Plaintiff PAV Properties, Inc. (PAV) filed its unverified Complaint on July 12, 2005, appealing the decision of Defendant Planning Board for the City of Lowell (the Board) dated June 27, 2005, pursuant to (1): G.L. c. 40A § 17, denying PAV a Planned Residential Development (PRD) special permit (the PRD Special Permit); and (2) G.L. c. 41 § 81BB, refusing to endorse PAVs thirteen-lot definitive subdivision plan (the Subdivison Plan) relative to a 17.04 acre industrially zoned parcel of land located at 219 Westview Road in Lowell, Massachusetts (Locus). The Board filed its Answer on August 9, 2005. On February 16, 2006, by joint request of the parties, I remanded this case to the Board for its consideration of revised applications for both the PRD Special Permit and the Subdivision Plan. [Note 1]
By a decision dated June 23, 2006, the Board again denied both applications. Following the second denial, PAV filed an unverified Amended Complaint on July 20, 2006, and the Board filed its Answer to the Amended Complaint on July 31, 2006. PAV filed its Motion in Limine on March 19, 2007. The Board filed its Motion in Limine on March 23, 2007. A site view and the first day of trial at the Lowell District Court took place on March 26, 2007, followed by a second day of trial on March 27, 2007, at the Land Court in Boston. At the first day of trial, PAVs Motion in Limine was heard and allowed, and the Boards Motion in Limine was heard and partially allowed, as discussed, infra. The parties also filed that day a Joint Stipulation of Facts. After PAV presented its evidence, the Board filed a Motion for a Directed Finding, which I denied from the bench. PAV and the Board both filed their post-trial memoranda on June 1, 2007, and at that time the matter went under advisement.
Testimony for PAV was given by John H. Lougee (Lougee) (the civil engineer who designed the PRD), George Michael Psoinos (a principal owner of PAV), and George John Proakis (the chief planner for the City of Lowell), and, by deposition, Mario Madrid (the transportation engineer for the City of Lowell at the time of PAVs application). The Board did not call any witnesses. There were thirty-nine exhibits submitted, some in multiple counterparts.
Based on the sworn pleadings and the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:
1. PAV is a New Hampshire limited liability company, with its place of business in Hudson, New Hampshire, and the proposed purchaser of Locus under a purchase and sale agreement with an estate. [Note 2] Locus is a vacant parcel of land containing 17.04 acres, located on the westerly side of Westview Road, a private road. Approximately seven acres are located in the S-1 (Single-Family Dwellings) Zoning District and the remaining ten acres are in the IP (Industrial Park) Zoning District. All dwellings proposed for the subdivision would be constructed within the IP Zoning District. [Note 3]
2. On October 6, 2004, PAV filed its Application for Preliminary Concept Approval dated October 6, 2004, for a thirteen residential lot subdivision for Pleasant View Estates (the Subdivision) and a P.R.D. Plan of Land which included a Preliminary Planned Residential Development dated October 4, 2004. [Note 4] Twelve lots were located on four acres and a large open space lot of wetlands was located on the remaining thirteen acres. Access to the Subdivision was on the subdivision road called Fairway Drive, which connected to Westview Road through an easement across an abutting seven lot residential subdivision titled Westview Common. Westview Common also utilized Westview Road for its access. [Note 5] The developable portion of Locus is bounded on the north by Westview Street which abuts Mount Pleasant Golf Club, on the west by wetlands and Old Middlesex Canal, on the south by wetlands, and on the east by wetlands and Westview Common. The preliminary subdivision plan was denied on November 1, 2004. [Note 6]
3. On April 28, 2005, PAV filed applications for the definitive subdivision plan (the Subdivision Plan) titled Definitive Subdivision, Pleasant View Estates, Planned Residential Development dated April 27, 2005, showing thirteen lots, and the PRD Special Permit with the Board. The Board denied the Subdivision Plan and the PRD Special Permit on June 27, 2005 (Denial 1). PAV appealed Denial 1 to this court on July 12, 2005.
4. Following a remand from this court, on May 5, 2006, PAV submitted an Application for Approval of a Definitive Subdivision Plan dated April 18, 2006, which included a revised conceptual subdivision plan titled Pleasant View Estates Conceptual Plan of Land dated May 11, 2006 (the Conceptual Plan) and additional special permit materials, showing ten residential lots instead of twelve and an open space lot (the Open Space Lot). The additional special permit materials included a Draft Conservation Restriction (the Draft Conservation Restriction) dated June 2006, which stated that PAV granted the City of Lowell certain conservation restrictions relative to the Open Space Lot for the benefit of the City and for the remaining land of Grantor. The Draft Conservation Restriction, however, stated that the Open Space Lot was to be used only for the common enjoyment and recreation of PAV and the subdivision owners and does not grant either to the City or to the public any right to enter the Lot.
