Mass General Laws Chapter 184 sections 31 - 33
Section
31. Restrictions, defined
A conservation restriction
means a right, either in perpetuity or for a specified number of years, whether
or not stated in the form of a restriction, easement, covenant or condition, in
any deed, will or other instrument executed by or on behalf of the owner of the
land or in any order of taking, appropriate to retaining land or water areas
predominantly in their natural, scenic or open condition or in agricultural,
farming or forest use, to permit public recreational use, or to forbid or limit
any or all (a) construction or placing of buildings, roads, signs, billboards
or other advertising, utilities or other structures on or above the ground, (b)
dumping or placing of soil or other substance or material as landfill, or
dumping or placing of trash, waste or unsightly or offensive materials, (c)
removal or destruction of trees, shrubs or other vegetation, (d) excavation,
dredging or removal of loam, peat, gravel, soil, rock or other mineral
substance in such manner as to affect the surface, (e) surface use except for
agricultural, farming, forest or outdoor recreational purposes or purposes
permitting the land or water area to remain predominantly in its natural
condition, (f) activities detrimental to drainage, flood control, water
conservation, erosion control or soil conservation, or (g) other acts or uses
detrimental to such retention of land or water areas.
A preservation restriction means a right, whether or not stated
in the form of a restriction, easement, covenant or condition, in any deed,
will or other instrument executed by or on behalf of the owner of the land or
in any order of taking, appropriate to preservation of a structure or site
historically significant for its architecture, archeology or associations, to
forbid or limit any or all (a) alterations in exterior or interior features of
the structure, (b) changes in appearance or condition of the site, (c) uses not
historically appropriate, (d) field investigation, as defined in section
twenty-six A of chapter nine, without a permit as provided by section
twenty-seven C of said chapter, or (e) other acts or uses detrimental to
appropriate preservation of the structure or site.
An agricultural preservation restriction means a right, whether
or not stated in the form of a restriction, easement, covenant or condition, in
any deed, will or other instrument executed by or on behalf of the owner of the
land appropriate to retaining land or water areas predominately in their
agricultural farming or forest use, to forbid or limit any or all (a)
construction or placing of buildings except for those used for agricultural
purposes or for dwellings used for family living by the land owner, his
immediate family or employees; (b) excavation, dredging or removal of loam,
peat, gravel, soil, rock or other mineral substance in such a manner as to
adversely affect the land’s overall future agricultural potential; and (c)
other acts or uses detrimental to such retention of the land for agricultural
use. Such agricultural preservation restrictions shall be in perpetuity except
as released under the provisions of section thirty-two. All other customary
rights and privileges of ownership shall be retained by the owner including the
right to privacy and to carry out all regular farming practices.
A watershed preservation restriction means a right, whether or
not stated in the form of a restriction, easement, covenant or condition, in
any deed, will or other instrument executed by or on behalf of the owner of the
land appropriate to retaining land predominantly in such condition to protect
the water supply or potential water supply of the commonwealth, to forbid or
limit any or all (a) construction or placing of buildings; (b) excavation, dredging
or removal of loam, peat, gravel, soil, rock or other mineral substance except
as needed to maintain the land and (c) other acts or uses detrimental to such
watershed. Such watershed preservation restrictions shall be in perpetuity
except as released under the provisions of section thirty-two. All other
customary rights and privileges of ownership shall be retained by the owner,
including the right to privacy.
An affordable housing restriction means a right, either in
perpetuity or for a specified number of years, whether or not stated in the
form of a restriction, easement, covenant or condition in any deed, mortgage,
will, agreement, or other instrument executed by or on behalf of the owner of
the land appropriate to (a) limiting the use of all or part of the land to
occupancy by persons, or families of low or moderate income in either rental
housing or other housing or (b) restricting the resale price of all or part of
the property in order to assure its affordability by future low and moderate income
purchasers or (c) in any way limiting or restricting the use or enjoyment of
all or any portion of the land for the purpose of encouraging or assuring
creation or retention of rental and other housing for occupancy by low and
moderate income persons and families. Without in any way limiting the scope of
the foregoing definition, any restriction, easement, covenant or condition
placed in any deed, mortgage, will, agreement or other instrument pursuant to
the requirements of the Rental Housing Development Action Loan program or the
Housing Innovations Fund program established pursuant to section three of
chapter two hundred and twenty-six of the acts of nineteen hundred and
eighty-seven or pursuant to the requirements of any program established by the
Massachusetts housing partnership fund board established pursuant to chapter
four hundred and five of the acts of nineteen hundred and eighty-five,
including without limitation the Homeownership Opportunity Program, or pursuant
to the requirements of sections twenty-five to twenty-seven, inclusive, of
chapter twenty-three B, or pursuant to the requirements of any regulations or
guidelines promulgated pursuant to any of the foregoing, shall be deemed to be
an affordable housing restriction within the meaning of this paragraph.
