Conditions are forever…..

I saw this article and thought I should pass it on.

Some Old Land Use Restrictions Don’t Die, Or Even Fade Away

Of course with a few comments.

The Samuelson v. Planning Bd. of Orleans case clearly establishes that a Planning Board’s conditions do not disappear over time, like private agreements. However, the case also establishes that the concept that “conditions are forever” may have its limits.

Often the Dennis Boards have discussed conditions and whether they could create conditions that tied the hands of future Boards. These discussions have always wound up at one place, that a current Board can establish conditions, but property owners can always petition the Board or a future Board to modify or remove those conditions.

The Samuelson decision clearly reinforces this particular provision, noting that the Kennedy’s could have petitioned the Planning Board to modify the original subdivision under Chapter 41 Section 81W. This specific request was not made, rather the applicant hung its hat on a concept that applies to private agreements that restrictive covenants lapsed after 30 years.

There is a side issue that this case leaves open, but references two cases to be followed, regarding the appropriate party or parties to petition for a modification.

The lesson is, conditions are forever, unless the Board that granted the permit and established the conditions, is 1) properly asked and 2) agrees to modify the conditions.


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