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Subdivision Plan: Ownership of Land

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The subdivision control law, G.L.c. 41, §81L, defines an applicant who submits a subdivision plan as “an owner” of the property being subdivided, but this has been interpreted to mean all the owners. In Kuklinska v. Planning Board of Wakefield, 357 Mass. 123 (1970) the court said that where part of the land shown on a subdivision plan was owned by someone other than the applicant, the planning board =s approval of the plan ought to be annulled and rescinded, where the local regulations of that board followed the statutory definition.

This “all ownership” rule raises an issue not only when the applicant does not own all the property shown on the subdivision plan but also when the access to the subdivided property is by way of an easement over another's person's land. Where the access route is included within the subdivided property shown on the plan, and therefore the fee title to that land is vested in another, the “all ownership” rule is broken, and denial of approval of the plan is warranted. This was the situation inSilva v. Planning Board of Somerset, 34 Mass.App.Ct. (1993) where a subdivision approval was being challenged by a party who claimed that the subdivision should not have been granted because he owned a portion of the street included within the subdivision by reason of being an abutter to that street. (See G.L.c. 183, §58.) The lower court had ruled that the abutter =s interest in the street did not prevent the approval of the subdivision plan. The Appeals Court reversed (essentially holding that the abutter =s interest was sufficient to derail the subdivision), but the court made this interesting comment in its decision:

Ownership of the street. Claiming ownership in part of the proposed street shown on the subdivision plan, the plaintiff contends that the board's approval of the subdivision was a nullity because he was not listed as a record owner of the premises on the plan and did not join in the application for approval of the subdivision. The board's regulations required the subdivider to be the owner or his agent (see Somerset planning board Rules and Regulations Governing the Subdivision of Land ' II A, definition of “subdivider” [1974]) and the plan to identify the record owners of the site ( Somerset planning board regulation §III B 2.b). Noncompliance with similar regulations has been determined to be a justification for invalidating a planning board's approval of a subdivision plan. Kuklinska v. Planning Bd. of Wakefield, 357 Mass. 123, 129 (1970). Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104, 106 107 (1991). A planning board may, however, waive strict compliance with its regulations, provided such waiver “is in the public interest and not inconsistent with the intent and purpose of the subdivision control law.” G. L. c. 41, ' 81R, as appearing in St. 1953, c. 674, n7. Hahn v. Planning Bd. of Stoughton, 24 Mass. App. Ct. 553, 556 (1987). In Batchelder, we held, however, that the planning board could not waive its regulation requiring the record owner to be the applicant for plan approval because the waiver would undermine a means of achieving a principal objective of the Subdivision Control Law -- securing from the owner of record a covenant in order to ensure installation of adequate municipal services.Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. at 108 109. However, in this case, unlike the Batchelder case, where the abutter challenged the applicant's title to the entire locus, the plaintiff claims an interest only in the proposed street. Even if the plaintiff owns a fee simple interest in the proposed street, at the very least the Cabrals as grantees of land abutting the proposed street would have an easement in the way and the right to make reasonable improvements in the way without the consent of the plaintiff. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 677 679 (1965). LeBlanc v. Board of Appeals of Danvers, 32 Mass. App. Ct. 760, 764 n.7 (1992). Whether in these circumstances the planning board could waive compliance with this regulation is an issue that we need not address, because there is nothing in the record which indicates that the planning board's approval of the plan was based on a conscious waiver of this regulation or upon its rejection of the plaintiffs claim of an ownership interest in the proposed street. See Meyer v. Planning Bd. of Westport, 29 Mass. App. Ct. 167, 169 172 (1990).

What the court is saying here is that where the developer “would have an easement in the way and the right to make reasonable improvements in the way without the consent of the [party owning the fee” he would have control over the road and the planning board could reasonably waive its regulation as to the “all ownership” rule in those limited circumstances. This does not mean that the planning board must approve the plan; it means that the planning board has the authority to waive the “all ownership” rule, if it is so inclined.