THOMAS B. WHEATLEY & others vs. PLANNING BOARD OF HINGHAM & others. [Note 1]

KEVILLE, J. The plaintiffs, pursuant to G. L. c. 41, Section 81BB, appealed from a decision of the defendant planning board of Hingham (board) approving upon conditions a plan for the subdivision of an eighty-eight acre tract of land in Hingham (locus) submitted in 1973 by the defendant Hanian. [Note 2] The trial judge filed findings of fact pursuant to Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), and ordered that judgment enter stating that the board's decision was "not in excess of its authority and is affirmed." The plaintiffs appeal from the ensuing judgment. We reverse. The facts, as relevant, appear in the body of the opinion.

1. Waiver of the Board's Rules and Regulations.

In 1967 predecessors in title of Hanian, as trustee, submitted a plan for the subdivision of the locus which the board approved apparently subject to a condition that the improvements shown on the plan be completed within five years. In 1973, after the expiration of that five-year period and without the improvements having been completed, the board rescinded its approval of the plan. [Note 3] Hanian thereupon discussed with the board the possibility of resubmitting the same subdivision plan his predecessors in title had submitted in 1967. However, in the interim between the approval and rescission of the 1967 plan the board had adopted a new set of rules and regulations pursuant to G. L. c. 41, Section 81Q, and the 1967 plan did not meet various of the requirements contained in the new rules and regulations. At its May 14, 1973, meeting, the board agreed to waive, pursuant to G. L. c. 41, Section 81R, [Note 4] any procedural requirements which the 1967 plan did not

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meet; [Note 5] and on May 21 Hanian resubmitted two prints of the 1967 plan (each of which contained twenty-one sheets) together with a formal application for the plan's approval. In a covering letter Hanian's attorney conceded that the plan as submitted did not comply with seven separate provisions of the board's rules and regulations, [Note 6] and the parties further agree that in addition it did not comply with at least four other provisions of the rules and regulations. [Note 7]

The board accepted the plan as submitted, its minutes for its May 21 meeting stating "[e]verything appeared to be in order." The following June 18 the board held the public hearing on the plan required by G. L. c. 41, Section 81T. During the course of that hearing the chairman of the board observed, "[T]here were certain procedural steps, only procedural steps, that we waived. We did not waive, at least to the best of my knowledge and understanding, any of the requirements of the Subdivision Control Law except for certain procedural steps that had to do with the preparation of the plan." The board never specified exactly which provisions of its rules and regulations it had purported to waive.

As a result, at least with respect to those violations of the rules and regulations not mentioned in the letter of Hanian's attorney, we cannot be certain whether the board purported to waive the regulations violated or simply failed to recognize the violations. We need not, however,

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decide whether the board's haphazard procedure in waiving its regulations requires the annulment of its approval of the plan. [Note 8] Even assuming that the board intended to waive all the provisions of its rules and regulations with which the plan does not comply, those waivers were at least in part improper and require the annulment of the board's approval of the plan.

One of the provisions of the rules and regulations not mentioned in the letter of Hanian's attorney with which the parties agree the plan does not comply, was Section 3C, par. 2(k). That provision requires that subdivision plans show "[a]ll existing and proposed municipal services and their appurtenances"; Section 2A defines municipal services as "[s]ewers, surface and subsurface water drains, water pipes, fire hydrants, gas pipes, electric lines or ducts, telephone lines or ducts, fire alarm cables and boxes, street lights, and their respective appurtenances." A planning board has authority to make requirements for "the services that as a matter of course will be installed in the ways" even if furnished by a regulated utility rather

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than the developer or the municipality. Sansoucy v. Planning Bd. of Worcester, 355 Mass. 647 , 649 (1969). As approved by the board, the plan at best showed only surface and subsurface water drains. [Note 9]

