The Appeals Court had a momentous decision to make in Killorin v. Board of Appeals of Andover – a decision that would mark the difference between entropy and order. Imagine a world in which every condition in every special permit, variance, subdivision approval, site plan approval, wetlands permit, and other discretionary approval affecting the use of real property ceased to exist after 30 years. That’s the world that the plaintiffs in Killorin wanted to create. Fortunately, in its decision (pdf) last week, the Appeals Court stayed the hand that sought to unleash this chaos.
The plaintiffs in Killorin owned property in Andover that benefited from a 1940 special permit that allowed the use of an 1891 mansion as an eight-unit apartment building in a district zoned for single-family housing. A condition of that special permit prevented subdivision of the lot for “so long as said apartment house shall be maintained on said lot.” In 2007 and 2008, the plaintiffs applied to the Andover Board of Appeals to modify the special permit by deleting this condition. The board denied those applications, and the plaintiffs appealed to court from the second denial. As grounds for their appeal, the plaintiffs argued that the special permit condition was subject to M.G.L. c. 184, § 23, which states, “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 . . .” (emphasis added). The trial court flatly rejected the plaintiffs’ argument, noting that § 23 excepts from the 30-year limitation period restrictions defined in § 31 as being “in any deed, will or other instrument executed by or on behalf of the owner of the land or in any order of taking.” The emphasized language in § 31 clarifies the meaning of “instrument” in § 23. The plaintiffs took a further appeal to the Appeals Court, where their argument again went nowhere. Affirming the trial court, the Appeals Court construed “instrument” as used in §§ 23 and 31 to refer to “instruments of conveyance of real property” — not permit decisions arising out of municipal land use regulations.
Whether the Appeals Court realized the far-reaching consequences of this case, or simply focused on the statutory language, its decision is sound. But it does highlight the power that a permitting board has over land. The board can do what a landowner cannot: create restrictions that theoretically last forever. Now that the Appeals Court has reminded us of the permanence of permit conditions, anyone who receives a permit with a restrictive condition should think twice about whether that condition is a proper exercise of municipal authority, or whether an appeal should be taken in an effort to modify or strike a condition that will otherwise burden the land for time immemorial.