By Richard D. Vetstein, ESQ
Score One For Property Rights Advocates
Massachusetts has the well-deserved reputation of being one of the
most challenging states to permit a new housing development due to its
myriad of rules, regulations and zoning by-laws. Real estate developers
seeking to build a new subdivision typically go through an arduous
permitting process before the local Planning Board, Board of Selectmen,
Board of Health, Conservation Commission, Zoning Board of Appeals and
other town boards.
Open Space Set-Asides
In what has become very much en vogue and required in the
last decade are towns requiring that the developer dedicate or deed some
of its developable land for open space and recreational purposes. In
the recent case of Collings v. Stow Planning Board (embedded
below), the Appeals Court ruled that the planning board went too far in
requiring that the developer set aside almost 6 acres of a 5 lot
subdivision for open space and "environmentally significant areas with
Now usually, the developers don't like to sue town planning boards
over these type of exactions or "give and takes" as they want to get
their projects approved and "play ball" with the towns. Apparently, the
Collings family stood their ground in this case and won a decent victory
for other developers who are less inclined to sue town boards.
Ruling: Open Space Requirements Must Be Tied to Legitimate Subdivision Concerns
Generally, a planning board condition requiring the dedication of
open space which in effect reasonably limits the number of buildable
lots, imposed out of safety concerns arising from the length of the
street, would not be illegal. The Appeals Court found
that the Stow planning board did not limit itself to a reasonable open
space requirement but went much farther and required dedication of open
space for public use, including the actual transfer of that open space
to the town or a land trust. The court ruled that the exactions also
provided no additional benefit above and beyond the open space
requirement that relate to the safety concerns that are the subject of
the subdivision law and the street length requirements. "Although
a planning board's authority under the subdivision control law
certainly encompasses, in appropriate circumstances, requiring open
space, it does not extend to requiring the transfer of that open space
to the public for reasons unrelated to adequate access and safety of the
subdivision without providing just compensation," the Court held.
This case is a wake up call to town planning boards who may be a bit power-hungry.
Collings v. Planning Board of Stow
View more from The Massachusetts Real Estate Law Blog
Mr. Vetstein has represented clients in hundreds of lawsuits and disputes involving business, real estate, construction, condominium, zoning, environmental, banking and financial services, employment, and personal injury law.
In real estate matters, Mr. Vetstein handles residential and commercial transactions and closings. In land use, zoning, and licensing matters, Mr. Vetstein offers his clients an inside perspective as a former board member of the Sudbury Zoning Board of Appeals. Mr. Vetstein has an active real estate litigation practice, and was a former outside claims counsel for a national title company.
Drawing on his own business degree and experience, Mr. Vetstein assists his business clients with new business start ups, acquisitions, sales, contract, employment issues, trademarks, and succession planning. Mr. Vetstein also litigates, arbitrates and mediates a wide variety of commercial disputes.
For more information about LexisNexis products and solutions connect with us through our corporate site.