The board, in arguing that its waiver of so much of Section 3C, par. 2(k), as was not complied with was "in the public interest and not inconsistent with the intent and purpose of the subdivision control law," relies on the board chairman's testimony to the effect that it is impracticable for the plans to show water pipes or electric ducts since ground conditions discovered in installing them may require that they be placed other than where they are shown on the plan. We assume that in such circumstances the board under Section 81R may waive a requirement that such services actually be shown on the plan. But the difficulty with what the board has done in the present case [Note 10] lies in the fact that, having waived the requirement that all municipal services be shown on the plan except with respect to the drainage system, the board failed to take sufficient steps to indicate what municipal services not shown on the plan the developers would be required to install. It did include in the letter accompanying its certificate of approval of the plan a condition that a "sanitary sewer system . . . be installed subject to the approval of the Sewer Commissioner" of Hingham, and we assume that its reference in that letter to electric power [Note 11] was sufficient to require the installation of that service. But the board in its certificate of approval and accompanying letter specified no other municipal services which Hanian would be required to install. Municipal services not

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mentioned included water pipes, fire hydrants, telephone lines or ducts, fire alarm cables and boxes, and street lights. That the board intended to require the installation of at least some of those services is suggested by its chairman's testimony concerning the water pipes as well as by the fact that its waiver of its rules and regulations was supposed to have no substantive effect.

Nevertheless, the result of the board's waiver of the requirement that the plan show all municipal services is that the covenant contained in par. (g) of Hanian's application for approval of the plan, [Note 12] by which the board as required by G. L. c. 41, Section 81U, sought to secure the installation of municipal services (see Stoneham v. Savelo, 341 Mass. 456 , 457, 458-459 [1960], and Costanza & Bertolino, Inc. v. Planning Bd. of No. Reading, 360 Mass. 677 , 679-681

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[1971]), does not oblige the developers to install any municipal services other than the drainage system, sewers, and possibly electricity. The phrase "therein required" in par. (g)(1) of Hanian's application clearly refers back to "said plan" and modifies not only "all other municipal services" but also "the drainage system, water pipes, gas pipes and electric lines." (See note 12, supra.) That is, the only municipal services Hanian has covenanted to install in par. (g)(1) are those shown on the plan or required by the certificate of approval and accompanying letter attached to the plan. The obligations undertaken by Hanian in pars. (g)(2)-(4) are only with respect to "said municipal services" referred to in par. (g)(1).

It is not clear whether the condition, set forth in the letter accompanying the board's certificate of approval, that the approval is "subject to a Covenant under . . . [G. L. c. 41, Section 81U] to be recorded herewith" requires the execution of an additional covenant pursuant to Section 3C, par. 5(b) of the board's rules and regulations. Even assuming it does, the effect of the board's waiver of the requirement that the plan show all municipal services remains the same. Section 3C, par. 5(b), requires only that a developer covenant to provide "improvements as shown on the Definitive Plan and as specified in Section 5." Since Section 5 of the rules and regulations (entitled "Specifications for Construction of the Required Improvements") does not itself require the installation of any municipal services but only sets forth the specifications according to which the improvements depicted on the plan are to be constructed, [Note 13] it follows that a covenant executed pursuant to Section 3C, par 5(b), would, like the covenant contained in Hanian's application for approval of the plan, require the installation only of those services shown on the plan or

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required by the certificate of approval (and accompanying letter) attached to the plan. It is true that in the suggested form of the covenant contained in the Appendix to the rules and regulations (Form F) the developer covenants not simply to provide municipal services "as specified in Section 5" but to provide them "in accordance with . . . the applicable Rules and Regulations of said Board." However, the effect is the same. The rules, instead of requiring that particular municipal services be installed in all subdivisions, leave the question of which services are to be installed in the discretion of the board. The operative provision is subsection J, par 1. of Section 4 ("Design Standards"). That paragraph reads: "The Board will require that the plan show municipal services of the kinds existing in the public ways nearest to the subdivision, or which in the opinion of the Board are likely to be laid in such public ways within the reasonably near future and which will be necessary for the health, safety, or convenience of the prospective occupants of the subdivision." Read in context, therefore, pars. 2-10 of Section 4J do no more than provide that, if the board requires pursuant to par. 1 that the plan show a particular service, the design of that service as shown on the plan must be as directed and approved by the appropriate governmental or other body.

