Samuelson, et al. v. Planning Board of Orleans, et al. (Lawyers Weekly No. 11-079-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑1418 Appeals Court MARTHA SAMUELSON & another[1] vs. PLANNING BOARD OF ORLEANS & others.[2] No. 13‑P‑1418. July 2, 2014. Subdivision Control, Conditions, Decision of planning board, Planning board. Practice, Civil, Subdivision control appeal. In 1975, the planning board of Orleans (board) approved the subdivision of a large parcel of oceanfront land into six lots. A private road known as Tom’s Hollow Lane provides access to the lots. The 1975 approval imposed various express conditions, including that any further subdivision of the six lots would require both that improvements be made to Tom’s Hollow Lane and that municipal water service be installed.. Thomas R. and Patricia W. Kennedy (the Kennedys) own one of the six original lots on Tom’s Hollow Lane,[3] and they desire to subdivide that lot further into two lots. On June 22, 2010, the board approved the Kennedys’ proposal without requiring them to improve the road or to install municipal services in accordance with the terms of the 1975 approval.[4] Martha and Paul Samuelson (the Samuelsons), who own a lot that abuts that of the Kennedys, appealed the board’s decision pursuant to G. L. c. 41, ‘ 81BB. In a detailed and comprehensive decision, a Land Court judge ruled in the Samuelsons’ favor on summary judgment and vacated the board’s decision. We affirm. The Kennedys do not argue that the board lacked authority to impose the 1975 conditions and, in any event, the time for challenging those conditions has long since passed. Murphy v. Planning Bd. of Hopkinton, 70 Mass. App. Ct. 385, 388-389 (2007). Instead, the Kennedys argue that the conditions expired in 2005 “by operation of G. L. c. 184, ‘ 23, which, generally, limits conditions or restrictions on the title or use of real property to a term of thirty years.” Killorin v. Zoning Bd. of Appeals of Andover, 80 Mass. App. Ct. 655, 657 (2011). We agree with the judge’s conclusion that the conditions imposed here are not subject to that statute. See id. at 657-660. To be sure, as the Kennedys highlight, Killorin involved a condition imposed by a zoning board of appeals in a special permit issued pursuant to G. L. c. 40A, ‘ 9, while the condition here was imposed by a planning board as part of a subdivision approval issued pursuant to G. L. c. 41, ‘ 81U. However, we disagree with the Kennedys that […]