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Section 32
Effect,
enforcement, acquisition, and release of restrictions
Section 32. No conservation
restriction, agricultural preservation or watershed preservation restriction as
defined in section thirty-one, held by any governmental body or by a charitable
corporation or trust whose purposes include conservation of land or water areas
or of a particular such area, and no preservation restriction, as defined in
said section thirty-one, held by any governmental body or by a charitable
corporation or trust whose purposes include preservation of buildings or sites
of historical significance or of a particular such building or site, and no
affordable housing restriction as defined in said section thirty-one, held by
any governmental body or by a charitable corporation or trust whose purposes
include creating or retaining or assisting in the creation or retention of
affordable rental or other housing for occupancy by persons or families of low
or moderate income shall be unenforceable on account of lack of privity of
estate or contract or lack of benefit to particular land or on account of the
benefit being assignable or being assigned to any other governmental body or to
any charitable corporation or trust with like purposes, or on account of the
governmental body the charitable corporation or trust having received the right
to enforce the restriction by assignment, provided (a) in case of a restriction
held by a city or town or a commission, authority or other instrumentality
thereof it is approved by the secretary of environmental affairs if a
conservation restriction, the commissioner of the metropolitan district
commission if a watershed preservation restriction, the commissioner of food
and agriculture if an agricultural preservation restriction, the Massachusetts
historical commission if a preservation restriction, or the director of housing
and community development if an affordable housing restriction, and (b) in case
of a restriction held by a charitable corporation or trust it is approved by
the mayor, or in cities having a city manager the city manager, and the city
council of the city, or selectmen or town meeting of the town, in which the
land is situated, and the secretary of environmental affairs if a conservation
restriction, the commissioner of the metropolitan district commission if a
watershed preservation restriction, the commissioner of food and agriculture if
an agricultural preservation restriction, the Massachusetts historical
commission if a preservation restriction, or the director of housing and
community development if an affordable housing restriction.
[Second paragraph applicable as provided by 2006, 205, Sec. 22.]
Such conservation, preservation, agricultural preservation,
watershed preservation and affordable housing restrictions are interests in
land and may be acquired by any governmental body or such charitable
corporation or trust which has power to acquire interest in the land, in the
same manner as it may acquire other interests in land. The restriction may be
enforced by injunction or other proceeding, and shall entitle representatives
of the holder to enter the land in a reasonable manner and at reasonable times
to assure compliance. If the court in any judicial enforcement proceeding, or
the decision maker in any arbitration or other alternative dispute resolution
enforcement proceeding, finds there has been a violation of the restriction or
of any other restriction described in clause (c) of section 26 then, in
addition to any other relief ordered, the petitioner bringing the action or
proceeding may be awarded reasonable attorneys’ fees and costs incurred in the
action proceeding. The restriction may be released, in whole or in part, by the
holder for consideration, if any, as the holder may determine, in the same
manner as the holder may dispose of land or other interests in land, but only
after a public hearing upon reasonable public notice, by the governmental body
holding the restriction or if held by a charitable corporation or trust, by the
mayor, or in cities having a city manager the city manager, the city council of
the city or the selectmen of the town, whose approval shall be required, and in
case of a restriction requiring approval by the secretary of environmental
affairs, the Massachusetts historical commission, the director of the division
of water supply protection of the department of conservation and recreation,
the commissioner of food and agriculture, or the director of housing and
community development, only with like approval of the release.
No restriction that has been purchased with state funds or which
has been granted in consideration of a loan or grant made with state funds
shall be released unless it is repurchased by the land owner at its then
current fair market value. Funds so received shall revert to the fund sources
from which the original purchase, loan, or grant was made, or, lacking such
source, shall be made available to acquire similar interests in other land.
Agricultural preservation restrictions shall be released by the holder only if
the land is no longer deemed suitable for agricultural or horticultural
purposes or unless two-thirds of both branches of the general court, by a vote
taken by yeas and nays, vote that the restrictions shall be released for the
public good. Watershed preservation restrictions shall be released by the
holder only if the land is deemed by the commissioner of the metropolitan
district commission and the secretary of environmental affairs to no longer be
of any importance to the water supply or potential water supply of the
commonwealth or unless two-thirds of both branches of the general court, by a
vote taken by yeas and nays, vote that the restrictions shall be released for
the public good.
