Board to designate an individual to certify
and endorse on behalf of the Board, this provision does not eliminate the need of a
Planning Board to meet and vote on an ANR plan. In Bloom v. Planning Board of
Brookline, 346 Mass. 278 (1963), the chairman of the Planning Board endorsed an
ANR plan without submitting it to entire Board. The court noted that the chairman
should have submitted the plan to the Planning Board.
Approval Not Required Plans
If you have a question concerning the process for reviewing ANR plans, your answer
will most likely be found in either Sections 81L, 81P, 81T or 81BB.
Section 81T provides that every person submitting an ANR plan to the Planning Board
must give written notice to the municipal clerk by delivery or by registered mail that he
has submitted the plan. This is an important requirement if the Planning Board fails to
act in timely manner. In Korkuch v. Planning Board of Eastham, 26 Mass. App. Ct.
307, (1988), the court determined that a developer who submitted an ANR plan but did
not give immediate or very prompt written notice of the submission of the plan to the
municipal clerk was not entitled to a certificate from the municipal clerk certifying
constructive approval of the plan when the Board failed to act on the plan in a timely
manner.
If the Planning Board determines that a plan does not require approval under the
Subdivision Control Law, it should “forthwith,” without a public hearing, endorse the
plan “approval under the Subdivision Control Law not required” or words of similar
import. As noted by the court in Bisson v. Planning Board of Dover, 43 Mass. App.
Ct. 504 (1997), the term “forthwith” compels immediate action by a Planning Board
after the Board determines that the plan does not show a subdivision. Once the
Planning Board has endorsed a plan, it cannot change its mind and rescind the ANR
endorsement. In Cassani v. Planning Board of Hull, 1 Mass. App. Ct. 451 (1973), the
court found that the authority to modify, amend or rescind plans under Section 81W is
not applicable to ANR plans.
If the Planning Board determines that the plan requires approval under the Subdivision
Control Law, the Board must give written notice of its determination to the municipal
clerk and the person submitting the plan within 21 days after the plan has been
submitted to the Board.
If the Planning Board determines that approval under the Subdivision Control Law is
required, the person submitting the ANR plan may appeal the Planning Board’s
determination pursuant to Section 81BB. If the Planning Board endorses the plan
“approval not required”, judicial review of the endorsement can be claimed pursuant to
33
MGL, Chapter 249, Section 4 and the time period for claiming review is 60 days. See
Stefanick v. Planning Board of Uxbridge, 39 Mass. App. Ct. 418 (1995).
Constructive Approval of ANR Plans
Automatic approval of a properly submitted plan will occur if the Planning Board fails
to act on the plan or fails to notify the municipal clerk or the person submitting the
plan of its determination within 21 days after the plan has been submitted to the Board.
If the plan becomes approved for failure to take timely action, the Planning Board must
immediately endorse the plan.
If the Planning Board fails to make such endorsement, the municipal clerk shall issue a
certificate of approval to the person who submitted the plan. The certificate should
indicate that the approval of the plan under the Subdivision Control Law is not required
since no notice of action was received from the Planning Board within the required
time period.
Preliminary Plans
The provisions for allowing the submission of preliminary plans first appeared in the
statute in 1947. At that time, the Planning Board was allowed to give tentative
approval, with or without suggested modifications. Action by the Planning Board was
not binding as the preliminary plan process was merely a step toward a final decision
which would later be made on a complete and detailed definitive plan. In 1958, a
detailed definition of a preliminary plan was added to the statute. The statute was also
amended allowing the Planning Board to disapprove a preliminary plan. The purpose of
this power is not clear. As the court noted in Livolvi, Inc. v. Planning Board of
Marlborough, 347 Mass. 330 (1964), it may well have been added to relieve a
Planning Board from the burden of making extensive recommendations with respect to
a plan which was obviously defective.
Up until 1986, the submission of a preliminary plan was voluntary and primarily
designed to commence discussion between the applicant and the Planning Board over
the proposed development. The statute made no distinction between residential and
nonresidential plans. The 1986 amendment to the statute required the mandatory
submission of preliminary plans for all nonresidential subdivisions.
Section 81L contains a detailed definition of a preliminary plan. A preliminary plan
which complies substantially with the definition in Section 81L will have the benefit of
the shorter definitive plan review period and any zoning protections afforded to a
preliminary plan under the State Zoning Act. Livolvi, Inc. v. Planning Board of
Marlborough, 347 Mass. 330 (1964).
Section 81S establishes the procedure for the submission of preliminary plans.
Preliminary plans are submitted to the Planning Board and the Board of Health and
34
written notice that the plan has been submitted goes to the municipal clerk. Within 45
days after submission of a preliminary plan each board must notify the applicant and
municipal clerk by certified mail either that the plan has been approved, or that the
plan has been approved with modifications suggested by the board or agreed to by the
person submitting the plan, or that the plan has been disapproved. In the case of
disapproval, the board must state in detail its reasons for disapproving the preliminary
plan. There is no specific penalty provided for the Board failing to take timely action.
Generally, the provisions of the Subdivision Control Law relating to a plan are not
applicable to a preliminary plan. The Register of Deeds may not record a preliminary
plan. A developer has no right to appeal the action taken by the Planning Board on a
preliminary plan, Mac-Rich Realty Construction, Inc. v. Planning Board of
Southborough, 4 Mass. App. Ct. 79 (1976). The Planning Board has no right to refuse
to receive a definitive plan merely because the Board has disapproved a preliminary
plan, Livolvi v. Planning Board of Marlborough, 347 Mass. 330 (1964).
