NEW ENGLAND BIBLE CHURCH vs. MICHAEL HOUGHTON, CARL BYERS, DONALD ELLSWORTH, GEORGE S. MORAN and SUSAN G. STOTT, as they are members of the Planning Board of the Town of Andover.

The Andover Planning Board historically has approved what it calls "one lot subdivisions" subject to conditions designed to further the objectives envisioned by the General Court in the adoption of G.L. c. 41, §81K, et seq. As an example of this the Board approved, in 1975, a subdivision plan entitled "Subdivision & Acceptance Plan One-Lot Subdivision" dated October 17, 1975 by Robert G. Goodwin showing Lots 1 and 2, the former fronting on Chandler Road, a public way, and the latter containing approximately eleven acres but with most of its frontage on a so-called "Proposed 40' Way" off Chandler Road. The plan was approved subject to conditions which were duly recorded with Essex North District Registry of Deeds in Book 1275, Page 445. The instrument containing the conditions describes them as "a restriction" on land of the then owner as shown on the approved plan, and the four conditions for which provision is made therein are as follows:

1. That parcel 2 shall not be further subdivided.

2. That only one single residence dwelling with normal accessory buildings shall be erected on Parcel 2.

3. That the proposed road shall never become a public way.

4. The Planning Board waives compliance with its own Rules and Regulations and the "improvements" will not apply as far as the installation of the road and cul-de-sac.

It is only Condition No. 2, "[t]hat only one single residence dwelling with normal accessory buildings shall be erected on Parcel 2", which is at issue here.

The plaintiff, a church, recently acquired title to Lot 2 and seeks to erect a building thereon to be used for religious services, possibly to later include a school, a picnic area and playing fields. Initially, the plaintiff planned to construct a multi-purpose building to be adapted for church services among other activities, with the construction of a conventional church to follow. On January 25, 1988 the plaintiff filed an application with the Planning Board to remove Condition No. 2 of the "restriction" imposed by the approval of the 1975 subdivision. After several informal meetings and a public hearing on May 24, the Board unanimously denied the plaintiff's application to modify the 1975 subdivision approval. The plaintiff, therefore, appeals this most recent decision of the Planning Board, pursuant to §81BB of c. 41, and seeks a declaratory judgment from this Court as to the validity of the condition. The plaintiff does not challenge the other three conditions imposed by the Board.

G.L. c. 41, §81Q specifically provides that no rule or regulation of a planning board, except insofar as it may require compliance with the requirements of the existing zoning ordinances or by-laws, "shall relate to the size, shape, width, frontage or use of lots within a subdivision, or to the buildings which may be constructed thereon, . . ." (emphasis added). The section further provides as follows:

The rules and regulations may, however, provide that not more than one building designed or available for use for dwelling purposes shall be erected or placed or converted to use as such on any lot in a subdivision, or elsewhere in the city or town, without the consent of the planning board, and that such consent may be conditional upon the providing of adequate ways furnishing access to each site for such building, in the same manner as otherwise required for lots within a subdi'vision .

The Supreme Judicial Court made it clear in the case of McCarthy v. Board of Appeals of Ashland, 354 Mass. 660 , 663 (1968), that a planning board may not expressly limit the use of a subdivision lot to a single family dwelling when the applicable zoning by-law permits a multi-family dwelling. It is the language of the statute, it would appear, that is confusing, but as explained in the McCarthy case, the planning board may adopt a regulation that not more than one building designed or available for use for dwelling purposes may be erected on any lot or the board may limit the lots upon which buildings are to be erected and the number of buildings, but the planning board cannot forbid the use of a lot for purposes permitted by the zoning by-law. Id. at 662-663; Compare Ellen M. Gifford Sheltering Home Corp. v. Board of Appeals of Wayland, 349 Mass. 292 (1965) (upholding condition of a single dwelling).

The plaintiff has argued, and the defendant does not dispute, that a church is a permitted use in every zoning district in the Town of Andover, and indeed c. 40A, §3, makes it clear that no zoning by-law may prohibit, regulate or restrict the use of land or structures for religious purposes, although "such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and dwellings, yard sizes, lot area, setbacks, open space, parking and building coverage requirements." E.g., The Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19 (1979); Sisters of the Holy Cross v. Brookline, 347 Mass. 486 (1964). The Planning Board, therefore, was without power to prohibit the plaintiff's proposed use of Lot 2, and furthermore, if the same conditions were to be imposed today and timely appealed, there is no question that they would be impermissible. It is true that the Board might feel that considerations of public safety require the imposition of certain standards on the access road to be constructed which originally was merely to be a driveway for the single-family house proposed in 1975. The Board, however, was not then, and is not now, authorized to consider problems with the site which fall within the jurisdiction of the conservation commission or the board of health. The condition at issue was, nevertheless, imposed 13 years ago and the question, therefore, arises as to whether the plaintiff, as a subsequent holder, is bound by conditions impliedly accepted by its predecessor in title. The second question presented is whether, if one of the four conditions fails, the approval of the plan also fails. The initial inquiry is whether the plaintiff may raise the question today or whether it is forestalled by events of the past.

To address the last main problem first, Huntington v. Board of Appeals of Hadley, 12 Mass. App. Ct. 710 (1981) illustrates a similar situation involving a variance where a condition which came to be viewed as without statutory authority was imposed and the zoning board of appeals, as well as the Superior Court and the Appeals Court, again considered the matter. The present case is very similar to Huntington, and I rely on that decision in upholding the plaintiff's right to seek a modification of the approval from the Board. The principle that the successor in title is bound by the conditional approval accepted by some earlier owner of the property seems inequitable, at least in circumstances such as those now under review. The land owner in the present case was not a party to the negotiations which led to the so-called restrictions or to the imposition of them as a condition of the Board's approval. Accordingly, the plaintiff who wishes to use the premises for a permitted use should not now be barred from raising the question of the validity of the original condition which, while open to the previous owner to contest, did not bar but furthered her contemplated use of the locus for a single residence.

The final question for consideration concerns the statement made in Patelle v. Planning Board of Woburn, 6 Mass. App. Ct. 951 (1978) that "[i]t is clear that when a plan has been approved upon conditions, the failure of any of the conditions will result in an automatic rescission of the approval." (citations omitted). Circumstances where this principle has come into play are those where obligations are imposed upon the developer to meet certain time standards particularly as to road construction and utility installation and are breached by a failure of performance. I know of no case where it has been held that the imposition of an invalid condition by the Board and its annulment by a court results in the approval of the plan being lost. It is clear that the use to be made of the way by the plaintiff may be more intense than that by the owner of one, single family house, but the property is not proposed to be subdivided and the usual concerns of the Planning Board as to the most appropriate access to lots and the proper layout or construction of any subdivision ways are not involved in the proposed use by the Church any more than they would have been in the case of the individual owner.

I therefore find and rule that Condition No. 2 imposed by the Planning Board at the time of its approval of the plan was not in compliance with the provisions of G.L. c. 41, §81Q and that, therefore, the approval must be modified. Accordingly, it is

ADJUDGED and ORDERED that the condition set forth in the instrument dated January 19, 1976 and recorded with Essex North District Deeds Book 1275, Page 445, that only one single family residence dwelling with normal accessory buildings shall be erected on Parcel 2 as shown on a plan by Robert G. Goodwin recorded with said Deeds as Plan No. 7357, does not comply with the provisions of G.L. c. 41, §81Q and, therefore, the conditional subdivision approval of 1975 is hereby modified by striking therefrom Condition No. 2.

By the Court