5. Westview Road, a dead-end street, is approximately 1800 feet long. Fairway Drive, the subdivision dead-end road which runs off Westview Road, is approximately 1500 feet long. Pursuant to section IV.A.3.a of the Subdivision Rules and Regulations of the Lowell Planning Board (the Regulations), the maximum allowed length of a cul-de-sac in a subdivision is 600 feet; anything longer requires the Board to grant a waiver pursuant to the Regulations. Approximately 250 feet of Westview Road has less than seventeen feet of pavement width. Section V.A.2.a of the Regulations require all roadways to conform with width as specified in Street Cross Sections diagram. The Street Cross Section diagram calls for a minimum through traffic lane of twenty feet.
6. PAVs engineers, including Lougee, found that the water pressure in the fire hydrant nearest to the subdivision was insufficient for fighting fires. As a remedy for this problem, PAV proposed attaching water-storage tanks to each home in the PRD. These tanks would store water and spray it at sufficient pressure for fighting fires. Lougee refers to a similar fire-suppression system in use by a developer in Methuen. However, he acknowledged that he had never worked with such a system and had no knowledge of how this type of system performed in the event of an actual fire. The Board feared that the daily water use of the ten new residential homes would exacerbate the poor water pressure going to the existing homes and that the water-storage tanks would not mitigate this problem. At trial, Lougee testified that the addition of residential houses at the end of a waterline could potentially reduce water pressure along the waterline. While he also testified that the Subdivision Plan would likely not impact the fire suppression systems for the existing homes on Westview Road, Lougee neither identified a specific point where residential construction would impact water pressure, nor provided an estimate as to what degree a residential house could reduce water pressure.
7. At trial, Lougee testified that widening Westview Road would require the removal of numerous mature, old-growth trees in the neighborhood, in addition to significantly reducing the size of several of the front yards along Westview Road.
8. The Conceptual Plan did not specify the lot sizes or landscaping on the lots.
9. The Board denied the remand applications by decision dated June 23, 2006 (Denial 2). Reasons stated were:
1. The project is not consistent with the Comprehensive Master Plan, which seeks to preserve the industrial zoned land in the City . . . .
2. The applicant did not address concerns that the Board raised during the preliminary application process and the original hearing of the project, including:
Addressing the management of proposed conservation lands: The applicant indicated that the condominium association will manage the conservation lands and that an organization might in the future have an interest in taking control of the land, though there was no official agreement in place with such an organization. Approval of the PRD depends upon the Boards comfort that there is an advantage in preserving and protecting open space on the proposed development parcel. Plans indicating the process for regulating the open space, as required under section 22.214.171.124, were not designed to the satisfaction of the Board.
Addressing issues regarding water pressure and emergency vehicles access to the site: The project proposed to extend an 1800-foot dead-end length of street with over 35 existing homes by adding an additional 12 homes. The revised plan reduced the number of additional homes to 10. Despite this reduction, the applicant testified at the public hearing that there was insufficient water pressure at the end of Westview Road for fire suppression for even 10 additional homes. Emergency vehicle access and water pressure at this site have reached a point where further residential development cannot be sustained. The regulations under section 8.2.2(3) require that the comprehensive development plan comply with the statues [sic], regulations, and ordinances of the City of Lowell. This provision violates Section IV.A.3.a of the City of Lowells Subdivision Regulations. Addressing traffic and other safety concerns of both the development and neighborhood: Westview Road is not accepted by the City of Lowell. It cannot be widened. Areas of Westview road have less than 17 feet of pavement width and only 20 feet of right-of-way.
No assurance that sizes of lots and houses will be compatible and complimentary: The Citys Comprehensive Master Plan references a priority for the preservation of neighborhood character. While all new homes in the area around Westview Road have been built on 10,000 square foot lots, the proposed are much smaller. Furthermore, the applicant provided no elevations, renderings, or architectural plans of the proposed buildings showing how the buildings would look in the proposed development. The PRD allows smaller lots, only if the project meets the special permit provisions of the Zoning Ordinance. The project does not adequately address inconsistencies in neighborhood character.
