Q. An existing townhouse condominium complex’s design components were approved by a local zoning board specifically built in a planned-unit development. Some conditions apply to preserving tree groves, the architectural and landscape integrity, the planting and maintenance of native species, preserving vegetation to avoid soil erosion and maintaining visually appealing shrub edging around curbs and road corners for owners’ privacy, including greenery shrub beds to screen views from parking lots, as well as keeping original unit number signs and wood privacy fences as designed. 

What conditions, if any,  must be followed or remain? Does the association or property management need to continue to comply with the terms, and does a material design alteration require a modification permit?  

                                —Seeking Change

A. “In my practice, I have the opportunity to represent developers through the acquisition, permitting (including ZBA and site plan approval), condominium creation, and eventual sell-out of condominium developments, and this question often comes up,” says Cameron Merrill, Partner at Merrill & McGeary, Attorneys at Law in Boston and Marblehead, Massachusetts.

“Generally, the conditions imposed as part of a zoning, site plan or PUD approval remain applicable unless they have been lawfully modified, superseded, or expired by their terms. These conditions can include requirements governing landscaping, tree preservation, screening, fencing, signage, and other site or architectural features.

“More often than not, the Site Plan Approval and/or Variance decision recorded at the Registry of Deeds will contain a condition requiring the condominium’s governing documents to incorporate provisions requiring adherence to the approved site plan and establishing certain maintenance obligations. These often include specific requirements concerning landscaping, stormwater management, erosion control, and preservation of vegetation. Even if the condominium’s documents inadvertently fail to incorporate these obligations, the recorded zoning conditions nevertheless remain binding on the property and enforceable against the condominium association and unit owners.

“After the transition from developer to a unit owner board of trustees, the trustees and their property manager should familiarize themselves with the original zoning/PUD decision, approved plans, and conditions of approval. Before making changes to an approved site or design component, the local planning or permitting authority should be consulted. Most alterations require approval or modification of the original plan. In some cases, the municipality may determine that a proposed change is insignificant and can be approved administratively without a public hearing, but it is generally best to confirm this before proceeding.”

“In short, the fact that a condominium has been established does not, by itself, eliminate the conditions imposed as part of the original zoning or PUD approval. Condominiums should exercise caution before altering features that were part of the approved development plan.”