To summarize, the board having failed in the letter accompanying its certificate of approval of the plan explicitly to require the installation of water pipes, fire hydrants, telephone lines or ducts, fire alarm cables and boxes and street lights, the consequence of its purported waiver of Section 3C, par. 2(k), is that the developers' covenant does not obligate them to install any of these services. It follows that the board's purported waiver is "inconsistent with the intent and purpose of the subdivision control law" (see G. L. c. 41, Section 81R) and improper. Contrast Lyman v. Planning Bd. of Winchester, 352 Mass. 209 , 213-214 (1967), and Caruso v. Planning Bd. of Revere, 354 Mass. 569 , 572 (1968). Among other purposes of the Subdivision

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Control Law is "safety in case of fire" and "securing adequate provision for water" (G. L. c. 41, Section 81M, as amended through St. 1969, c. 884, Section 2) and G. L. c. 41, Section 81U, as amended through St. 1972, c. 749, provides, "Before endorsement of its approval of a plan, a planning board shall require that the . . . installation of municipal services be secured by" either a bond or a covenant. See Gordon v. Robinson Homes, Inc., 342 Mass. 529 , 532 & n.1. (1961), and Costanza & Bertolino, Inc. v. Planning Bd. of No. Reading, 360 Mass. at 680. The waiver being improper, the board's approval of the plan must be annulled.

Since it appears that Hanian and Ventre will continue to seek approval of a plan to subdivide the locus, we express our opinion on the remaining issues argued by the parties which appear likely to arise upon reconsideration of the plan.

Section 3C, par. 2(g), of the board's rules and regulations requires that subdivision plans show the "[b]oundary lines, areas and dimensions of all proposed lots, with all lots designated numerically and in sequence." The twenty-one sheets of the subdivision plan depict only the fifty-one lots (together with parts of five others) shown on the drawing reproduced in Appendix A at the conclusion of the opinion. However, the developers propose to subdivide the locus not only into the lots shown on the plan but also into approximately seventy additional lots as shown on the "lot section plan" [Note 14] which Hanian submitted to the board before its approval of the plan.

It should first be observed that the "lot section plan" is not a part of the subdivision plan approved by the board; neither the plan, the board's certificate of approval of the plan, nor the letter attached to that certificate refer to the "lot section plan." Compare Green v. Board of Appeal

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of Norwood, 358 Mass. 253 , 261-262 (1970); M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass. App. Ct. 446 , 458-460 (1975). Although the plaintiffs do not mention it in their brief, at least one effect of the board's failure to require that all proposed lots be depicted on the subdivision plan is that four of the lots referred to in the fourth, sixth, and eighth conditions contained in the letter attached to the board's certificate of approval of the plan (lots 292, 294, 348, and 358), although shown on the lot section plan, are either only partially depicted on the subdivision plan or not depicted at all; it follows that the fourth, sixth and eighth conditions would, at the least, be ambiguous to those relying on the information recorded at the registry of deeds. See M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass. App. Ct. at 459-460. These deficiencies must be corrected. An obvious way to correct them is to include the lot section plan in the subdivision plan.

