THERON BATCHELDER & others vs. PLANNING BOARD OF YARMOUTH; PALMER DAVENPORT, trustee, intervener.

BROWN, J. This case arises out of an approval by the defendant, planning board of Yarmouth (board), of a defective subdivision plan submitted by the trustees of Davenport Realty Trust (trust) for a development which would adjoin the Blue Rock golf course in Yarmouth. The plaintiffs own property abutting the locus. We are asked to decide whether the trust's ownership interest in the locus was sufficient to obtain approval of its definitive subdivision plan, and if not, whether the board had the power to waive "the requirements of its regulations relative to the applications [for approval of a subdivision

Page 105

plan] and the presence at any hearing of the owner of record." We conclude that the trust lacked standing to apply for definitive plan approval and that the board's purported waiver of the so-called "owner of record" requirement was inconsistent with the intent and purpose of the Subdivision Control Law. See G. L. c. 41, Sections 81K et seq.

The pertinent facts giving rise to this dispute are as follows. In 1982, the trust filed a complaint in the Land Court to register a parcel of land in South Yarmouth consisting of 6.44 acres (the locus). [Note 1] The complaint was based solely on the trust's "claim of title to [the] locus . . . by adverse possession." The Land Court, as required by G. L. c. 185, Section 37, as appearing in St. 1981, c. 658, Section 19, referred the complaint for registration to one of its title examiners to "search the records and investigate all facts stated in the complaint or otherwise brought to his notice, and [to] file in the case a report thereon, concluding with a certificate of his opinion upon the title."

During the pendency of the registration proceeding, on July 14, 1986, the trust filed an application with the board for approval of a preliminary subdivision plan of the locus. This application identified the trust as the owner of record and was signed by one of its trustees, Dewitt Davenport, in the space reserved for "signature of owner of record." In the space requesting a deed reference for the property, the trust inserted a reference to a deed recorded in the Barnstable registry of deeds in book 4572, page 155, which covered real property in West Yarmouth more than one mile away from the locus and having no connection with the locus. The application for approval of the preliminary plan was subsequently denied by the board at a meeting held on September 4, 1986. [Note 2]

Page 106

By an application dated January 16, 1987, the trust filed a plan with the board seeking approval of a definitive plan. The application identified the owner of record as "John Doe, c/o Town of Yarmouth." The title reference provided in the application referred to the docket number assigned to the trust's land registration complaint. The definitive plan was subsequently approved by the board on May 20, 1987, and a certificate of approval was filed with the town clerk on June 1, 1987.

Subsequent to the board's approval of the definitive plan, the Land Court examiner concluded that the trust "did not have good record title to one hundred percent (100%) of [the] locus" as of the date either plan had been submitted. [Note 3] The trust thereafter voluntarily withdrew its land registration complaint to all but one-half acre of the locus.

On June 10, 1987, the plaintiffs commenced this action to annul the decision of the board approving the definitive plan, alleging that the board's actions were arbitrary and capricious, and in excess of its authority. The trust was allowed to intervene. On July 19, 1989, a judge of the Superior Court entered a judgment annulling the action of the board as having been in excess of its authority. This appeal from that judgment ensued pursuant to G. L. c. 41, Section 81BB.

The trial court's duties in hearing and deciding appeals under Section 81BB are to conduct a hearing de novo, find the relevant facts, and determine the validity of the planning board's decision. Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171, 173 (1977). This court will not upset the factual determinations of the lower court unless clearly erroneous.

1. It is settled that a planning board regulation requiring the applicant for definitive plan approval to be an "owner of record" is a reasonable regulation. Kuklinska v. Planning Board of Wakefield, 357 Mass. 123, 129 (1970). We think it important that the "owner" of a site be properly identified on

Page 107

a definitive plan to be recorded. In Kuklinska, the plaintiffs sought to overturn a definitive plan on the ground that the applicant did not own all the land included within the plan. Because the planning board regulation at issue in that case required that the "applicant must be the owner of all the land included in the proposed subdivision," the court held that the definitive plan did not conform to the regulation and was thus invalid. [Note 4] The opinion underscored the point that the regulation was consistent with G. L. c. 41, Section 81L, as amended by St. 1961, c. 331, which defines a subdivision applicant as an "owner or his agent". See also Hahn v. Planning Board of Stoughton, 24 Mass. App. Ct. 553, 556 (1987), where this court reiterated that G. L. c. 41, Section 81L, defines an applicant as an "owner or his agent," and upheld the validity of a planning board regulation requiring that the applicant must hold record title to the land shown on the plan.

Here, the regulations promulgated by the board relating to the requirements for obtaining plan approval are not dissimilar to those at issue in Kuklinska and Hahn. [Note 5] Therefore, the crucial issue is whether the trial judge erred in ruling that the mere filing of a complaint to register land, based solely upon a claim of title by adverse possession, is not sufficient to clothe the plaintiff with "owner of record" status (as required by the board's regulations, note 5, supra) for purposes of applying for subdivision approval.

Page 108

The defendant filed a complaint to register the property pursuant to G. L. c. 185. The effect of such a complaint, if allowed, is to vest title to the land in the petitioner, thereby making ownership certain and indefeasible. G. L. c. 185, Section 1(a). Deacy v. Berberian, 344 Mass. 321, 328 (1964). Contrary to the board's contention, however, the mere act of filing a complaint for registration does not, in itself, affect the state of title. See G. L. c. 185, Section 36. Here, the trust withdrew its registration complaint before the Land Court issued a final decree establishing title to the locus. Therefore, there was no sufficient basis upon which the trust could establish that it was the "record owner" of the locus at the time it submitted the preliminary and definitive plans. Accordingly, the trust had no standing to apply for subdivision approval as of the dates the plans were submitted. [Note 6]

2. The board argues that the trial judge erred as matter of law when it ruled that the board did not have the power to waive its regulation that the "owner of record" must sign its application forms and be present at the hearings. [Note 7] We disagree. While it is true that a planning board may, when appropriate, waive strict compliance with its rules and regulations, it may not do so unless such waiver "is in the public interest and not inconsistent with the intent and purpose of the subdivision control law." G. L. c 41, Section 81R, as appearing in St. 1953, c. 674, Section 7. See Wheatley v. Planning Bd. of Hingham, 7 Mass. App. Ct. 435, 440 (1979).

Chief among the policy concerns underlying the enactment of the Subdivision Control Law was to ensure the provision of "adequate drainage, sewerage, and water facilities, without harmful effect to adjoining land and to the lots in the

Page 109

subdivision." Meyer v. Planning Bd. of Westport, 29 Mass. App. Ct. 167, 170 (1990). See G. L. c. 41, Section 81M. One of the ways in which this objective is achieved by local planning boards is to secure a covenant from the "owner of record" which provides for the installation of adequate municipal services. G. L. c. 41, Section 81U. If the owners of record are not fully identified or if the planning board has been misled as to the record owners, the public would not be protected because the board would be unable to ensure that it would receive a properly executed covenant, or in the event of a modification or amendment of a plan approval, a properly executed consent. G. L. c. 41, Section 81W. See Stoner v. Planning Bd. of Agawam, 358 Mass. 709, 715 (1971). Therefore, a waiver, as here, of the board's regulations which require the record owner to be the applicant for plan approval, or at a minimum to participate in the application process by executing forms B and C and appearing at the hearing, would undermine one of the principal aims of the statute. Wheatley v. Planning Bd. of Hingham, supra.

Judgment affirmed.