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Massachusetts Property Owners Seek Approval of Plan Through Adequacy Regulations

In order to make certain improvements to your property, you may need approval from a local planning board.  If the process does not end in a favorable decision, you can appeal.  A February, 1, 2018 real estate case before the Land Court arose out of the plaintiffs’ efforts to develop their Massachusetts property.  They had applied to the town’s planning board, seeking approval of an improvement plan.  When the board denied their application, the plaintiffs appealed.  The case was eventually remanded back to the Land Court by the Massachusetts Court of Appeals, which reversed the ruling as to one of the plaintiffs’ claims.  Consequently, the matter was before the Land Court for a second time.

In the case, the only remaining issue to be resolved was the plaintiffs’ certiorari action. Certiorari is available if the proceeding is judicial or quasi-judicial, there are no other reasonably adequate remedies, and a substantial injury or injustice arose from the proceeding under review.  For the Land Court, the matter for review was the planning board’s decision.  The question for the court was whether or not there were grounds that a reasonable person would find proper to support the board’s decision.

The plaintiffs in the case sought approval of a plan that would allow their property to have adequate frontage on a certain way.  The application was submitted through the adequate access review process, which is used so that a way or street can be improved, without having to obtain definitive subdivision approval.  The limited circumstances in which these regulations may be applied require the way to meet the definition of a street under the by-laws, and the lot that has frontage on the way must have been in existence before subdivision control was adopted.  The plaintiffs were therefore required to demonstrate that both the way and the lot met the requirements provided.

The Land Court reviewed the plaintiffs’ application and the materials supporting it. The court noted that there was insufficient documentation to show that the way at issue qualified as one in existence prior to 1955, when the subdivision was adopted.  The court further found that the lots bordering the way were created long after the 1955 date on which the subdivision control law was adopted.  As a result, the court concluded that the plaintiffs failed to provide sufficient evidence to demonstrate that the roadway and the lots fronting it met the eligibility requirements needed for approval of an improvement plan under the adequacy regulations.  The board’s decision denying the plaintiffs’ application was therefore upheld.

The Massachusetts property law attorneys at Pulgini & Norton can provide creative solutions to address any residential real estate issue you may have.  We handle home purchase and sale agreements, financing, permit applications, and more.  Schedule a personalized consultation with one of our experienced lawyers by calling our office at (781) 843-2200 or submitting the contact form on our website.

More Blog Posts:

Massachusetts Homeowner Brings Action Against Neighbor to Enforce Zoning Law, Massachusetts Real Estate Lawyer Blog, published August 21, 2017

Deed Provision Compels Massachusetts Landowners to Re-Convey Subdivision Lot to Developer, Massachusetts Real Estate Lawyer Blog, published February 1, 2017

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