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Do Private Parties Have the Right to Enforce Covenants and Conditions Imposed by a Planning Board as Part of an Approved Definitive Subdivision?

Recently we were asked to address the right of lot owners in an approved subdivision to enforce the terms of a covenant imposed by the Planning Board as part of the definitive subdivision approval. The restriction barred further division of lots. The Planning Board, however, approved a further division by endorsing an Approval Not Required (ANR) plan pursuant to G.L. c. 41, § 81L. Multiple lot owners in the subdivision brought suit in the Land Court challenging the ANR Plan as legally-untenable because it violated the terms of the underlying subdivision approval and covenant. This post explores the nature of such planning board covenants and who can enforce them.

A. Subdivision Conditions and Covenants Are Not Private Deed Restrictions.

Private deed restrictions are governed by G. L. c. 184, § 23 et. seq. and an exception is carved out for restrictions held by governmental bodies, per c. 184, § 26. According to its plain text, and as a matter of settled law, the covenant at issue in the case litigated by our office constituted a "restriction . . . held by" a "governmental body" and not a private deed restriction. As such and as further explicated below, the lot owners in the subdivision did not have the right to enforce the covenant. Two published decisions from the Appeals Court are instructive and were binding on the question: Samuelson v. Planning Bd. of Orleans, 86 Mass. App. Ct. 901, 901-902 (2014), and Murphy v. Planning Bd. of Hopkington, 70 Mass. App. Ct. 385 (2007).

In Samuelson, the private defendants argued that a condition of approval of a definitive plan under the Subdivision Control Law is subject to the limitations period applicable to private deed restrictions under G. L. c. 184, § 23, and thus the relevant conditions had lapsed. See id. at 901. Even though the Appeals Court had previously held in Killorin v. Zoning Bd. of Appeals of Andover, 80 Mass. App. Ct. 655 (2011), that the statutory limitations period does not apply to conditions contained in special permits, imposed pursuant to G. L. c. 40A, § 9, the defendants in Samuelson, curiously argued that conditions imposed pursuant to G. L. c. 41, § 81U, are different. Rejecting the argument and sustaining the judgment of the Land Court, the Appeals Court reasoned that "[t]he holding of Killorin does not turn on the identity of the local board or on the particular nature of the regulatory decision at issue. Rather, the key distinction we drew there was between land use restrictions 'created by deed, other instrument, or a will,' and land use restrictions imposed as a condition to the discretionary grant of regulatory approval under the police power." Id. at 902. Thus, conditions of a subdivision approval, imposed pursuant to a local planning board's discretionary authority to grant such regulatory approval, are by definition not private deed restrictions.

Similarly, in Murphy, the Court was called upon to determine whether a restrictive covenant, required in exchange for ANR endorsement, was subject to G. L. c. 184, §§ 27-30, or was exempt from the statutes' requirements pursuant to G. L. c. 184, § 26, because it was "held by any governmental body." 70 Mass. App. Ct. at 391-392, quoting § 26. Affirming the Land Court judge's conclusion, the Murphy Court agreed that such covenants are exempt from G. L. c. 184, §§ 27-30 by § 26, and are "held by" a "governmental body" per § 26. See id. at 391-397. The Court reasoned that the "plain purpose of" the "amendments" that effected the adoption of § 26 "was to exempt certain restrictions held by governmental bodies from the so-called 'bring forward' filing requirements imposed under §§ 27-30 to retain enforceability of restrictions." Id. at 394.

Further, reading the statutory framework as a harmonious whole, the Court concluded that "c. 184, §§ 23 and 26 provide that (a) conservation, preservation, agricultural preservation, and affordable housing restrictions (whether held by a governmental body or a private party) are exempt from the thirty-year limitations imposed by § 23; exempt from the bring forward filing requirements of §§ 27-30; and entitled to the benefits, and subject to the procedural requirements, of § 32; and (b) other restrictions held by any governmental body are exempt from the bring forward filing requirements of §§ 27-30; not entitled to the benefits, or subject to the procedural requirements, of § 32; and subject to the thirty-year limitation imposed by § 23 (unless eligible for exemption on other grounds)." Murphy, 70 Mass. App. Ct. at 395-396. In other words, the Legislature intended that restrictions held by governmental bodies be treated as different animals from private deed restrictions. The Murphy court, then, advanced to determine whether the Planning Board of Hopkinton is a "governmental body" and answered this question in the affirmative. See id. at 396-397.

