I just got back from a Planning Board meeting for an Easement Plan and I am discouraged. My client accidentally built a small part of his driveway on his neighbor's land. At first the neighbor wanted my client to cut his driveway. I had them compromise and made an easement plan. Now they are happy and friends again.
Anyway, the Planning Board did not want to sign the plan saying it does not create new lines. The plan was presented as Approval Not Required Under the Subdivision Control Law. An easement does create new lines, but it changes the owners' rights and since it it is not a subdivision they should have signed it.
Now I must wait another month to present the plan again or simply try to record it without the Planning Board signatures. Do they have any liability in signing a plan that does not require their approval? And if their approval is not required then what's the fuss?
Historic boundaries and conservation efforts.
In Oregon, planners have set themselves up as gods, but I've never had, nor asked, a planning department approve easements. The planners will require them on occasion as conditions of approval for new development but they do not sign them.
A planning board should have zero ability to deny the granting of an easement. One entity can grant another entity an easement as they choose. The planning board may have some ability to restrict or deny the grantee's enjoyment of the easement but not the granting of it.
I would think this a private agreement between two parties. Do not know your state law, but would appear that a sketch showing the proposed easement and a 'deed of easement' signed by both parties and recorded would be sufficient. Suggest your Client consult their attorney.
The plan is not creating new property lines and should not go before the Planning Board in MA. Easement plans get the 81X certification and can be recorded directly.
I can't speak for your local regulations, but it seems the Planners have given you a go to record it as is. Sounds like you've created a drawing along with an easement description. In my local county, I would create an Exhibit "A" with the description and reference an Exhibit "B" (the drawing) in the preamble as attached and file them together. This would need some title person to create the agreement, three pages. Then it's in the chain of title placed with the lot impacted by the easement. If it's recorded as an ROS then a document creating the easement with a reference to the ROS would do the same thing. Depends on your local recording process, everywhere seems to be slightly different.
The plan is not creating new property lines and should not go before the Planning Board in MA. Easement plans get the 81X certification and can be recorded directly.
Since not-my-real-name is practicing in MA, I'm wondering why he even bothered taking an Easement Plan to the Planning Board. Seems like a waste of time and money, unless your client was looking for the 3-year zoning freeze on change of use.
See pages 73-76 of "The ANR Handbook" for discussion about PB endorsement of perimeter plans.
I mailed the map today to the District Registry and went with the 81X certification (no new lines).
I won't be billing my client for my mistake in assumming Planning Board review.
However, if an easement is not a line, then what is it?
Historic boundaries and conservation efforts.
Many easements can not be depicted or defined by line work.
Anyway, the Planning Board did not want to sign the plan saying it does not create new lines.
However, if an easement is not a line, then what is it?
One should be looking at the specific meaning of the word "line" when used in this context. I'm looking at some documents on your MA Subdivision Control Law and whenever the word line is used it is always qualified - as property line, or lot line, or easement line, etc.
Anyway, the Planning Board did not want to sign the plan saying it does not create new lines.
However, if an easement is not a line, then what is it?
One should be looking at the specific meaning of the word "line" when used in this context. I'm looking at some documents on your MA Subdivision Control Law and whenever the word line is used it is always qualified - as property line, or lot line, or easement line, etc.
^^^ This exactly. The MA Subdivision Control Law, which established the requirement for Planning Boards to endorse non-subdivision land division plans is strictly concerned with lot boundaries, not easements.
Under the MA Subdivision Control Law, a subdivision is defined as requiring the construction of a new road and requires the approval of the Planning Board. The Planning Board's endorsement (signing) of an "Approval Not Required" plan is intended to notify the Registry of Deeds that even though the plan shows new parcel boundary lines, it did not not require the full approval process and may be recorded.
In my interpretation, there are two types of subdivisions.
The first is a subdivision of land into two or more lots, and requiring the construction of a road. The subdivision would be reviewed by the town or city Planning Board under the Subdivision Control Law.
The second, a division of land with adequate frontage, access, and meeting other zoning requirements is still a subdivision, but approval the Planning Board under the Subdivision control law is not required. The second type of subdivision is usually given the shorthand ANR for Approval Not Required.
Making a distinction between division and subdivision of land is purely semantic and would only serve to confuse the public in general. Members of the Board agree with me, however I am not likely to perform a survey for either definition. That is my choice, so I lack experience in that respect.
Historic boundaries and conservation efforts.