A Quid Without a Quo? Massachusetts Towns May Not Condition Subdivision Approvals On Unrelated Land Donations

Anyone who does development knows the subtle and not-so-subtle quid pro quos that are sometimes exacted by local planning boards. In Massachusetts, a decision issued on Tuesday by the Appeals Court has emphasized that there are limits to what planning boards may require in return for approval of subdivision plans. 

In Collings v. Planning Board of Stow, the developer was seeking to build a subdivision that included a 1,300 foot street ending in a cul-de-sac (known, with more directness, simply as dead-ends when I grew up in New Jersey). The Stow by-law limits cul-de-sacs to 500 feet, but provides that waivers can be granted. The Planning Board granted the requested waiver, but made it subject to a requirement that the developer devote at least 10% of the subdivision land to open space. Moreover, the Board required that the land be offered to the Town’s Conservation Commission or a land trust.

As plaintiffs noted, Massachusetts law prohibits, as a condition of approval of a subdivision, a requirement to dedicate land to the public use “without just compensation.” The Board ignored this provision. The Land Court actually did address it, but found that a quid pro quo is acceptable. In other words, dedication of land without just compensation is ok, so long as there is consideration, i.e., the developer got a waiver he was not otherwise entitled to obtain.

Not so, said the Appeals Court. To the appeals court, waivers may only be conditioned on requirements that go to the purpose behind the underlying requirement. The purpose of the limitation on cul-de-sacs is to address public safety concerns, particularly related to access for fire fighting vehicles. Thus, the Board requirement to install sprinklers in all of the subdivision houses was reasonable. The open space requirement, on the other hand, was “inconsistent with the intent and purpose of the subdivision control law.” 

The Court acknowledged the bargaining that takes place between developers and towns.

While it may be true that the subdivision control process … doubtless often involves negotiation between the developer and the town, the power of a planning board is limited to the authority “clearly and specifically given by the statute.”

The bottom line?

That waivers from some of the subdivision rules and regulations are required does not authorize a planning board to exact conditions expressly prohibited by § 81Q, and unrelated to the regulation sought to be waived….

Finally, the court emphasized that towns may not use these types of requirements to circumvent the eminent domain process, which is the constitutionally required means of taking private property:

We cannot resist the conclusion that, however worthy the objectives, the conditions imposed attempt to achieve a result which properly should be the subject of eminent domain.”

Will Collings prevent municipalities from overreaching in the future? Unlikely. Most developers know that they need to get along with planning boards. Nonetheless, it’s nice to know that there are some limits.

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