3. The Board was not willing to grant the waiver being sought by the applicant in order to construct the project: The following waiver was requested and not granted:
Extension of pre-existing oversized dead-end street. [Note 7]
Motions in Limine
At the beginning of the trial, both parties presented motions in limine. PAV sought to introduce the deposition testimony of Mario Madrid, the former transportation engineer for the City of Lowell because of the unavailability of that witness. The Board did not oppose the motion, provided that the entire transcript was entered instead of just a portion; as a result, I allowed that motion. The Board filed three additional motions in limine: first, to exclude the Residential Development Guidelines for Traditional Neighborhoods, which I allowed after the parties agreed to enter a stipulation relative to the guidelines; second, to exclude the minutes of various planning board meetings, which I allowed when the parties agreed to enter only the votes and attendance records of the meetings; third, to exclude various plans of other PRDs in Lowell, which I indicated I would hear on a plan-by-plan basis during testimony.
Standards of Review
A PRD is a type of subdivision that clusters homes, allowing dimensional variations in return for preserving open space, and gives the Board greater control over the planning process. Because of these variations from standard subdivision requirements, parties seeking a PRD endorsement in Lowell must also apply for a special permit. Therefore, there are two standards of review that must be used: the standard under G.L. 41 § 81BB of the Subdivision Control Law which governs review of subdivision plans, and the standard under G.L. 40A § 17, which governs review of a special permit.
The standard of review for a boards decision regarding a special permit is extremely deferential, and after a de novo review this court may overturn the Boards decision only if it was based on a legally untenable ground . . . or it is unreasonable, whimsical, capricious, or arbitrary. ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996). The Appeals Court elaborated on these standards as a two-step approach in Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 (2003). First, the court determines if the board based its decision on a legally tenable ground, versus a standard, criterion, or consideration not permitted by applicable by-laws or statutes. Id. This first step does not require judicial fact-finding; the court must simply determine if the board has used a standard that is in the by-law or statute. The second step requires a factual review to determine whether the board has denied the application by applying those criteria and standards in an unreasonable, whimsical, capricious or arbitrary manner. Id. The Court stated, [t]his second element of review . . . is highly deferential . . . and gives the board discretion to deny a permit application even if the facts found by the court would support its issuance . . . . Id. Even when the record shows that a permit could have been granted lawfully, the board still retains discretionary authority to deny the permit, provided that such decision has a reasonable basis. See Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001).
The review of a subdivision decision under G.L. 41 § 81BB is far less deferential. The court conducts a de novo fact finding, and confining its review to the reasons stated by the planning board for its disapproval of the subdivision plan, determine[s] the validity of the boards decision. Fairbain v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). The court must determine if the reasons given by the board are supported by valid regulations that were in existence at the time the plan was filed. North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432 , 444 (1981).
PAV argues that it has met the requirements for both the Subdivision Plan and the PRD Special Permit, and that the Board abused its discretion in denying both applications. With respect to the Conceptual Plan, PAV states that it only requested one waiver, for length of a dead-end street (Fairway Drive), [Note 8] and that the Board should have granted such waiver because it had granted similar waivers in the past, it did not argue public safety issues as a basis for denying the waiver, and the Fairway Drive access to Westview Road is the only feasible access to Locus. PAV also states that the Regulations make no provision for the Board to consider off-site ways (Westview Road). With respect to the PRD Special Permit, PAV argues that it meets all requirements for both the PRD Special Permit and general requirements for a special permit, and that it created a comprehensive development plan for the PRD. The Board argues that PAV failed to file a complete application, failed to meet the requirements of both the Lowell Zoning Ordinance (the Code) and the Master Plan, and failed to address the public health and safety issues raised by the Board at both the Board hearing and at trial. The Board also argues that it is entitled to discretion relative to the issuance of special permits and waivers. I shall address each of these issues in turn.
PRD Special Permit
Section 8.2.1 of the Code states,
In a Planned Residential Development (PRD) the dimensional requirements of individual lots are relaxed in exchange for a set-aside of passive open space and active recreational areas for common or public use within the overall development parcel. The PRD also clusters building sites thereby minimizing the amounts of roadway, utilities, and other infrastructure that must be developed and ultimately maintained by the City of Lowell for a given number of building sites . . . . This approach requires a special permit to be granted by the approval of a comprehensive development plan by the Planning Board in conjunction with subdivision approval. The PRD requirements set forth in this Section govern the project with the approval of the comprehensive plan. Permits for projects that do not conform to the existing zoning cannot be issued without this approval. PRD is a land use permitted only by special permit in the zones designated in the Table of Uses . . . .