Definitive Plans
The Subdivision Control Law explicitly defines the manner in which a Planning Board
must treat an application to subdivide a parcel of land and the procedure that must be
adhered to by the developer. Sections 81O, 81T and 81U establish the procedures for
filing, notice, public hearing and Planning Board action on definitive plans.
The initial step requires an applicant to submit a plan showing the lots into which such
land is to be divided. Section 81O provides that a definitive plan is submitted when
“delivered at a meeting of the board or when sent by registered mail to the planning
board.” If the plan is mailed to the Planning Board then the date of receipt by the
Planning Board is considered the date of submission of the plan. Section 81U requires
that the applicant also file a copy of the definitive plan with the Board of Health. The
applicant must also give written notice to the municipal clerk by delivery or registered
mail that he has submitted the plan.
Upon receipt of the plan, the Planning Board is required to hold a public hearing.
Notice of the public hearing must be given by the Planning Board at the expense of the
applicant. Section 81T prescribes the requirements for a properly advertised public
hearing.
Board of Health Action
The first three paragraphs of Section 81U deal with the administrative procedures
relative to the approval or disapproval of a definitive plan. The Board of Health has 45
days after the definitive plan is filed to report in writing to the Planning Board either
its approval or disapproval of the plan. In the event of disapproval, the Board of Health
35
is required to include in its report specific findings as to what areas, if any, shown on
the plan cannot be used for building sites without injury to the public health. The report
should also include the reasons for the Board’s decision and, where possible,
recommendations for adjustments. A copy of the Board’s report must be sent by the
Board to the applicant. Failure of the Board of Health to report is considered an
approval of the Plan by the Board of Health. Where a definitive plan shows that no
public or community sewer is to be installed, approval of the plan by the Board of
Health does not mean that the Board has approved a permit for the construction and use
of any individual sewage system nor is such approval treated as an application for a
permit to construct or use an individual sewage system.
A Planning Board cannot approve a plan which does not conform with the
recommendations of the Board of Health. If the plan does not conform with the
recommendations of the Board of Health, the Planning Board must modify and approve
or disapprove the plan. Loring Hills Developers Trust v. Planning Board of Salem, 374
Mass. 343 (1978).
A Board of Health is required to afford a developer a measure of procedural due
process prior to formulating an adverse recommendation to the Planning Board. A
developer who files a request with the Board of Health at the time of filing is entitled
to a hearing before the Board of Health. Fairbairn v. Planning Board of Barnstable, 5
Mass. App. Ct. 171 (1977).
Planning Board Waiver
Section 81R authorizes a Planning Board to waive any of their rules and regulations
adopted pursuant to the Subdivision Control Law. Before waiving any of their rules
and regulations, the Planning Board must find that granting the waiver is in the public
interest and not inconsistent with the purpose of the Subdivision Control Law. In
granting a waiver, the Board is not required to make written findings to support their
grant of the waiver. Windsor v. Planning Board of Wayland, 26 Mass. App. Ct. 650
(1988).
In Meyer v. Planning Board of Westport, 29 Mass. App. Ct. 167 (1990), the court
noted that a Planning Board is not required to specify and list in writing those rules and
regulations that the Board waived so long as the public record discloses evidence of a
conscious waiver. However, it is strongly recommended that any waiver granted by the
Board either be specified in the Board’s decision or noted on the definitive plan.
Section 81L defines an “applicant” as the owner of the land, his agent or
representative, or his assigns. In Batchelder v. Planning Board of Yarmouth, 31 Mass.
App. Ct. 104 (1991), the Planning Board waived this requirement that the applicant be
the owner of record. The court held that the Planning Board lacked the authority to
grant such a waiver of a statutory requirement. The court based its reasoning on the
36
fact that one of the objectives of the Subdivision Control Law is to ensure the provision
of adequate drainage, sewerage, and water facilities. One of the ways this objective is
achieved is to secure a covenant from the owner of record. If the owner of record is
not party to the proceedings there is no guarantee that the Planning Board would
receive a properly executed covenant.
The Planning Board may also waive the frontage requirement of the Subdivision
Control Law. The frontage requirement of the Subdivision Control Law is found in
Section 81L within the definition of “subdivision” and is the same frontage
requirement which is specified in the local zoning ordinance or bylaw.
The waiver of frontage requirements has been previously discussed in the Approval
Not Required Plans section of this publication. However, two issues concerning this
process is worth repeating:
1. A waiver of the frontage requirements of the Subdivision Control
Law by the Planning Board is not a variance. A landowner still needs to
obtain a zoning variance from the Board of Appeals and both processes
are independent of each other. Arrigo v. Planning Board of Franklin, 12
Mass. App. Ct. 802 (1981).
2. In order to obtain a frontage waiver from the Planning Board, an
applicant must submit a subdivision plan and request the waiver. Seguin
v. Planning Board of Upton, 33 Mass. App. Ct. 374 (1992).
Planning Board Action
After the public hearing, the Planning Board must either approve the plan, modify and
approve the plan or disapprove the plan.
The Planning Board must approve the plan if it complies with the Board’s rules and
regulations and the recommendations of the Board of Health. The Board of Health’s
report may require that the approval of the plan by the Planning Board be on the
condition that no building or structure can be built or placed upon any designated area
shown on the plan without the consent of the Board of Health. If the Board of Health
fails to make a report, the Planning Board must note on the plan that the Board of
Health approval is by failure of the Board to make a report.
If the Planning Board disapproves the plan, the Board must state in detail where the
plan does not comply with the rules and regulations of the Board or the
recommendations of the Board of Health. Disapproval of the plan is a final action from
which the developer has a right of appeal. However, any resubmission of a plan to
revoke a previous disapproval requires a new public hearing. Patelle v. Planning Board
of Woburn, 6 Mass. App. Ct. 951 (1978).
