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Planning Board pauses request to release subdivision covenant on 540 Carrot Shop Road
Summary
Property owners asked the Planning Board for a partial release of a 1999 subdivision covenant that clouds title to 540 Carrot Shop Road; staff and town counsel advised against releasing the covenant without completion of required work, and the applicant withdrew the request without prejudice while staff and counsel continue discussions.
Kevin Clauer, an attorney representing Helen and Ahmed Mustafa, asked the Town of Falmouth Planning Board to grant a partial release of a subdivision covenant that affects 540 Carrot Shop Road, saying the covenant leaves the property unable to convey clear title.
Clauer told the board the house at 540 Carrot Shop predated the 1999 subdivision, that a paper road called Elsie's Way was never built, and that the portion of land needed to construct the road is within a wetland buffer that the Conservation Commission (ConCom) now bars from development. “They are between a rock and a hard place here,” Clauer said, arguing that requiring construction of a road that cannot be built would be unfair to the current owners and prospective buyers.
Town counsel’s written advice and a board member reading that advice cautioned that releasing a covenant “partial or whole without completion of the work runs contrary to the statute and may very well subject the planning board to litigation,” a point the board repeatedly referenced during discussion. Board members and staff noted the covenant contains a three‑year provision allowing a grantee to void a deed conveyed in violation of the covenant if the road and services were not completed within the stated period; because the conveyance to the Mustafas occurred in 2003, that window had passed without action.
Jed, a planning staff member, told the board the wetland regulations have changed since the original approval and that ConCom would not permit the road to be constructed in the current buffer, leaving the board without authority to remedy the problem through local permitting. Board members discussed judicial remedies, including the prospect of a Land Court action to undo the subdivision, but also noted litigation would be costly and lengthy.
After discussion the applicant asked to withdraw the request without prejudice and asked the board to authorize dialogue between applicant counsel and Town Counsel (Attorney O’Keefe) to explore whether a nonlitigious resolution is possible. The board agreed to allow that exchange and to continue the matter; staff advised the applicant to submit an updated application when ready.
The board did not vote to release the covenant at the meeting and left the covenant in place pending further legal consultation and any court remedies the owners may pursue.
