In its 2012 decision in Cater v. Bednarek, the Supreme Judicial Court (SJC) upheld a Land Court decision that the plaintiffs’ easement had not been extinguished by abandonment or estoppel, even though it had not been cleared or used since its creation in 1899.  However, the SJC remanded the case to the Land Court to consider whether it had been too restrictive in limiting the width and grade of the road that the Caters can create pursuant to their easement (see our post on the SJC’s decision here).  Earlier this year the Land Court weighed in on those remaining issues.

The Land Court’s decision after remand notes that:

[t]he remand was to have this court deal with the apparent problem with the judgment – that it limited the finished surface of the authorized roadway [that could be built in the easement] to no more than twelve feet, while the subdivision regulations placed the width minimum at fourteen feet and purported to make this width regulation one which could not be waived.

However, Judge Piper comments that he “may not have been as blissfully ignorant as the SJC’s opinion charitably suggests.”  Rather, he had previously concluded “as both a legal matter and a prudential one, the board might waive the width requirement to authorize a road meeting the twelve feet maximum imposed in the judgment.”  As Judge Piper notes, the discretionary “power to waive a subdivision rule exists as a matter of statutory mandate [under G.L. c. 41, 81R], and resides in a planning board as to all of the subdivsion rules, without limitation, provided the statutory prerequisites are met, including that the waiver is in the public interest and not inconsistent with governing statutes and local ordinances.” 

The remand decision further observes that waivers are upheld unless they substantially derogate from the intent and purpose of the subdivision control law, and that a planning board’s refusal to waive a subdivision rule itself can be an abuse of its discretion.

Judge Piper concludes (as he had earlier) that the “no waiver” language in the applicable subdivision rule was “merely precatory,” and did not prevent waiver of the width requirement: 

a planning board may not lawfully bulletproof its regulations by adopting one rule which makes some or all of the rest of them incapable of waiver, no matter the circumstances which later present themselves when a waiver is sought.

Following identical reasoning, the remand decision in essence requires the Caters to seek a waiver from planning board regulations governing the finished grade of a roadway.  Judge Piper stresses that he set these limitations on the roadway “to serve very compelling competing interests of the owners of the sensitive land over which the roadway is to pass.”  He does make clear that, if denied the necessary waivers, the Caters can return and “request that the court permit them a different configuration of the roadway, so as to vindicate their easement rights.”