37
The Planning Board must revoke its disapproval and approve a definitive plan if the
plan, as amended, conforms with the Planning Board’s rules and regulations and the
recommendations of the Board of Health. Any such revised plan must be filed with the
Board of Health for review even though the Board of Health approved the original
plan. Doeblin v. Tinkham, 7 Mass. App. Ct. 720 (1979).
The Planning Board must file a certificate of its action with the municipal clerk and
send a notice of such action by registered mail to the applicant.
Constructive Approval of Definitive Plans
Automatic approval of a definitive plan will occur if the Planning Board fails to take
final action or file a certificate of final action with the municipal clerk.
In the case of a nonresidential subdivision plan, final action and filing of the certificate
must occur within 90 days after the submission of the plan.
In the case of a residential subdivision plan, where a preliminary plan was acted upon
or where 45 days have elapsed since the submission of the preliminary plan, final
action on the definitive plan and filing of the certificate with the municipal clerk must
occur within 90 days after the submission of the definitive plan.
In the case of a residential plan where no preliminary plan was either filed or acted
upon and 45 days had not elapsed since the filing of a preliminary plan and a definitive
plan was filed, final action and filing of the certificate with the municipal clerk must
occur within 135 days after the submission of the definitive plan.
At the written request of the applicant, the time period to take final action or file with
the municipal clerk a certificate of action may be extended. A notice of any agreed
upon extension must be filed with the municipal clerk.
If a definitive plan is constructively approved the municipal clerk must, after the
expiration of the 20 day appeal period without notice of an appeal or if an appeal was
taken after final court action leaving the approval intact, issue a certificate of approval
to the person submitting the plan. The certificate should state the date the plan was
submitted, the fact that the Planning Board failed to take final action and that the
approval of the definitive plan has become final for failure of the Planning Board to
take final action.
38
Performance Guarantee and Endorsement
An appeal of the Planning Board’s decision or inaction on a definitive plan may be
taken pursuant to Section 81BB of the Subdivision Control Law. Section 81X requires
that after the 20 day appeal period, the municipal clerk must certify that no notice of
appeal was received within the 20 day period. The clerk’s certification may be
endorsed on the plan or stated on a separate document which must be recorded and
referred to on the plan. If an appeal was taken and plan approval is upheld by the
court, the municipal clerk must certify that a final decree by the court has sustained the
approval of the plan. Again, the certification by the clerk may either be endorsed on
the plan or stated on a separate document which must be recorded and referred to on
the plan.
After the expiration of the 20 day appeal period and before endorsing its approval on
the definitive plan, the Planning Board must obtain a performance guarantee to ensure
the construction of ways and the installation of municipal services. The purpose of a
performance guarantee is to protect the public interest. See Marlborough Savings Bank
v. City of Marlborough, 45 Mass. App. Ct. 250 (1998). Section 81U provides that the
method for securing performance may be one of the following:
1. a proper bond,
2. a deposit of money or negotiable securities,
3. a covenant,
4. a lenders agreement, or
5. a combination of the above.
The applicant selects the method for securing performance and may vary the method
from time to time. The Planning Board determines whether the performance guarantee
is sufficient to secure performance. In determining the monetary amount, the Planning
Board should include a sufficient sum to cover inflationary costs.
In all cases, the Planning Board should specify or require the applicant to specify the
time period within which the construction of the ways and the installation of municipal
services will be completed.
A Planning Board, when approving a subdivision plan, has the authority to impose
reasonable conditions. The court has held that a Planning Board may impose a
condition, when a subdivision plan is secured by a covenant, which will result in the
automatic rescission of the plan. The issue of automatic rescission of a previously
39
approved subdivision plan was discussed in Costanza & Bertolino, Inc. v. Planning
Board of North Reading, 360 Mass. 677 (1971).
In Costanza, the Planning Board had approved a subdivision plan on the condition that
the developer complete all roads and municipal services within a two year period or
else the Planning Board’s approval would automatically be rescinded. The Board voted
its approval and endorsed the plan with the words “Conditionally approved in
accordance with MGL Chap. 41, Sec. 81U, as shown in agreement recorded
herewith.” The agreement referred to was a covenant which contained the following
language:
The construction of all ways and installation of municipal services shall
be completed in accordance with the applicable rules and regulations of
the Board within a period of two years from date. Failure to so complete
shall automatically rescind approval of the plan.
After the expiration of the two year period the roads and services were not complete,
but the landowner submitted a plan to the Planning Board requesting an ANR
endorsement. The plan showed lots with frontage on a way shown on the earlier
subdivision plan. The landowner’s position was that he was entitled to an ANR
endorsement since the lots shown on his plan abutted a way that had been previously
approved by the Planning Board pursuant to the Subdivision Control Law. The
Planning Board denied endorsement. The court found that the automatic rescission
condition was consistent with the Subdivision Control Law and that the Planning Board
could consider that condition when determining whether to endorse a plan “approval
not required.” Since the ways and installation of municipal services had not been
completed in accordance with the terms of the conditional approval, the court held that
the road did not qualify as a way previously approved under the Subdivision Control
Law and therefore the plan before the Board was a “subdivision” and not entitled to an
ANR endorsement. A similar result was also reached in Campanelli, inc. v. Planning
Board of Ipswich, 358 Mass. 798 (1970).