A PRD is allowed in all zoning districts by special permit.
Section 8.2 of the Code (Planned Residential Development) states, in part, as follows:
8.2.2 Eligibility Requirements. To be eligible for a special permit for a PRD, the following specifications must be met . . . .
3. The applicant must have a comprehensive development plan for the entire development site, to include all facilities to comply with applicable sanitary, building, and public safety codes and ordinances of the City of Lowell and Commonwealth of Massachusetts, and must be designed, constructed, and maintained in accordance with the statutes, regulations, and ordinances of the City of Lowell and the Commonwealth of Massachusetts. 4. Such a comprehensive development plan must be submitted to the Planning Board for its approval and must be in accordance with the stated or implied development objectives as identified in approved planning reports and studies of the City of Lowell and Regional Planning Agency . . . .
8.2.3 Application. In order to establish a PRD, the applicant must submit a comprehensive development plan for approval by the City of Lowell Planning Board to obtain a special permit. This submission may be made in conjunction with either a preliminary subdivision plan or a definitive plan in the event that no preliminary plan is submitted. In addition to all the requirements of a preliminary or definitive subdivision plan, the comprehensive development plan must include the following information . . . .
3. A site plan for a typical building lot for each proposed type of use (single family residence, two family residence, etc.) illustrating how the building(s), required parking, and landscaping will be placed on a typical lot.
4. Perspective sketches, elevations, and/or renderings showing proposed streetscapes and building designs.
5. Plans indicating dedicated recreational and conservation open space areas and a proposal for how they will be administered including drafts of any covenants or deed restrictions that may be used to preserve the open space . . . .
Section 8.2.5 of the Code (Permitted Land Use Activities in a PRD) states, in part, as follows: The following land use activities may be proposed in a planned residential development comprehensive plan submitted to the Planning Board for special permit review. The Planning Board will not grant a special permit if other land-use activities are proposed within the plan. 1. Single-family residential . . . .
Section 8.3 of the Code (Residential Development in Industrial District) states, in part, as follows:
8.3.1 General. Certain residential developments may be permitted by special permit granted by the Zoning Board of Appeals [(the ZBA)] in the Industrial District, as set forth in the Table of Uses, Article XII. [Note 9] 8.3.2 Criteria. In addition to the criteria set forth in section 11.3, the ZBA shall consider the following:
1. The Applicant shall demonstrate that the combination of the direct net municipal fiscal impact of the proposed residential development and the quantifiable added value that the proposed development brings to adjacent commercial or industrial properties equals or exceeds the direct net municipal fiscal impact of the potential highest and best use industrial or commercial development of the same site.
Section 11.3.2 of the Code (Special Permits) states, in part, as follows:
11.3.1 Special Permit Granting Authority. Unless specifically designated otherwise, the Board of Appeals shall act as the Special Permit Granting Authority.
11.3.2 Criteria. Special permits shall be granted by the Special Permit Granting Authority, unless otherwise specified herein, only upon its written determination that the adverse effects of the proposed use will not outweigh its beneficial impacts to the city or the neighborhood, in view of the particular characteristics of the site, and of the proposal in relation to that site. In addition to any specific factors that may be set forth in this ordinance, the determination shall include consideration of each of the following:
1. Social, economic, or community needs which are served by the proposal;
2. Traffic flow and safety, including parking and loading;
3. Adequacy of utilities and other public services;
4. Neighborhood character and social structures;
5. Impacts on the natural environment; and
6. Potential fiscal impact, including impact on city services, tax base, and employment.
The Board focused on four major issues in denying the PRD Special Permit: inconsistency with the Master Plan (not preserving industrially zoned land and neighborhood character; failure to address the management of proposed conservation lands; public health and safety concerns (water pressure and emergency vehicle/traffic access); and incomplete application documentation relating to all of the above. [Note 10]
