* Mark Bobrowski is a Professor of Law at the New England School of Law in Boston, Massachusetts, where he teaches Land Use, Property, Local Government, and Administrative Law. He has served as an adjunct professor at the law schools of Northeastern University and Boston College. He is the author of the Handbook of Massachusetts Land Use and Planning Law, published by Aspen and supplemented annually. Governor Romney appointed Mr. Bobrowski as a member of the Affordable Housing Task Force in 2003. The author wishes to thank New England School of Law students Megan Chuk, Kendra Stephenson, John Reuhrwein, along with Adam Costa, for their help in researching this Article.1 Anthony Flint, Open Space, Not Housing, Is Priority, Boston Globe, Feb. 16, 2003, 2003 WL 3380467; Kenneth Rapoza, Balancing Affordable Housing, Open Space, Boston Globe, Jan. 6, 2002, 2002 WL 4105230.
State funding for affordable housing slid by more than $20 million last year, with the budget crunch promising little if any relief. In fiscal 2002, the state spent $150 million on housing creation, far short of [former Cardinal Bernard] Laws proposal, and that spending slipped to just $120 million budgeted for the current fiscal year.Id. (emphasis added).
[A] residential development in which the buildings and accessory uses are clustered together into one or more groups separated from adjacent property and other groups within the development by intervening open land. A cluster development shall be permitted only on a plot of land of such minimum size as a zoning ordinance or by-law may specify which is divided into building lots with dimensional control, density and use restrictions of such building lots varying from those otherwise permitted by the ordinance or by-law and open land. Such open land when added to the building lots shall be at least equal in area to the land area required by the ordinance or by-law for the total number of units or buildings contemplated in the development. Such open land may be situated to promote and protect maximum solar access within the development. Such open land shall either be conveyed to the city or town and accepted by it for park or open space use, or be conveyed to a non-profit organization the principal purpose of which is the conservation of open space, or to be conveyed to a corporation or trust owned or to be owned by the owners of lots or residential units within the plot. If such a corporation or trust is utilized, ownership thereof shall be recorded providing that such land shall be kept in an open or natural state and not be built for residential use or developed for accessory uses such as parking or roadway.Id. See, e.g., New Seabury Corp. v. Bd. of Appeals, 550 N.E.2d 405, 40708 (Mass. App. Ct. 1990); DiPaolo v. Bradstreet Land Dev. Corp., 500 N.E.2d 1352, 1353 (Mass. App. Ct. 1986); Owens v. Bd. of Appeals, 418 N.E.2d 635, 63738 (Mass. App. Ct. 1981). This older variation of cluster does not authorize the trades discussed herein.