Massachusetts Appeals Court Invalidates Major Residential Development Special Permit Requirement in Westwood Bylaw as Inconsistent with Subdivision Control Law

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, 2008

The Massachusetts Appeals Court ruled that a local bylaw empowering a Planning Board to reject a subdivision plan otherwise acceptable under the Subdivision Control Law is invalid in Wall Street Development Corporation v. Planning Board of Westwood, 72 Mass. App. Ct. 844 (2008). 

The Westwood Zoning Bylaw included a provision requiring that proponents of a “Major Residential Development”—defined to include most subdivisions of four or more lots—secure a special permit from the Planning Board.  Applicants for such a special permit were required to submit both a “conventional plan” showing complete compliance with all applicable zoning and subdivision rules and regulations and an “alternative plan” that “differs substantially” from the conventional plan.  The suggested differences for the alternative plan included the number of lots created, road pattern, or open space configuration.  The Planning Board was authorized to approve whichever plan it found “best promotes the objectives” of the bylaw. 

The Appeals Court concluded that because the bylaw granted the Planning Board the authority to reject so-called conventional subdivision plans in total compliance with the applicable laws and regulations, it presented a facial conflict with the Subdivision Control Law and therefore was invalid.  The Subdivision Control Law provides that a subdivision plan conforming to the reasonable rules and regulations of a planning board and the board of health “shall receive the approval” of the planning board.  G.L. c. 41, § 81M.  The statute does not allow planning boards the authority to reject conforming plans.

Despite this finding, however, the developer did not ultimately prevail because the Appeals Court also found that the Planning Board was not presented with a subdivision plan conforming with all applicable rules and regulations.   

For further information, contact Brian C. Levey at blevey@bdlaw.com or Krista L. Hawley at khawley@bdlaw.com.