Apart from the deficiencies already discussed, we see no reason why the fact that the plan approved by the board fails to show all the lots into which the developers propose to subdivide the locus should of itself invalidate the board's approval of the subdivision of the locus into the lots actually shown on the plan. In light of the provision contained in G. L. c. 41, Section 81O, as amended by St. 1963, c. 804, that developers can, after the approval of the plan, change the "number, shape and size" of the lots shown on subdivision plans subject to certain conditions as to frontage, the primary purpose of the requirement also contained in Section 81O that the plan show the lots into which the land is to be divided must be the disclosure of "enough information . . . to enable the boards to perform their duties" (Loring Hills Developers Trust v. Planning Bd. of Salem, 374 Mass. 343 , 351 [1978]) and to enable affected persons and members of the public to come to an informed judgment as to the merits of the plan, rather than to bind the developers to divide the land into exactly the lots shown on the subdivision plan. So long as the lot

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section plan is before the board when it considers the subdivision plan and is available to members of the public before the hearing required by G. L. c. 41, Section 81T, this informational purpose of Section 81O will be fulfilled even if the developers do not include the lot section plan as part of the subdivision plan.

Section 3C, par. 2(l), of the board's rules and regulations requires that the plan show the "[l]ocation and species of proposed street trees." [Note 15] The subdivision plan submitted by Hanian does not show this information; we are told that the "lot section plan," which, as has already been seen is not a part of the subdivision plan, does show this information. Nevertheless, given the facts that the subdivision plan itself did not show street trees and the certificate of approval or accompanying letter did not contain any condition that such trees be planted, the effect of the board's waiver of Section 3C, par. 2(l), is that the developers are under no obligations to plant street trees. [Note 16] See M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass. App. Ct. at 458-460, and case cited.

However, it is apparent that this result was unintended; the board clearly intended the waiver of its rules and regulations to have only a procedural rather than a substantive effect. Inclusion of the lot section plan as part of the subdivision plan, which we suggested earlier in this opinion, will overcome this difficulty. Since the board does not desire to give up its authority to review where the developers plant street trees, we need not consider whether it could properly do so pursuant to Section 81R.

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Although a review of the subdivision plan reveals that it contains considerable information concerning the design and layout of the ways the developers propose to construct, the plan apparently does not contain all the information concerning those ways required by Section 3C, pars. 2(f) and (n), or set it forth in the manner required by the latter provision. The parties have not, however, troubled to inform us exactly how the plan fails to comply with those provisions. Since much of the required information is obviously technical and the relevant aspects of the plan complicated, we do not feel it appropriate for us to attempt to determine on our own how the plan fails to comply. In these circumstances, we express no opinion as to whether the waiver of Section 3C, pars. 2(f) and (n) was proper.

The plaintiffs contend that the board's waiver of Section 3C, pars. 2(i), [Note 17] (o), [Note 18] and (p), [Note 19] was improper; they argue that the failure of the topographical map submitted by Hanian before the public hearing and the failure of the plan itself to show all the information required by the waived provisions made impossible a reasoned consideration of the subdivision plan at the public hearing. This issue is unlikely, however, to arise in the same form upon further consideration of the plan. Following the public hearing Hanian submitted a more detailed map of the existing topography showing much of the information required by the waived provisions which was not shown on the earlier map. However, as the plaintiffs observe, among the requirements

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with which neither map complies is the additional requirement of Section 3C, par. 2(p), that the developer submit a map of the proposed topography of the subdivision.

In view of the fact that it is provided that this map be "not a part" of the definitive plan, and for the reasons discussed in Loring Hills Developers Trust v. Planning Bd. of Salem; 374 Mass. at 350-351, we think that the requirement of a map of the proposed topography is informational only and is not meant to bind the developer to grade the subdivision in the manner shown on that map. Given this fact, we believe that the board could properly find that a waiver of that requirement is "in the public interest and not inconsistent with the intent and purpose of the subdivision control law." See G. L. c. 41, Section 81R.

The plaintiffs also assert that the map of the existing topography submitted after the public hearing is inadequate because it fails to show all the information required by Section 3C, pars. 2(i), (o), and (p). However, the record contains only vague references to those natural features which that map fails to show. In these circumstances we are unable to express an opinion as to whether the board can properly waive pursuant to Section 81R whatever requirements of pars. 2(i), (o), and (p), with which that map does not comply.

