Killorin v Zoning Board of Appeals of Andover

Mass. Appeals Court, No. 10-P-1665, October 14, 2011: Holds the enforceability beyond 30 years of land use restrictions set by a government agency, such as incident to the grant of a zoning special permit, is not limited by state statute that limits enforceability of restrictions on their face unlimited as to time.

The Massachusetts statute, M. G.L. c. 184, § 23, says “conditions or restrictions, unlimited as to time, by which the title or use of real property is affected, shall be limited to the term of thirty years after the date of the deed or other instrument or the date of the probate of the will creating them,” with exceptions not directly relevant here (this statute called here, but not otherwise known as, the “Unlimited Time Restriction Law”). This limitation does not apply to historic preservation easements and conservation easements created under a different Mass. Statute (c. 184, §32), which are enforceable in perpetuity.

The Killorin property was granted a zoning special permit in 1940 to allow an apartment building, subject to the condition that while the apartment building exists, the lot it is on must not be subdivided and may contain no building other than the apartment building and an eight-stall garage. Killorin’s attempt to have the special permit amended to remove the restriction was denied by the town. Killorin appealed the denial. The Court said their argument was really that the permit condition is no longer enforceable under the Unlimited Time Restriction Law (184/23) and held that statute inapplicable to the restriction in the special permit.

The Court’s reasoning was several-fold. First, the restriction was in the land records because it appears in the recorded zoning decision, not in a separate instrument. The Court said, “the statutory language … strongly implies that the restrictions controlled by the statute [the Unlimited Time Restriction Law] are those created by deed, will, or other instrument” and not a decision by zoning board is not one of those “other instruments”. The Court distinguished cases “where the restrictions held by a public body were part of an agreement between parties, one of whom was the government, and not restrictions imposed by a zoning board of appeals as a condition to granting a special permit,” that is, in which the restriction is imposed by a recorded instrument other than the government permit. Second, but related, was reasoning that the government permit is presumed to be in the public interest and therefore, like a condominium declaration’s restrictions (to which 184/23 has been held not to apply), more akin to municipal by-laws more than private deed restrictions. Third, the Court seems to say that because the incident litigation was about enforcing the zoning laws and not directly about clarifying “title or interest in the real estate in question” or to establish a lien, it would not be appropriate to apply a statute controlling restrictions “by which the title or use of real property is affected”.  Lastly, the Court said that allowing Killorin to have the benefit of the permit without the burden of the restriction would be an “anomalous and unjust” result.

Decision available at http://www.socialaw.com/slip.htm?cid=20983&sid=119.

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