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.
As most Massachusetts residents and land use attorneys know, new residential construction is often met with a host of challenges and opposition. This is certainly the situation in many of the more desirable locations where developable land is seemingly at a premium, including, no less, Nantucket, where even a small ANR (Approval Not Required) project recently faced abutter opposition.