Under the Costanza decision, an approval of a subdivision plan automatically ceases to
exist if the work is not completed within the specified time period set out in the
conditional approval. Since a Planning Board approval is conditional, the automatic
rescission is not subject to the procedural requirement of Section 81W. Therefore, the
consent of the mortgagee is not required. See Bigham v. Planning Board of North
Reading, 363 Mass. 860 (1972).
Recording Definitive Plan
Section 81X requires that a definitive plan must be recorded within six months after the
date of the Planning Board endorsement. If the plan has not been recorded within six
months, the applicant must either apply to the Planning Board or municipal clerk for a
40
certificate. The certificate must be issued by either the Planning Board or the municipal
clerk if the records of the Board or the municipal clerk show that there has not been
any modification, change, amendment or rescission to the approval of the plan. The
41
certificate will allow the applicant to record the approved subdivision plan within 30
days after the date of certification. The certificate must be dated and either endorsed on
the plan or stated on a separate document which must be recorded and referred to on
the plan.
The six month time period to record a subdivision plan does not apply to a
constructively approved plan. Stoner v. Planning Board of Agawam, 358 Mass. 709
(1971). The Subdivision Control Law also contains no provision which limits the time
period for the recording of an ANR plan.
Completion of Work
Upon the completion of the ways and the installation of municipal services, the
applicant should notify the municipal clerk and the Planning Board, by registered mail,
that the work has been completed. If the Planning Board determines that the
construction or installation has not been completed, the Board must notify the applicant
and municipal clerk, by registered mail, as to how the construction or installation fails
to comply with their rules and regulations.
If the Planning Board fails to give such notification within 45 days after the municipal
clerk received the applicant’s notice, all obligations under a bond will terminate, any
deposit shall be returned and any covenant will become void. If the 45 day period has
expired without such a notification or the release of the performance guarantee by the
Planning Board, the municipal clerk must issue a certificate indicating that the
performance guarantee secured by the Planning Board has terminated.
Modifications, Amendments or Rescissions
Section 81W gives the Planning Board the power on its own motion or on the petition
of any interested person to modify, amend or rescind its approval of a subdivision plan.
The court, in Windsor v. Planning Board of Wayland, 26 Mass. App. Ct. 650 (1988),
concluded that a Planning Board may also modify, amend or rescind a constructively
approved plan. All of the provisions of the Subdivision Control Law relating to the
submission of a definitive plan, so far as apt, are applicable to a modification,
amendment or rescission. The Planning Board should proceed according to the
procedures the Board followed when originally approving the definitive plan. The one
significant qualification on the power of a Planning Board to change the status of an
approved plan is that no modification, amendment or rescission can affect any lot in a
subdivision which has been sold or mortgaged in good faith and for a valuable
consideration subsequent to the approval of the plan without the consent of the owner
of the lot and of the holder of any mortgage on the lot. However, the sale of the entire
parcel of land or of all the lots not previously released by the Planning Board to a
single grantee will not prohibit any modification, amendment or rescission.
42
A Planning Board has the authority to make changes to an approved definitive plan
without the consent of the owners of lots in a subdivision where the changes do not
have a direct and tangible impact on the property rights of the lot owners. The
Planning Board’s authority to modify a definitive plan without the consent of the
property owners was a major issue in Patelle v. Planning Board of Woburn, 20 Mass.
App. Ct. 279 (1985). In Patelle, the court found that amendments to a definitive plan
affecting location of trees, width of streets, planting between curbs and lot lines, traffic
signals, overhead or underground utilities, street lighting, transformation of a cul-de-
sac to a through street, relocation of open space area, and the creation of house lots out
of a portion of land previously designated as open space did not need the consent of lot
owners in a subdivision.
Section 81DD provides that damages sustained by “any person injured in his property
by reason of any modification, amendment or rescission of the approval of a plan under
Section 81W without his consent” are recoverable under MGL, Chapter 79. A
modification, amendment or rescission of approval could result in damages to a
property owner and the Board’s power should be exercised with great care and the
advice of legal counsel.
So far as unregistered land is concerned, no modification, amendment or rescission
takes effect until:
1. the plan as originally approved, or a copy, and a certified vote of the
Planning Board and any additional plan referred to in the vote has been
recorded;
2. an endorsement has been made on the original plan referring to such
vote and where it is recorded; and
3. the vote of the Board is indexed in the grantor index under the names
of the owners of record of the land affected.
So far as registered land is concerned, no modification, amendment or rescission takes
effect until:
1. verified by the Land Court pursuant to MGL, Chapter 185 or,
2. the Land Court does not make such verification until ordered by the
court pursuant to MGL, Chapter 185, Section 114.
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GRANDFATHERING
The Subdivision Control Law provides a protection to certain lots from complying with
the subdivision regulations adopted by the Planning Board. Section 81FF deals with the
applicability of the Subdivision Control Law to previously recorded plans and provides
relief to good faith purchasers of individual building lots.
Unregistered Land
With respect to unregistered land, the first paragraph of Section 81FF provides in part
that:
... recording of the plan of a subdivision in the registry of deeds before
the subdivision control law was in effect in the city or town in which the
subdivision was located shall not exempt the land within such
subdivision from the operation of said law except with respect to lots
which had been sold and were held in ownership separate from that of
the remainder of the subdivision when said law went into effect in such
city or town, and to rights of way and other easements appurtenant to
such lots; and plans of subdivisions which were recorded in the registry
of deeds and subdivisions made without the recording of a plan after said
law had gone into effect in such city or town and before February first,
nineteen hundred and fifty-two, without receiving the approval of the
planning board of such city or town, shall have the same validity and
effect as if the subdivision control law became effective in such city or
town on February first, nineteen hundred and fifty-two, as above
provided.
