In the typical definitive subdivision plan scenario, if a plan requires waivers from the planning board’s rules and regulations, the developer goes before the board on bended knee, fearful the board will either deny the plan outright or – as often happens – impose onerous conditions in exchange for granting the necessary waivers. In Collings v. Planning Board of Stow (pdf), the Appeals Court took a step toward leveling the playing field by shooting down the defendant planning board’s attempted land grab.
The developer in Collings filed a plan showing a 1,300-foot-long dead-end street that would provide access to five residential house lots. The Stow Planning Board’s rules and regulations say that dead-end streets can’t exceed 500 feet in length except that the Board may, by waiver, allow such streets up to 1,500 feet in length if (1) each proposed house has a fire sprinkler system, and (2) at least 10% of the non-wetland area of the subdivision is dedicated for open space, parks or future public facilities.
The Planning Board granted the necessary waivers and approved the plan, subject to a condition that the developer agree to dedicate at least 10% of the property to open space with public access. The Board went even further, requiring that this open space be offered to the town’s conservation commission or to a land trust, in either case with a restriction that the space be used – in perpetuity – for passive recreation with public access.
Section 81Q of the Massachusetts Subdivision Control Law specifically prohibits the conditioning of plan approval on the dedication of land to public use, or the conveyance of land to the state or to the municipality, without just compensation. In Collings, the Planning Board argued that Section 81Q must be read in the context of Section 81R, which gives the Board seemingly unbridled authority to impose conditions in exchange for waivers from its rules and regulations.
The trial judge agreed with the Board, ruling that the open space requirement was reasonable in light of the concerns underlying the dead-end street limitation. But the Appeals Court reversed, concluding that “the exercise of the discretion to grant a waiver must be guided by the standards set forth in § 81R and not the desire to exact a public access to and control of private property.” The Appeals Court found that although a planning board may require, as a condition of granting a waiver, that a subdivision include a certain amount of open space, the board can’t require dedication of that space to public use, or the actual conveyance of the space to the town, without compensating the developer.
Let’s hope Collings spells the end of local regulations that seek to strong-arm developers into dedicating land to public use without just compensation.