Collings v. Planning Board

947 N.E.2d 78, 79 Mass. App. Ct. 447
CourtMassachusetts Appeals Court
DecidedMay 10, 2011
DocketNo. 10-P-533
StatusPublished
Cited by6 cases

This text of 947 N.E.2d 78 (Collings v. Planning Board) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collings v. Planning Board, 947 N.E.2d 78, 79 Mass. App. Ct. 447 (Mass. Ct. App. 2011).

Opinion

Kafker, J.

The issue presented to us is whether, as a condition of granting subdivision approval, the town of Stow (town) planning board (board) may require dedication of open space for public use and actual conveyance of that open space to the town in exchange for certain waivers without violating G. L. c. 41, § 81Q. The plaintiffs, Robert and Caroline Collings and Linda S. Cornell, appealed to the Land Court contesting the condition, and on the plaintiffs’ motion for summary judgment, the judge affirmed the decision of the board, following which the plaintiffs appealed to this court. In addition, we address the plaintiffs’ contention that the judge below failed to issue a declaratory judgment locating the relevant zoning district boundaries on their property.

Background. The plaintiffs own more than fifty-five acres of land in the town, a portion of which abuts the Assabet River (locus). The locus is located principally within the residential zoning district but portions lie within the recreation/conservation district, the flood plain/wetlands overlay district, and the water resource protection overlay district.3 Thirty-nine of the fifty-five acres are suitable for development.4 The plaintiffs submitted a definitive subdivision plan seeking approval for five residential lots, although the board noted in its decision that the locus has the potential for in excess of ten lots.

The proposed access to the five lots is from Barton Road, a public way, over a new 1,300 foot-long street ending in a cul-de-sac.5 Section 7.8.2.2 of the town’s zoning bylaw provides that cul-de-sac streets shall not exceed 500 feet in length except that the board, by waiver, may allow cul-de-sac streets up to 1,500 feet in length but only if certain conditions are met. One of the conditions requires dwelling units constructed on lots with frontage on the cul-de-sac to be provided with a residential sprinkler system and another requires the subdivider to provide “a minimum of ten percent of the portion of the locus suitable [449]*449for development (excluding wetlands) to be dedicated for open space, parks or future public facilities and infrastructure.”6 The plan also required other waivers which are not at issue here. The board granted approval with the necessary waivers along with numerous conditions.

The board, based on the definitive subdivision plan, determined that there were four “open space” areas totaling 5.68 acres. As a condition of approval, the board required modification of the plan to show a minimum of ten percent (five and one-half acres) of the land to be dedicated for open space with public access acceptable to the board. The board further required the open space to be provided in two distinct parcels, each with access to the cul-de-sac, and the board specifically required a portion of lot 5, described as “an environmentally significant area with views,” to be included in the open space parcels.

The board acknowledged that the developer proposed to transfer ownership and control of the open space to a homeowner’s association, the governing provisions of which would require that the open space be made available to the public for “passive, non-motorized activities such as hiking, dog walking, cross country skiing, wildlife watching and ice-skating.” This proposal was unacceptable to the board, however, because the homeowner’s association reserved “the right to deny access to the open space to any persons operating motorized vehicles, including ATVs, motorcycles, snowmobiles, cars, trucks, etc. and to prohibit the public, if there are multiple problems with trash, property damage, violation of restrictions, trespassing, etc.” Instead, the board required the plaintiffs to offer the open space parcels first to the town’s conservation commission for open space and “passive recreation with public access in perpetuity,” or, should the commission decline to accept the open space, “to a land trust or similar non profit organization subject to a Conservation Restriction with the Town named as a benefitted party.” Finally, should both the conservation commission and the land trust decline the offer, the board required transfer of the open space to a homeowners association, subject to a conservation restriction, with the [450]*450town named as a benefitted party, and public access with appropriate restrictions.

In support of these conditions, the board explained as follows:

“In accordance with [G. L. c. 41, §§ 81R-U] and the Rules and Regulations Governing the Subdivision of Land of the Stow Planning Board ... the Board has the authority to require open space for passive recreation with public access in exchange for strict compliance — waivers — from the requirements of the Subdivision Rules and Regulations where such waivers are in the public interest and not inconsistent with the Subdivision Control Law.
“The Board finds that this Decision, as conditioned herein, includes requests for significant waivers from the requirements of the rules and regulation^] and therefore the request for open space for passive recreation with public access is appropriate in scale and relationship to the impacts of the proposed subdivision. ... If said waivers were not granted, the applicant would be limited to a 500’ as opposed to a 1300’ cul-de-sac as per the Rules and Regulations Governing Subdivision of Land of the Stow Planning Board.”

On appeal to the Land Court and before us, the plaintiffs argue that the board exceeded its authority in imposing the condition that the plaintiffs transfer open space to the conservation commission or a land trust. In support of their argument, they point to G. L. c. 41, § 81Q, which prohibits, as a condition of approval of a subdivision, dedication of subdivision land to the public use or conveyance to the town for any public purpose without just compensation. The board ignored this restriction in its decision but the Land Court judge, on the town’s motion for summary judgment, addressed it directly. While conceding the mandated transfer to the town “is the kind of exaction that the statute forbids,” the judge reasoned that the condition does not run afoul of § 81Q because it was in exchange “for proper and rational consideration,” i.e., the discretionary “waiver of the street length rule.” The judge noted that the open space requirement may have driven down the number of house lots the ap[451]*451plicants will develop and in that way is related to the public safety concerns that underlie the maximum street length rule. The judge concluded that “the open space requirement was a reasonable response to the concerns underlying the street length rule.”

Discussion. 1. Public use condition. General Laws c.

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Bluebook (online)
947 N.E.2d 78, 79 Mass. App. Ct. 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collings-v-planning-board-massappct-2011.