JOSEPH CHIRA & another vs. PLANNING BOARD OF TISBURY & others (and six companion cases).

ARMSTRONG, J. These seven bills in equity arose from a series of controversies concerning the proposed subdivision of a 107-acre tract of land in Tisbury. Three of them [Note 1] were brought by the owners of the locus (applicants) under G. L. c. 41, Section 81BB (as appearing in St. 1957, c. 199, Section 2), for the purpose of challenging the actions taken by the Planning Board of Tisbury (planning board) on October 24 (Superior Court No. 1559), November 7 (No. 1560) and November 28 (No. 1562) of 1973 upon alternative subdivision plans submitted by the applicants for approval. In the remaining four bills, brought pursuant to G. L. c. 40A, Section 21 (as amended through St. 1972, c. 334), certain abutters seek to overturn a decision of the Board of Appeals of Tisbury (board of appeals) dated June 29, 1973, as revised on July 9 of that year, to grant the applicants a special permit to create a so-called cluster development of the locus (Nos. 1547 [Note 2] and 1548 [Note 3]), a decision of the board of appeals of October 4, 1973, to grant a second cluster-development permit (Nos. 1557 [Note 4] and 1558 [Note 5]), and a decision of the same board on the latter date to grant a special permit for the stabling of horses on the locus (No. 1557). A judge of the Superior Court entered decrees whereby (a) the cases

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against the planning board were remanded for further proceedings in accordance with certain rulings of law and (b) the decisions of the board of appeals, subject to a modification to be described hereafter, were upheld. The planning board appeals from the decrees entered in the cases against it, and abutters, some of whom intervened as parties defendant in those cases, appeal from the decrees in all seven cases.

THE PLANNING BOARD CASES

1. The decrees appealed from in the three cases against the planning board ordered those cases remanded to the planning board for further consideration. For the reasons stated in Roberts-Haverhill Associates v. City Council of Haverhill, 2 Mass. App. Ct. 715, 719-720 (1974), those decrees are interlocutory, rather than final, and the appeals therefrom must be dismissed. Giacobbe v. First Coolidge Corp. 367 Mass. 309, 312-313 (1975). Foreign Auto Import, Inc. v. Renault Northeast, Inc. 367 Mass. 464, 466-471 (1975). "However, since the appellants' procedural error may have been caused in part by confusion regarding the changes in practice occasioned by the transition to the new laws and rules on July 1, 1974, and in view of the fact that the briefs on both sides argue the merits of the appeal[s]" (Id. at 471) and because resolution at this time of the issues presented by the appeals will simplify the complex litigation concerning the locus and expedite future proceedings, we proceed to consider the issues raised by the appeals.

2. The principal issue in the cases against the planning board arises from an amendment to the town's zoning by-law during the pendency of the proceedings on the subdivision plans submitted by the applicants. Before its amendment the by-law permitted lots of 25,000 square feet in the zoning district in which the locus is situated. The amendment prescribed a minimum lot size of 50,000 square feet. The applicants' subdivision plans were in compliance with the 25,000 square-foot provision of the unamended by-law

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but not with the 50,000 square-foot minimum under the amended version of the by-law.

The relevant sequence of events, all of which occurred in 1973, was as follows. The applicants filed a preliminary plan whereby the locus was to be subdivided in a conventional fashion (the grid plan) on February 12 and a revised preliminary plan of the same type on March 12. On April 2 the amendment to the zoning by-law was adopted by the town meeting and was thereafter duly submitted to the Attorney General for approval in accordance with G. L. c. 40, Section 32. On May 11 the applicants filed a different preliminary plan, this one calling for the subdivision of the locus as a "cluster development", defined by the applicable by-law as "a division of land into lots used or available for use as building sites where said lots are clustered together into one or more groups separated from adjacent property and other groups of lots by intervening common land" (the cluster plan). The applicants filed their definitive grid plan on August 27 and their definitive cluster plan on September 13. Meanwhile, the Attorney General approved the amendment to the zoning by-law on August 7 and it was last published, as required by G. L. c. 40, Section 32, on August 28. On October 24 the planning board approved the definitive grid plan, but purported to make its approval subject to the condition that a "court of competent jurisdiction determine that the subdivision does not violate the density [i.e., lot-size] requirements of the Tisbury Zoning By-Laws applicable thereto." On November 7 the planning board disapproved the definitive cluster plan by reason of its belief "that the plan is not in conformity with density requirements of the zoning by-law approved by the Town of Tisbury on April 2, 1973." On November 28 the planning board voted to rescind its approval of the definitive grid plan and to disapprove that plan for several reasons, including the one given for its disapproval of the cluster plan.

The trial judge ruled that both the grid and cluster plans were governed by the zoning by-law as in effect before its 1973 amendment, and hence that the planning board had exceeded its authority in disapproving the plans on the

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strength of the increased lot-size minimum contained in the amended by-law. [Note 6] He was correct in so ruling.

Under G. L. c. 40A, Section 7A (as amended through St. 1965, c. 366, Section 1), both definitive plans are "governed by applicable provisions of the zoning . . . by-law in effect at the time of submission . . . [of the respective preliminary plans] while such . . . plans are being processed" [emphasis supplied], subject to certain conditions not here material. Under G. L. c. 40, Section 32, the amended by-law did not take effect until its approval by the Attorney General and publication in August, 1973. Doliner v. Planning Bd. of Millis, 343 Mass. 1, 6 (1961). That was well after the applicants' preliminary grid and cluster plans had been filed. The unamended by-law was therefore the one "in effect" for purposes of Section 7A at the time the preliminary plans were filed and the one to which the definitive plans were subject.

