Pierce Atwood commercial real estate and litigation partner Donald R. Pinto, Jr., representing the developer in Symes Development & Permitting, LLC v. Town of Concord, successfully argued that the Town of Concord’s Planning Board unlawfully required Symes to reserve five building lots without compensation for three years as a condition of a permit, as part of its approval of an 18-lot subdivision plan. Two of the lots were to be reserved for potential future use as a public park, and the other three lots as potential affordable housing sites. The town moved to dismiss the case, and in a recent decision, U.S. District Court Judge Nathaniel Gorton denied the town's motion, allowing the case to proceed.
The developer was prohibited from erecting buildings or doing any other work while the town decided whether to purchase the lots. The town argued that this restriction was valid because the prohibition was temporary, and that after three years it would pay the developer fair market value for the lots or allow them to be developed.
And while the Commonwealth’s subdivision control law “explicitly authorizes local boards to require developers to set aside lots for park purposes, it does not preclude a finding that such a requirement is an unlawful exaction.” Don specifically noted that the town provided no compensation for the three years in which the town deprived the developer of the use of the land.
Judge Gorton found that courts have repeatedly rejected the argument that government action must be permanent to qualify as a taking.
According to Don, “The Planning Board’s actions in Symes are an extreme example of the tendency of local boards to aggressively use the leverage they have in granting land use permits to extract concessions.”
Don also noted that in previous Supreme Court decisions, not all land-use exactions are prohibited, “but they require that the concessions imposed on developers have a nexus to the proposed project and be proportional to their impact.” Although the town’s bylaws do not require the Planning Board to make any findings in that regard, the absence of such findings “made it easier for Judge Gorton to find that the developer’s claim was not subject to dismissal,” Pinto surmised.
The complete article by Kris Olson appears in the January 24, 2022 edition of Massachusetts Lawyers Weekly.