As to the remaining provisions of the rules and regulations that Hanian did not comply with in submitting the plan, it is sufficient to state that the plaintiffs have not sustained their burden of proving Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548 [1975]) that the board could not properly waive those provisions in the circumstances disclosed on this record.

2. Brookside Drive.

As shown on the subdivision plan approved by the board, Brookside Drive meets the design criteria for minor streets [Note 20] but not for secondary streets [Note 21] set forth in

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Section 4B, par. 3(a). For example, it meets the requirement applicable to minor streets that the roadway be twenty-six feet wide but not the requirement applicable to secondary streets that the roadway be thirty-two feet wide. We have no doubt that Brookside Drive is a secondary street rather than a minor street as those terms are defined in Section 4B, par. 1. Brookside Drive "intercept[s] several minor streets," including Lea Circle, Baker Hill Drive and Hill Top Road; it will carry traffic from those roads, on which approximately seventy lots abut, to such major streets as Fottler Road and North Street and the community facilities to which they give access, since it constitutes the shortest and most convenient route to those major streets. In these circumstances it cannot be said that Brookside Drive will be used primarily to provide access to the approximately sixty lots abutting on it.

Brookside Drive as shown on the plan thus violates the design criteria contained in Section 4B, par. 3(a), and, as a result, the plan, apart from the other problems already discussed in this opinion, cannot be approved in its present form unless the board could, pursuant to G. L. c. 41, Section 81R, waive the requirements of Section 4B, par. 3(a). We think it best, however, that on the present record we not decide the question whether the board could properly make such a waiver. The board approved the plan on the basis that Brookside Drive was a minor street, and at trial neither the parties nor the trial judge appear to have considered the issue whether, if Brookside Drive were in fact a secondary

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street, the design criteria applicable to such streets could be waived pursuant to Section 81R.

3. Baker Hill Drive.

Section 4B, par. 4(a), of the rules and regulations states, "Dead-end streets shall not be longer than . . . 500 feet unless, in the opinion of the Board, a greater length is necessitated by topography or other local conditions." The plaintiffs contend that Baker Hill Drive, which is over 500 feet in length, [Note 22] is a dead-end street within the meaning of this provision. It appears from the trial judge's findings of fact that this contention was not made below. However, since the issue may arise upon further consideration of the plan, we state our opinion that Baker Hill Drive is indeed a dead-end street within the meaning of Section 4B, par, 4(a).

As shown on the plan (see Appendix A), it is closed at one end. [Note 23] See Sparks v. Planning Bd. of Westborough, 2 Mass. App. Ct. 745 , 748 (1974). Contrast Wickham v. Newfane, 190 Misc. 880, 881 (N.Y. Sup.Ct. 1947). We see no reason why the fact that the turnaround at the closed end of Baker Hill Drive is large enough to enclose fourteen house lots should affect its character as a dead-end street. Neither the board nor the developers have argued that Baker Hill Drive is, as a result of that turnaround, a combination of a number of streets, rather than a single street, and, in any event, such an argument, given the configuration of Baker Hill Drive, could not succeed. Contrast

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Sparks v. Planning Bd. of Westborough, 2 Mass. App. Ct. at 747-749. Regulations such as Section 4B, par. 4(a), are enacted because of a concern that the blocking of a dead-end street, as by a fallen tree or an automobile accident, will prevent access to the homes beyond the blockage particularly by fire engines, ambulances, and other emergency equipment; the size of the turnaround provided at the closed end of the road does nothing to mitigate that concern and may even be said to increase it (at least so long as so much of the dead-end road as is not part of the turnaround exceeds the maximum length provided for in the regulation).

The record is insufficient for us to express an opinion on the question whether the board could find pursuant to Section 4B, par, 4(a), that "topography or other local conditions" require that Baker Hill Drive be longer than 500 feet.

4. Conclusion.

The remaining issues argued by the parties do not appear likely to arise upon further consideration of the plan. The judgment is reversed, and a new judgment is to enter annulling the board's approval of the plan.

So ordered.

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Appendix A