Under the provisions of the first paragraph of Section 81FF, the recording of a plan
does not exempt unregistered lots in a subdivision except with respect to those lots
which had been sold and were held in “ownership separate from that of the remainder
of the subdivision” when the Subdivision Control Law went into effect in the
community. This lot protection also extends to unapproved plans and subdivisions made
after the Subdivision Control Law took effect but recorded prior to February 1, 1952.
The court discussed the “ownership separate from the remainder of the subdivision”
provision in Clows v. Planning Board of Middleton, 12 Mass. App. Ct. 129 (1981),
when examining whether two parcels of land were entitled to ANR endorsement from
the Planning Board. One ANR plan consisted of 10 lots containing an area of 42,340
square feet and the other plan consisted of 8 lots containing an area of 48,000 square
feet. The lots were shown on a plan which had been recorded in the registry of deeds
prior to the Subdivision Control Law taking effect in the town of Middleton. The case
was remanded to the Superior Court because it was unclear whether the parcels in
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question were held in isolation from the original subdivision on the date Middleton
adopted subdivision control. However, the court noted that if the 81FF protection was
applicable, each parcel would be treated as one protected lot.
At issue in Toothaker v. Planning Board of Billerica, 346 Mass. 436 (1963), was the
meaning in Section 81FF of appurtenant rights of way. The plaintiffs owned
approximately 1200 lots shown on a subdivision plan of over 1800 lots. The
subdivision plan was recorded in 1914 and the Subdivision Control Law took effect in
Billerica March 3, 1951. Of the lots shown on the 1914 plan, 649 were protected by
Section 81FF. The plaintiff submitted a plan to the Planning Board showing a division
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of land into a number of lots which fronted on ways which were shown on the 1914
plan. The court ruled that the plan was subject to the Subdivision Control Law but that
the rights of way of the 649 exempted lots could not be destroyed.
Registered Land
As to the protection afforded registered land, the second paragraph of Section 81FF
provides in part that:
So far as land which has been registered in the land court is affected by
said law, any plan of a subdivision which has been registered or
confirmed by said court before February first, nineteen hundred and
fifty-two, whether the subdivision control law was in effect in the city or
town in which the subdivision was located or not, and whether the plan
of the subdivision was approved by the planning board or not, shall have
the same validity in all respects as if said plan had been so approved, but
the land court shall not register or confirm a plan of a subdivision in a
city or town in which the subdivision control law is in effect which has
been filed on or after February first, nineteen hundred and fifty-two,
unless it has first verified the fact that the plan filed with it has been
approved by the planning board, or would otherwise be entitled if it had
related to unregistered land, to be recorded in the registry of deeds.
The second paragraph of Section 81FF validates all plans which were registered or
confirmed by the Land Court before February 1, 1952. It further provides that after
that date the Land Court cannot register or confirm a plan of land in a subdivision in a
community where the Subdivision Control Law is in effect unless the plan has been
approved by the Planning Board or would have been otherwise entitled, if it was
unregistered land, to be recorded in the Registry of Deeds. The second paragraph also
states that old recorded plans of registered land “shall have the same validity in all
respects as if said plan had been so approved [under the Subdivision Control Law].”
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ZONING FREEZES
Zoning protections for lots or the use of land shown on previously approved plans is
one of the more interesting areas of land use regulation in Massachusetts. A zoning
freeze allows either a use or the construction of a structure which when completed will
not conform to the existing zoning regulations in the community. The zoning protection
provisions for a lot or the use of land shown on a plan are found in MGL, Chapter
40A, Section 6. For the sake of simplicity, zoning freezes fall into one of the following
two categories:
1. Lot Protection
2. Plan Protection
Separate Lot Protection
For many years, zoning legislation in Massachusetts has provided a zoning protection
for separately held substandard building lots. The separate lot protection was inserted
into the Zoning Enabling Act in 1958. As was noted in Planning Board of Norwell v.
Serena, the purpose of the separate lot protection is to protect a once valid lot from
being rendered unbuildable for residential purposes but only if there is compliance with
all the statutory conditions. Presently, MGL, Chapter 40A, Section 6, fourth
paragraph, provides the following separate lot protection:
Any increase in area, frontage, width, yard, or depth requirements of a
zoning ordinance or by-law shall not apply to a lot for single and two-
family residential use which at the time of recording or endorsement,
whichever occurs sooner was not held in common ownership with any
adjoining land, conformed to then existing zoning requirements and had
less than the proposed requirements but at least five thousand square feet
of area and fifty feet of frontage.
The language of the separate lot protection which has caused the most confusion is the
requirement that the lot “at the time of recording or endorsement, whichever occurs
sooner was not held in common ownership with any adjoining land.”
When must the lot be in separate ownership in order for the lot to enjoy the zoning
protection currently afforded separate lots?
The Massachusetts Appeals Court first looked at this issue when it decided Sieber v.
Zoning Board of Appeals, Wellfleet, 16 Mass. App. Ct. 985 (1983). The court found
that if the lot was in separate ownership prior to the town meeting vote which made the
lot substandard then the lot could be built upon for single or two-family use provided
that the lot
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1. conformed to existing zoning when legally created, if any;
2. has at least 5,000 square feet of area and fifty feet of frontage; and,
3. is in an area zoned for single or two-family use.
