In its recent decision in Samuelson v. Planning Bd. of Orleans, the Appeals Court affirmed and expanded on its 2011 decision in Killorin v. Zoning Bd. of Appeals of Andover, which confined the reach of M.G.L. c. 184, § 23. That statute generally limits conditions or restrictions on the use of land to a term of 30 years. Thus, where the statute applies, the condition or restriction automatically expires – or “sunsets” – after 30 years, whether that limit appears in the document or not.

In Killorin, the Appeals Court held that this statutory sunset provision did not apply to a condition imposed by a zoning board of appeals in a special permit issued pursuant to M.G.L. c. 40A, § 9.  And now, in Samuelson, the court has extended Killorin to similarly preserve conditions that were imposed by a planning board in approving a subdivision plan.

Samuelson involved an application for subdivision approval by the owners of a lot that was itself created by a 1975 subdivision of a large oceanfront parcel into six lots.  The Town of Orleans planning board approved the 1975 subdivision subject to various express conditions, including a condition that any further subdivision would require upgrading a private access road and installing municipal water.  More than 30 years later, the owners of one of the six original lots applied to the planning board for approval to divide their lot in two. The planning board approved the application without requiring the owners to meet the 1975 conditions, agreeing with their argument that those conditions had expired in 2005, “by operation of G.L. c. 184, § 23 . . . .”

An abutter appealed to the Land Court, which reversed the planning board’s approval.  On the owners’ further appeal, the Appeals Court affirmed the Land Court’s ruling and expressly extended Killorin to conditions imposed by a planning board in the context of a subdivision approval.  It is now clear that such conditions are not subject to the 30-year limit contained in M.G.L. c. 184, § 23.

The Appeals Court, in interpreting the statute, has sharpened an important distinction:  land use restrictions that are “created by deed, other instrument, or a will” are subject to the statute and expire after 30 years, while “land use restrictions imposed as a condition to the discretionary grant of regulatory approval under the police power” are not subject to the statute and can remain in force indefinitely.  While the court sought to limit its holding to the facts of the case – i.e., to conditions imposed in a subdivision approval – the fundamental difference between, on the one hand, restrictions created by private parties in deeds, wills and other instruments, and, on the other hand, restrictions imposed by regulatory authorities in land use approvals, strongly suggests that the 30-year sunset provision in M.G.L. c. 184, § 23 is unlikely to apply to any type of land use condition or restriction imposed by a government body acting pursuant to its police powers.