The contrary result in Doliner v. Planning Bd. of Millis, supra, upon which the appellants place their primary reliance, was reached on the basis of an earlier and materially different version of Section 7A. See Id. at 7-8. The subsequent changes in Section 7A effected by St. 1959, c. 221, and St. 1961, c. 435, Section 2, which are fully discussed in Doliner v. Planning Bd. of Millis, 349 Mass. 691, 695-698 (1965), make it clear, we think, that the by-law amendment relied upon by the planning board was not applicable to either of the definitive plans before it.

3. The planning board's purported rescission of its approval of the grid plan and its disapproval thereof in November, 1973, were based on the further ground that the applicants had failed to comply with certain of the rules and regulations adopted by the planning board under G. L. c. 41, Section 81Q. The judge found that most of the applicants' supposed violations of those rules and regulations had no

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basis in fact, and that finding is not contested by the appellants. In addition, however, the judge ruled that two provisions of the rules and regulations which the planning board appears to have relied upon were invalid, and the appellants argue that that ruling was erroneous.

The first of the provisions at issue, which appears under the heading "Streets" and the subheading "Location and Alignment", reads: "Due consideration shall also be given by the subdivider to the attractiveness of the street layout in order to obtain the maximum livability and amenity of the subdivision." The other one, captioned "Protection of Natural Features", states: "Due regard shall be shown for all natural features, such as large trees, water courses, scenic points, historic spots, and similar community assets, which, if preserved, will add attractiveness and value to the subdivision." The judge concluded that the planning board was without statutory power to adopt such regulations.

We need not decide whether regulations dealing with aesthetic considerations and environmental protection are permissible under the Subdivision Control Law, as we are of the opinion that the provisions quoted above are not drafted in such a way as to be enforceable. Whether a proposed subdivision meets such standards as "attractiveness of the street layout" and "maximum livability and amenity", and whether the preservation of a particular natural feature "will add attractiveness and value to the subdivision", and what constitutes "[d]ue consideration" and "[d]ue regard", are essentially matters of opinion -- presumably the collective opinion of the members of the planning board at the time a particular plan is being evaluated. Assuming the possibility of setting forth clear and objective standards as to how such an opinion is to be arrived at, we perceive no attempt to formulate such standards here. The regulations in question therefore fail to fulfill the requirement of apprising owners "in advance what is or may be required of them and what standards and procedures will be applied to them." Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 334 (1962). See also

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Pieper v. Planning Bd. of Southborough, 340 Mass. 157, 163-164 (1959).

4. A further argument advanced by the appellants -- that the grid plan was properly rejected because the applicants never intended to implement it -- is without merit. Even if a finding of such lack of intention were justified (and we do not say that it is), that would be no ground for disapproving the plan. Our attention is directed to nothing in the Subdivision Control Law preventing an owner from engaging in the fruitless exercise of filing subdivision plans which he intends never to utilize.

THE BOARD OF APPEALS CASES

1. The appellants' attack on the decisions of the board of appeals to grant the applicants special permits to create a cluster development on the locus (such a permit being a condition precedent to the approval of a subdivision plan involving such a development under the applicable by-law) rests largely on the contention that the lot-size requirement of the amended zoning by-law was controlling. That contention has been rejected above, and it is clear that the protection afforded by Section 7A extends to proceedings before the board of appeals as well as those before the planning board. See Nyquist v. Board of Appeals of Acton, 359 Mass. 462, 465-466 (1971); Green v. Board of Appeal of Norwood, 2 Mass. App. Ct. 393, 396-397 (1974).

2. The appellants also assert error in the form of the decrees entered in the cases against the board of appeals. The judge, having ruled that the board of appeals exceeded its authority insofar as it allowed attached (as well as detached) building on the locus, [Note 7] entered decrees modifying the special permits accordingly. The appellants contend that the judge thereby usurped the statutory powers of the board of appeals in the issuance of special permits, and

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that the law required him instead to annul the decisions and remand the cases to the board of appeals for further proceedings. We disagree. Where, as here, a board has granted a permit in a form that is overbroad, and it is clear from the record that exactly the same ultimate result would occur from a remand as that effected by the decree, [Note 8] no useful purpose would be served by a remand. See Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 559 (1954). Tambone v. Board of Appeals of Stoneham, 348 Mass. 359, 364 (1965). We are of the opinion that in the circumstances of these cases the judge acted within his power under G. L. c. 40A, Section 21, to "make such other decree as justice and equity may require."

3. Other arguments directed at the decision of October 4, 1973, to grant the cluster-development permit are not considered, as they are outside the scope of a stipulation as to the issues made by the parties at the trial, on the basis of which the case was tried to its conclusion. Burwick v. Zoning Bd. of Appeals of Worcester, 1 Mass. App. Ct. 739, 745-746 (1974).

4. The appellants' remaining contentions relate exclusively to the board of appeals' decision of June 29, 1973,as revised on July 7 of that year. Both the applicants and the board of appeals concede that a decision upholding the special permits granted on October 4, 1973, will render the earlier special permits unnecessary. For that reason those permits will be annulled, and the issues peculiar to them need not be discussed. Compare McLaughlin v. Board of Appeals of Harwich, 359 Mass. 416, 419 (1971).

5. No argument having been made as to the propriety of the decision of October 4, 1973, whereby a stable permit was to be issued to the applicants, or the propriety of the decree with regard to that decision, all issues relative thereto are deemed waived. Mass. R.A.P. 16(a) (4), as amended, 367 Mass. 919 (1975).

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DISPOSITION

The decrees in Nos. 1557 and 1558 are affirmed. The decrees in Nos. 1547 and 1548 are reversed, not on the merits, but on the ground of mootness, and judgments annulling the special permits appealed from in those cases are to be entered. The appeals in Nos. 1559, 1560 and 1562 are dismissed. So ordered.