Later, in Adamowicz v. Town of Ipswich, 395 Mass. 757 (1985), the Massachusetts
Supreme Judicial Court interpreted the separate lot protection provision by responding
to three questions which had been posed by the United States Court of Appeals for the
First Circuit. The court agreed with the Sieber decision and reached the following
conclusions:
1. the word “recording” as appearing in the separate lot provision means
the recording of any instrument, including a deed;
2. the statute looks to the most recent instrument of record prior to the
effective date of the zoning change from which the exemption is sought;
and,
3. a lot meets the statutory requirement of separate ownership if the
most recent instrument of record prior to a restrictive zoning change
reveals that the lot was separately owned, even though a previously
recorded subdivision plan may reveal that the lot was at one time part of
land held in common ownership.
Common Lot Protection
The second sentence of the fourth paragraph of MGL, Chapter 40A, Section 6 provides
protection for common ownership lots. This protection was inserted into the Zoning
Act in 1979. The zoning freeze for common ownership provides that:
Any increase in area, frontage, width, yard or depth requirement of a
zoning ordinance or by-law shall not apply for a period of five years
from its effective date or for five years after January first, nineteen
hundred and seventy-six, whichever is later, to a lot for single and two-
family residential use, provided the plan for such lot was recorded or
endorsed and such lot was held in common ownership with any adjoining
land and conformed to the existing zoning requirements as of January
first, nineteen hundred and seventy-six, and had less area, frontage,
width, yard or depth requirements than the newly effective zoning
requirements but contained at least seven thousand five hundred square
feet of area and seventy-five feet of frontage, and provided that said five
year period does not commence prior to January first, nineteen hundred
and seventy-six, and provided further that the provisions of this sentence
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shall not apply to more than three such adjoining lots held in common
ownership.
In Baldiga v. Board of Appeals of Uxbridge, 395 Mass. 829 (1985), the court found
that the zoning freeze for common ownership lots is not limited to lots which were
created by a plan and recorded or endorsed by January 1, 1976. The court’s
interpretation of the common lot provision provides a unique opportunity to landowners
and developers.
Through the years, one prime concern of the Legislature has been to protect certain
divisions of land from future increases in local zoning requirements. Zoning freezes for
subdivision and non-subdivision plans have always been measured from the date of the
Planning Board’s endorsement. However, the common ownership freeze runs from the
effective date of the zoning amendment, and not from the date of the Planning Board’s
endorsement.
The interpretation of the common ownership zoning freeze by the court opened doors
which in the past had not been available to landowners. Since the freeze period does
not commence until the effective date of the zoning amendment, having a plan recorded
or endorsed guarantees a landowner a future five year zoning freeze from increased
dimensional requirements for single or two-family use. The common ownership
protection also provides an opportunity to checkerboard lots shown on a definitive plan
in clusters of three to obtain the five year protection. This technique could extend the
zoning life of lots shown on a definitive plan beyond the eight year exemption period.
The common ownership freeze increases the protection afforded ANR plans. In
addition to land being protected from use changes to the zoning bylaw or ordinance,
the lots shown on such plans will also be protected from increased dimensional
requirements to single and two-family use if the lots meet the conditions for common
ownership protection.
The common ownership zoning freeze protects no more than three adjoining lots from
increases in area, frontage, width, yard, or depth requirements to a lot for single or
two-family use. In order for a lot to qualify for the protection, it must meet the
following conditions:
1. the lot must be shown on a plan which is either recorded or endorsed
before the effective date of the increased zoning requirement;
2. the lot must have at least 7,500 square feet of area, and at least 75
feet of frontage;
3. the lot must comply with applicable zoning requirements when
recorded or endorsed and conform to the zoning requirements in effect
as of January 1, 1976; and,
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4. the lot must have been held in common ownership with any adjoining
land at the time of the effective date of the increased zoning
requirement.
Preliminary Plan Protection
Through the years, one prime concern of the Legislature has been to protect certain
divisions of land from future changes in local zoning requirements. The fifth paragraph
of MGL, Chapter 40A, Section 6 protects land shown on a preliminary plan from all
zoning changes for a period of eight years. Land shown on a preliminary plan will be
governed by the zoning regulations in effect at the time of submission of the plan. If a
preliminary plan is submitted, a definitive plan must be submitted within seven months.
The eight year zoning freeze runs from the date the Planning Board endorses its
approval of the definitive plan. Section 6 provides in part as follows:
If a ... preliminary plan followed within seven months by a definitive
plan, is submitted ... before the effective date of [the] ordinance or by-
law, the land shown on such plan will be governed by ... the zoning
ordinance or by-law, if any, in effect at the time of the ... submission ...
[of] such plan ... and, if such definitive plan ... is finally approved, for
eight years from the date of the endorsement of such approval ... .
The zoning in effect is the zoning regulations which have been adopted by the City
Council or town meeting. The publication of the public hearing notice by the Planning
Board on a proposed zoning change does not prevent a landowner from filing a
subdivision plan to protect his land from future zoning changes. MGL, Chapter 40A,
Section 5, provides:
The effective date of the adoption or amendment of any zoning
ordinance or by-law shall be the date on which such adoption or
amendment was voted upon by a city council or town meeting; if in
towns, publication in a town bulletin or pamphlet and posting is
subsequently made or publication in a newspaper pursuant to section
thirty-two of chapter forty.
The net effect of Chapter 40A is to impose a moratorium on the application of new and
more stringent zoning requirements imposed by an amendment to a zoning ordinance
or bylaw which occurs subsequent to the submission of a plan under the Subdivision
Control Law provided the plan is duly approved by the Planning Board.
There have been many court decisions dealing with the relationship between the
operation of the Subdivision Control Law and the zoning protection provisions of the
Zoning Act. In Arenstam v. Planning Board of Tyngsborough, 29 Mass. App. Ct. 314
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(1990), the court interpreted the extent of the seven month protection for land shown
on a preliminary plan.