The clear import of subdivision conditions and covenants being exempt from G. L. c. 184, §§ 27-30 is that they are not private deed restrictions; they are not enforceable by private parties. There is a clear legislative trade off: when restrictions are "held by . . . governmental bod[ies]", they do not expire, but they cannot be enforced by private parties. Who then can enforce these restrictions imposed by a Planning Board via subdivision covenants?

B. Only Planning Boards Have the Right to Enforce Subdivision Conditions and Covenants.

Almost since the adoption of the Subdivision Control Law, private parties have asserted the right to enforce subdivision conditions and covenants. These assertions have consistently and uniformly been rejected by the courts of this Commonwealth. In Gordon v. Robinson Homes, Inc., 342 Mass. 529 (1961), the original applicant was required to procure a bond "to make certain improvements to land in accordance with definitive plans and specifications for a subdivision of land submitted to and approved by the planning board of said city." Id. at 530. "The bond, although running to the city, also provided that it was 'made for the use and benefit of all persons who may hereafter purchase lots upon any of said plans, and they and each of them are hereby made obligees hereunder, and they and/or each of them may proceed or sue hereon.'" Id. The original applicant failed to satisfy the terms and conditions of his approval and the plaintiff, "[r]elying on the bond," "purchased several lots in the subdivision." Id. (emphasis added).

The plaintiff sued to enforce the bond, and the Supreme Judicial Court rejected the claim that a private party has the right to enforce such a condition of a subdivision approval. See id. at 531-533. The court recognized that "there are no express provisions with respect to enforcement of the bond in § 81U". Id. at 531. However, "an examination of the statutory pattern shows that private enforcement of the bond by one in the position of the plaintiff is inconsistent with the general purpose of the law as well as with the powers given the planning board." Id. The court reasoned that

[t]he law is . . . designed primarily to benefit the inhabitants of cities and towns generally and those who purchase lots in developments only secondarily. By § 81U the planning boards were empowered to 'approve, modify and approve, or disapprove' plans, to require the construction of ways and the installation of municipal services, and to specify the time within which this work should be completed. Upon completion of this work, the boards were required to issue certificates of performance which may be recorded. This, we think, manifests a legislative intent that the planning boards were to have the primary responsibility for administering the subdivision control law and thus safeguard the declared paramount interests of the community as a whole.

Id. at 531-532 (emphasis added). "If the nonstatutory provisions permitting actions by the individual purchasers were enforced, [i.e., private parties were permitted, at common law, to enforce restrictive covenants held by planning boards] the statutory objectives, discussed above, would be thwarted." Id. at 533. Indeed, based on Gordon, supra, and the overall purpose of the Subdivision Control Law, the conditions and covenants, including as to security, imposed pursuant to G. L. c. 41, § 81U, are intended for "the protection of the public interest, and . . . do not confer private benefits." Marlborough Sav. Bank v. City of Marlborough, 45 Mass. App. Ct. 250, 253 (1998).

Based upon these binding authorities, the decision whether to enforce a condition of approval, granted under G. L. c. 41, § 81K, lies within the sole discretion of the local board, not with any private party, even a subsequent purchaser of the subdivision who may otherwise be subject to the approval's other conditions. See Fox Gate LLC v. Town of Millbury, 19 LCR 585, 591 (Dec. 1, 2011) (09 MISC 395474 & 09 MISC 402987) (Grossman, J.) aff'd at 83 Mass. App. Ct. 1124 (2013), quoting McGowan v. Sears, 3 LCR 24, 25 (Jan. 13, 1995) (Misc. Case No. 178398) (Scheier, J.) ("'G.L. c. 41, Sections 81K-81GG, gives planning boards the authority to impose conditions on the construction of subdivisions . . . The statute does not require that the town enforce such conditions, however'") (emphasis in Fox Gate, supra). In fact, a leading treatise on Massachusetts zoning and planning law states, as follows: a "planning board owes no duty to an individual to enforce subdivision conditions attached to the approval of a definitive plan." Bobrowski, Massachusetts Land Use and Planning Law § 15.06, at 543 n. 167 (3d ed. 2011), citing McGowan, supra.

Accordingly, covenants imposed by a planning board as part of a definitive subdivision are not a private deed restriction; and the sole discretion to enforce or not enforce the covenant lies with the Board. The decision from the Land Court, adopting this analysis, is reported at Withington et al. v. Grandy et al., 26 LCR 351 (July 18, 2018) (16 MISC 000536) (Lombardi, J.), in which Nicholas P. Shapiro, Esq., of our office successfully argued our client's cross motion for judgment on the pleadings. 

Written by Jeffrey T. Angley, Esq. on behalf of Jeffrey T. Angley, P.C

Copyright (c) 2011-2019 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for informational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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