Approvals of restrictions and releases shall be evidenced by
certificates of the secretary of environmental affairs or the chairman, clerk
or secretary of the Massachusetts historical commission, or the commissioner of
food and agriculture, or the director of housing and community development or
the city council, or selectmen of the town, as applicable duly recorded or
registered.
In determining whether the restriction or its continuance is in
the public interest, the governmental body acquiring, releasing or approving
shall take into consideration the public interest in such conservation,
preservation, watershed preservation, agricultural preservation or affordable
housing and any national, state, regional and local program in furtherance
thereof, and also any public state, regional or local comprehensive land use or
development plan affecting the land, and any known proposal by a governmental
body for use of the land.
This section shall not be construed to imply that any
restriction, easement, covenant or condition which does not have the benefit of
this section shall, on account of any provisions hereof, be unenforceable.
Nothing in this section or section thirty-one and section thirty-three shall
diminish the powers granted by any general or special law to acquire by
purchase, gift, eminent domain or otherwise to use land for public purposes.
Nothing in this section shall prohibit the department of public
utilities or the department of telecommunications and cable from authorizing
the taking of easements for the purpose of utility services provided that (a)
said department shall require the minimum practicable interference with farming
operations with respect to width of easement, pole locations and other
pertinent matters, (b) the applicant has received all necessary licenses,
permits, approvals and other authorizations from the appropriate state
agencies, (c) the applicant shall compensate the owner of the property in the
same manner and the same fair market value as if the land were not under
restriction.
Section 33
Public
restriction tract index
Section 33. Any city or town
may file with the register of deeds for the county or district in which it is
situated a map or set of maps of the city or town, to be known as the public
restriction tract index, on which may be indexed conservation, preservation,
agricultural preservation, watershed preservation and affordable housing
restrictions and restrictions held by any governmental body. Such indexing
shall indicate sufficiently for identification (a) the land subject to the
restriction, (b) the name of the holder of the restriction, and (c) the place
of record in the public records of the instrument imposing the restriction.
Maps used by assessors to identify parcels taxed, and approximate boundaries
without distances, shall be sufficient, and, where maps by parcels are not
available, addition to other maps of approximate boundaries of restricted land shall
be sufficient. If the names of the holders and the instrument references cannot
be conveniently shown directly on the maps, they may be indicated by
appropriate reference to accompanying lists. Such maps may also indicate
similarly, so far as practicable, (a) any order or license issued by a
governmental body entitled to be recorded or registered, (b) the approximate
boundaries of any historic or architectural control district established under
chapter forty C or any special act, ordinance or by-law where a certificate of
appropriateness may be required for exterior changes, (c) any landmark
certified by the Massachusetts historical commission pursuant to section
twenty-seven of chapter nine, (d) any other land which any governmental body
may own in fee, or in which it may hold any other interest, and (e) such
additional data as the filing governmental body may deem appropriate.
Whenever any instrument of acquisition of a restriction or order
or other appropriate evidence entitled to be indexed in a public restriction
tract index is at the option of the holder of the right to enforce it submitted
for such indexing, the register shall make, or require the holder of the right
to enforce the restriction or order or interest to make, appropriate additions
to the tract index.
The maps shall be in such form that they can be readily added
to, changed, and reproduced, and shall be a public record, appropriately
available for public inspection. If any governmental body, other than a city or
town in which the land affected lies, holds a right to enforce a restriction or
order or an interest entitled to be indexed in a public restriction tract index
for any city or town which has not filed such an index, or if the secretary of
environmental affairs or the Massachusetts historical commission or the
commissioner of food and agriculture or the director of housing and community
development approves a conservation or preservation restriction or agricultural
or watershed preservation restriction or affordable housing restriction held by
a charitable corporation or trust so entitled, and the city or town does not
within one year after written request to the mayor or selectmen file a
sufficient map or set of maps for the purpose, the holding governmental body or
approving secretary, director or commission may do so.
The registers of deeds, or a majority of them, may from time to
time make and amend rules and regulations for administration of public
restriction tract indexes, and the provisions of section thirteen A of chapter
thirty-six shall not apply thereto. No such rule, regulation or any amendment
thereof shall take effect until after it has been approved by the attorney
general. New tract indexes may be filed, from time to time, upon compliance
with such rules and regulations as may be necessary to assure against omission
of prior additions and references still effective.
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