In Arenstam, a landowner had filed a preliminary plan prior to the town amending its
zoning bylaw. The new zoning bylaw prohibited commercial or industrial development
on his parcel. Exactly seven months after submission of the preliminary plan, a
definitive plan was filed with the Planning Board. The plan was eventually disapproved
by the Planning Board because the definitive plan did not comply with their rules and
regulations or with the old zoning bylaw in effect at the time of the submission of the
preliminary plan. At a later date, the landowner made the necessary corrections and
resubmitted his definitive plan. The planning Board disapproved the amended plan on
the grounds that the land was now governed by the new zoning bylaw because the
amended plan was submitted after the seven-month protection period.
The landowner argued that because the original definitive plan was submitted within
seven months of the preliminary plan, he was still entitled to the zoning freeze. In
support of his argument, he directed the court to Section 81U of the Subdivision
Control Law which places no time limit on submitting an amended plan when the
original plan has been disapproved by the Planning Board. The second paragraph of
Section 81U provides in part:
In the event of disapproval, the planning board shall state in detail
wherein the plan does not conform to the rules and regulations of the
planning board or the recommendations of the health board ... and shall
revoke its disapproval and approve such plan which, as amended
conforms to such rules and regulations and recommendations.
The court, in deciding against the landowner, determined that the Subdivision Control
Law does not provide for such an open-ended process and places the responsibility on a
landowner to present a definitive plan which is entitled to approval by the Planning
Board. The seven month zoning freeze is lost if the definitive plan is not approved, and
a landowner fails to appeal the disapproval pursuant to Section 81BB of the Subdivision
Control Law.
Definitive Plan Protection
As previously mentioned, by filing a definitive subdivision plan, a landowner can
protect the land shown on such plan from the application of new and more stringent
zoning requirements imposed by an amendment to a zoning ordinance or bylaw which
occurs after the submission of the definitive plan provided the definitive plan is
subsequently endorsed by the Planning Board. The duration of the definitive plan
zoning freeze has had a history of ups and downs, though mostly ups. It began as a
three year freeze in 1957 and in 1961 the freeze was increased to five years. In 1965
the freeze was set at seven years but descended once again to five years in 1975. In
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1982 the freeze period went up to eight years. Moreover, the definitive plan zoning
freeze is extended by a period equal to the time a moratorium on construction, the
issuance of permits or utility connections is imposed by a governmental entity.
A successful appeal under Section 81BB of the denial of the definitive plan will
preserve the definitive plan zoning freeze. Any appeal or litigation regarding any lot
shown on an approved definitive plan will also extend the zoning freeze provided final
adjudication is in favor of the lot owner.
Presently, MGL, Chapter 40A, Section 6 affords the following eight year zoning
freeze to land shown on a definitive plan:
If a definitive plan, or a preliminary plan followed within seven months
by a definitive plan, is submitted to a planning board ... and written
notice of such submission has been given to the city or town clerk ... the
land shown on such plan shall be governed by the applicable provisions
of the zoning ordinance or by-law, if any, in effect at the time of the
first such submission while such plan or plans are being processed under
the subdivision control law, and, if such definitive plan ... is finally
approved, for eight years from the date of endorsement of such approval
... .
What happens if within the eight year period a community increases its minimum lot
area, lot frontage or yard requirements? Can unbuilt lots be conveyed into separate
ownership after the increased zoning requirement and still gain the benefit of the
separate lot protection? The answer is no.
When the Legislature rewrote the Zoning Act in 1975, they eliminated some key
language from the separate lot protection provision. Prior to the 1975 rewrite, a lot
qualified for separate lot protection if it was in separate ownership prior to the effective
date of the more restrictive zoning requirement or if it was conveyed into separate
ownership during the definitive plan zoning freeze. In order for a lot to be conveyed
into separate ownership within the definitive plan freeze period and be eligible for
separate lot protection, the statute required that the definitive plan must have been
endorsed by the Planning Board prior to the effective date of the increased zoning
requirement.
In Wright v. Board of Appeals of Falmouth, 24 Mass. App. Ct. 409 (1987), the court
reviewed the old separate lot protection provisions and its application to lots shown on
a previously approved definitive plan. A preliminary plan had been submitted to the
Planning Board prior to the town’s increasing the minimum lot area requirement. After
the effective date of the increased lot area requirement the Planning Board approved
and endorsed a definitive plan. Prior to the expiration of the definitive plan zoning
freeze, which at that time was seven years, all 76 lots shown on the definitive plan
were conveyed into separate ownership. At a later date, one of the lot owners applied
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for a building permit to construct a single-family home. The building permit
application was denied.
The court found that the lot was not entitled to the old separate lot protection because
the definitive plan was endorsed by the Planning Board after the effective date of the
increased zoning requirement. If the definitive plan had been endorsed prior to the
effective date of the increased zoning requirement, the lots conveyed into separate
ownership within the seven year period would have had the benefit of the separate lot
protection. A similar result was also reached in Tsagronis v. Board of Appeals of
Wareham, 33 Mass. App. Ct. 55 (1992), where a definitive plan had been approved
after the town had increased its zoning requirements.
In Wright, the court also reviewed the current separate lot protection provision and
concluded that in order to be eligible for such protection the lot must be in separate
ownership at the time of the increased zoning requirement. Therefore, the current eight
year definitive plan zoning freeze is a build protection. Building permits for lots shown
on an approved definitive plan, which do not have separate lot protection, must be
issued prior to the expiration of the eight year period. As was noted in Falcone v.
