CPTC: Subdivision Control Law

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Robin Stein, Esq presented this module.

The legal history of subdivision control dates back to 1693 with "An act for highways". Massachusetts's current subdivision control law dates to 1953.

The subdivision control law is MGL chapter 41, sections 81K--81GG. It refers to local government regulations for the division of land into more than one lot, with access provided by a new way, or an existing way.

When dealing with subdivisions, a planning board has the authority to protect safety, convenience, and welfare. It also has the authority to ensure that proper sanitary conditions exist, to provide for lessening congestion, to reduce danger to life and limb (e.g., dangers due to automobiles), and to ensure access for emergency vehicles.

Planning board must approve subdivisions that comply with the board's rules and regulations. These approvals are generally as of right.

Rules and Regulations. MGL Chapter 41 Sec 81Q requires planning boards to adopt subdivision control regulations. These must specify the regulations for the construction of ways. Rules and regulations can only be modified via a properly noticed public hearing.

Rules and regulations must be recorded with the registry of deeds, with the planning board, and with the town clerk.

Question: How are notice requirements changing with the demise of newspapers?

Answer: Until the legislature changes the law, there's no change to notice requirements.

Question: What about ways that are regularly flooded?

Answer: Changes to rules and regulations don't apply to existing ways, but it's possible for regulations to address such issues in ways that might be created in the future.

Question: Can subdivision control law address the provisioning of EV charging stations?

Answer: Not sure; that will require some thought.

Planning boards must approve subdivision plans that comply with their regulations.

Boards cannot attach conditions to a definitive subdivision control plan, unless their regulations allow them to do so.

Regulations must be sufficiently clear so that landowners understand what's required of them. Avoid ambiguity; courts have struck down regulations that were too vague.

Planning boards may enforce zoning regulations (e.g., minimum lot size), even if their regulations don't explicitly require compliance with zoning.

During a plan application, boards may seek information about things that aren't explicitly regulated.

Planning boards can disapprove of subdivisions plans if the public way leading to the subdivision is inadequate. Boards cannot require an applicant to improve ways that they do not control.

Question: How would a planning board determine adequacy without a traffic study?

Answer: The board may use peer review consultants or seek the advice of an engineer.

Question: Suppose an adjacent public way is inadequate, and the applicant has no ability to improve it. What can a planning board do?

Answer: The board can deny the application. There may be other options available, based on the specific circumstances.

Approval Not Required (ANR) Plans. ANR plans are covered in MGL Chapter 41 Section 81P. ANR applies if every lot has the required frontage on a qualified way. ANR approval does not require a public hearing.

In RCV vs. the ZBA of Brockton, the court determined that 81P applies if each lot that results from a split has adequate frontage on a public way at the time of subdivision. But this doesn't make the resulting parcels eligible for protection under Chapter 40A Section 6.

There are three standards for ANR subdivisions: (1) the lots must abut a qualified way, (2) all lots must have adequate frontage, and (3) vital access must exist for each lot. Note that there is no requirement for minimum lot area.

"Abutting a public way" means abutting a way that the Town Clerk certifies to be a public way, or a way that was previously determined to be qualified under the subdivision control law.

The parcels that result from an ANR subdivision must meet the frontage requirements in the zoning bylaw. If there isn't adequate frontage, the applicant must request a waiver from the planning board. They'll also need a variance from the ZBA, in order to build on such lots.

Vital access requirements have largely evolved from case law. The subdivision control law doesn't expressly state that the planning board needs to determine adequacy before approving. Adequacy usually focuses on (1) the adequacy of the way providing the frontage, and (2) adequacy of access to buildable parts of the lot.

Question: Does an applicant need to affirm that they're applying for an ANR subdivision.

Answer: This is usually implied by the process; the applicant will file an ANR permit.

Question: In Arigo, what was the court's logic for reversing the variance.

Answer: The court determined that the variance criteria in Chapter 40A Section 10 weren't satisfied.

Approval of an ANR plan doesn't imply compliance with zoning. It's common to write "May not comply with zoning" or "not a building lot" on the plan being approved.

An ANR application can be denied if the parcel(s) abut a public way that hasn't been constructed, or if there's not sufficient access for emergency vehicles.

If the abutting way is a private way, the planning board has the discretion to determine adequacy.

ANR can't be denied if there is physical access from an adequate way to the buildable part of the lot. ANR can be denied if wetlands prevent access, but not simply because wetland approval is needed.

Chapter 41 Section 81L says when a definitive subdivision plan is necessary. There is an exemption for lots that contained two buildings before the law went into the effect. However, an exempted lot is not necessarily a buildable lot.

Section 81X covers perimeter plans. These show existing lot lines. They're usually filed so that an owner can obtain protection of a three-year zoning freeze on the parcels.

Courts have determined that parcels clearly labeled "not a building lot" are not lots under the definition. Such lots are often denoted on ANR plans, with that language. (In the subdivision control law, a "lot" is a parcel that can be built upon.)

ANR can be used to remove lot lines (i.e., to join adjacent parcels).

ANR can't be denied if there's sufficient frontage and access, even if the plan indicates that other zoning violations exist. Frontage is the only dimension that matters. Boards may annotate the approved plan, noting that zoning deficiencies may exist.

Subdivision Administration. Preliminary plans are optional for residential subdivisions, but required for commercial ones. Preliminary plans aren't recorded at the registry. They're usually a good way to provide review and feedback in advance of filing a definitive subdivision plan.

Definitive subdivision plans are delivered to the planning board in person, or via registered mail. Section 81R allows boards to waive some of their rules and regulations. For example, a board might waive some standards for a smaller road. However, the board cannot waive the definition of "applicant", which comes from Chapter 41 Section 81L.

The Board of Health has 45 days to report (recommending approval or disapproval) on definitive subdivision plans. If disapproved, the Board of Health must indicate what areas can't be used for the construction of buildings.

The planning board can (a) approve, (b) approve and modify, or (c) disapprove definitive subdivision plans. The board can also impose conditions. Approval requires a simple majority. If the board disapproves, its decision must specifically cite the reasons for doing so. Applicants can appeal the denial of a definitive subdivision plan.

Statutory timelines are important. Failure to follow timelines may result in a constructive approval.

Before signing a definitive subdivision plan, boards must obtain performance guarantees. These are typically in the form of bonds, security deposits, covenants, or tri-partite agreements. Chapter 41 Section 81U contains details.

Chapter 41 Section 81W deals with modifications, amendments, and rescission. All of these actions require a noticed public hearing. They can't affect lots that have already been sold or mortgaged, without the approval of the lot owner.

Plans cannot be filed with the registry unless they've been endorsed (approved) by the planning board, or the applicant obtains a certificate of constructive approval from the Town Clerk.

The planning board or ten taxpayers can seek injunctive relief, with a one year statute of limitations.

Subdivision Grandfather protection. See Chapter 41 Section 81FF. These protections apply to subdivisions on unregistered land, prior to the subdivision control law's enactment.

Chapter 40A Section 6 Paragraph 5 protects land specified in a preliminary plan for eight years, if a definitive plan was submitted within seven months and eventually approved. The eight years starts when the definitive plan is approved (this is a "zoning freeze"). If the municipality enacts a moratorium on construction, the freeze is extended by the length of the moratorium. The freeze means that dimensional and use regulations in effect at the time of subdivision continue to apply for eight years.

The rescission of a subdivision plan does not terminate the zoning freeze.

ANR plans have a three-year freeze for zoning uses, but not for dimensional changes.