Zoning Board of Appeals of Brockton, 7 Mass. App. Ct. 710 (1979), the mere filing of
a building permit application will not stop the running of the zoning freeze period.
However, in Green v. Board of Appeals of Norwood, 2 Mass. App. Ct. (1974), the
court found that if a building permit application is filed in a timely manner, the zoning
protection will not be lost due to a local official’s inaction.
ANR Plan Protection
MGL, Chapter 40A, Section 6 states in part that:
... the use of land shown on [an approval not required plan] ... shall be
governed by the applicable provisions of the ... zoning ... in effect at the
time of submission of such plan ... for a period of three years from the
date of endorsement ... that approval ... is not required ... .
What the Legislature meant by the phrase “the use of the land shown on such plan shall
be governed ...” has been subject to a number of court cases. Did the Legislature
intend that the use of the land would be governed by all applicable provisions of the
zoning bylaw in effect when the plan was submitted to the Planning Board? Or did the
Legislature mean, as to use, that the land shown on the plan would only be protected
from any bylaw amendment which would prohibit the use?
In Bellows Farms v. Building Inspector of Acton, 364 Mass. 253 (1973), the court
found that the zoning statute merely protected the land shown on an ANR plan as to the
kind of uses which were permitted by the zoning bylaw at the time of the submission of
the plan. This decision established the court’s view that the land shown on an ANR
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plan would not be immune to changes in the zoning bylaw which did not practically
prohibit the protected use.
At the time Bellows Farms submitted an ANR plan to the Planning Board, apartments
were permitted as a matter of right. Based on the “Intensity Regulation Schedule” in
effect at that time of submission, a maximum of 435 apartment units could have been
constructed on the land shown on the plan. After the submission of the plan, the town
amended the “Intensity Regulation Schedule” and off-street parking and loading
requirements. The town also adopted another zoning amendment which required site
plan approval by the Board of Selectmen. If the amendments applied to the land shown
on the plan, Bellows Farms would only be able to construct a maximum of 203
apartment units.
The town argued that the protection afforded by the statute only extended to the use of
the land and, even though the zoning amendments would substantially reduce the
number of apartment units which could be constructed on the parcel, Bellows Farms
could still use its land for apartments. The court agreed with the town. However, the
court did note that the use protection could extend to certain changes not directly
relating to use, if the impact of such changes, as a practical matter, nullified the use
protection afforded to land shown on an ANR plan.
The court further stressed this “practical prohibition” theory in Cape Ann Land
Development Corp. v. City of Gloucester, 371 Mass. 19 (1976), where the city
amended its zoning ordinance so that no shopping center could be constructed unless a
special permit was obtained from the City Council. When Cape Ann had submitted its
ANR plan, a shopping center was permitted as of right. The issue was whether Cape
Ann was required to obtain a special permit and if so whether the City Council had the
discretionary authority to deny the special permit. The court held that Cape Ann was
required to obtain a special permit and the City Council could deny the special permit
if Cape Ann failed to comply with the zoning ordinance except for those provisions that
practically prohibited the shopping center use. The court warned the City Council that
they could not deny the special permit on the basis that the land would be used for a
shopping center. However, the City Council could impose reasonable conditions which
would not amount to a practical prohibition of the use. Later, in Marashlian v. Zoning
Board of Appeals of Newburyport, 421 Mass. 719 (1996), a different result was
reached when the Massachusetts Supreme Judicial Court did not disturb a Superior
Court judge’s finding that a landowner was not required to obtain a special permit. In
Marashlian, the use of the locus for a hotel was permitted as a matter of right at the
time of the ANR endorsement. At a later date, the zoning was changed to require a
special permit for hotel use. The Superior Court judge found that the use of the locus
for a hotel was protected as of right and no special permit was required to allow the
construction of a hotel.
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In Perry v. Building Inspector of Nantucket, 4 Mass. App. Ct. 467 (1976), the court
found that a proposed single-family condominium development was not entitled to a
three year protection from increased dimensional requirements. The town had amended
their zoning bylaw which prohibited Perry’s proposed use in the zoning district where
his land was located. At the same time, the town increased the intensity regulations in
another zoning district where Perry’s proposed use was a permitted use. In applying
the principle of the Bellows Farms case where the use is no longer authorized in the
zoning district, the court found that a reasonable accommodation must be made by
either applying the intensity regulations applicable to a related use within the zone or,
alternatively, applying the intensity regulations which would apply to the protected use
in a zoning district where that use is permitted. The court further noted that no hard
and fast rule can be laid down and the reasonableness of the accommodation will
depend on the facts of each case.
The three year use protection is not confined to those uses which were permitted as a
matter of right at the time of the submission of the ANR plan. In Miller v. Board of
Appeals of Canton, 8 Mass. App. Ct. 923 (1979), the court held that uses authorized
by special permit are also entitled to the zoning freeze.
An ANR plan does not have to be recorded in order for the land shown on the plan to
be entitled to the zoning freeze. In Long v. Board of Appeals of Falmouth, 32 Mass.
App. Ct. 232 (1992), the court held that nothing in the Zoning Act requires recording
of an ANR plan as a prerequisite for a zoning freeze.
In Wolk v. Planning Board of Stoughton, 4 Mass. App. Ct. 812 (1976), the court
found no basis in the Zoning Act which would permit the freeze provisions to be
combined in a “piggy-back” fashion. Wolk had an ANR plan endorsed by the Planning
Board. He unsuccessfully argued that the three year use protection allowed him to
submit a preliminary or definitive subdivision plan within that time period and the
plans would be governed by the provisions of the zoning bylaw in effect at the time he
submitted his ANR plan.