A. Inconsistency with the Master Plan.
The Board argues that PAV did not comply with section 126.96.36.199 of the Code, which requires that a PRD comprehensive development plan must be in accordance with stated development objectives of the City of Lowell. The Master Plan seeks to preserve the industrial zoned land in the City, and states as a goal: to protect industrial areas from encroachment of residential and institutional uses. Master Plan, § 8.1.4. PAV points out that, irrespective of the fact that the developable portion of Locus is in an industrial zone, the area surrounding Locus has residential use, that thirteen of Locus seventeen acres are wetlands, and that the developable portion of Locus is bounded on two sides by the Mount Pleasant Golf Club and Westview Common (a residential subdivision) and on two sides by wetlands. As a result, it argues that the ten-lot residential subdivision fits in with the character of the neighborhood and that even though Locus is zoned industrial, the surrounding use is primarily residential. [Note 11] If section 8.3.1 applies, section 8.3.2 of the Code requires that the ZBA determine if the proposed use is the highest and best use of the site, and consider fiscal impacts on public education, transportation infrastructure (including roadway construction, maintenance, and traffic control), water and sewer infrastructure, public safety, solid waste disposal, other public works, [and] general municipal services. Section 8.3.3 states that the applicant bears the burden of proof in showing that the proposed use meets all of the above criteria, which PAV has not done. Moreover, the ZBA never acted on a special permit under section 8.3.1 of the Code. Because this issue was not raised by the parties, and based on the outcome of this case, this court will not address it further.
The Master Plan also discusses various neighborhoods and the need for preservation of each neighborhoods character. Id. § 3.1.1. Section 3 of the Master Plan states that protecting and promoting neighborhood character is a core goal of this Master Plan. As a result, the Board also argues that, even if Locus was in a residential zone, there is no assurance that sizes of lots and houses in the subdivision will be compatible and complementary to the surrounding neighborhoods character, and points out in this regard that PAV filed an incomplete application without the documents required by section 8.2.3 of the Code. [Note 12] PAV acknowledges the many differences among the homes in the neighborhood, but states that its plans were based on characteristics that PAV and its engineers recognized as common to the neighborhood. In its refusal to endorse the PRD, the Board stated:
The Citys Comprehensive Master Plan references a priority for the preservation of neighborhood character. While all new homes in the area around Westview Road have been built on 10,000 square foot lots, the proposed are much smaller. Furthermore, the applicant provided no elevations, renderings, or architecture plans of the proposed buildings showing how the buildings would look in the proposed development. The PRD allows smaller lots, only if the project meets the special permit provisions of the Zoning Ordinance. The project does not adequately address inconsistencies in neighborhood character.
The Board points out that PAV did not file perspective sketches, elevations, and/or renderings showing proposed streetscapes and building designs to aid the Board in its determination that the Project is in keeping with the neighborhood. [Note 13]
With respect to the concept of neighborhood, PAV also argues that the PRD met the general requirements for a special permit under section 11.3 of the Code, and that the Board did not find that the adverse effects of the proposed use would not outweigh the beneficial impacts to the City or the neighborhood. Section 11.3.2 of the Code, however, allows special permits only upon its written determination that the adverse effects of the proposed use will not outweigh its beneficial impacts to the city or the neighborhood, in view of the particular characteristics of the site, and of the proposal in relation to that site. This language does not, by itself, require a written determination when special permits are denied. Furthermore, in Denial 2, the Board implicitly found that the negative effects outweighed the positive effects.
Finally, PAV cites Castle Estates, Inc. v. Park and Planning Bd. of Medfield, 344 Mass. 329 (1962), and argues that the provision of the Code requiring that developers preserve neighborhood character is too vague to be enforceable. Under Castle Estates, planning board regulations must be comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required of them and what standards and procedures will be applied to them. Id. at 334. [Note 14] The Castle Estates standard is offended when boards deny plans for reasons that are not listed in the local by-laws and ordinances, or such local by-laws and ordinances are too indefinite to allow applicants to know what is expected of them. North Landers, 382 Mass. at 444. Here, section 8.2.3 of the Code provides specific requirements for the application for a PRD. Moreover, Denial 2 specifically dealt with most of the requirements of section 11.3 as applicable to the PRD requirements. Although neighborhood character may be an indefinite term, it is not too vague to be enforceable. [Note 15]
As a result of the foregoing, I find that Denial 2 was based on a legally tenable ground when it determined that the PRD was in violation of the Master Plan and was not arbitrary or capricious.
B. Management of Proposed Conservation Land.
The Board argues that PAV did not address the management of proposed conservation land, as required by section 188.8.131.52 of the Code, which required a proposal for how [the open space] will be administered, including drafts of any covenants or deed restrictions that may be used to preserve the open space. PAV filed the Draft Conservation Restriction with the Board that indicated the open space lot would be made subject to conservation restrictions for the benefit of PAV and the subdivision owners, but such process would not open the lot up to public use. In Denial 2, the Board stated:
The applicant indicated that the condominium association will manage the conservation lands and that an organization might in the future have an interest in taking control of the land, though there was no official agreement in place with such an organization. Approval of the PRD depends upon the Boards comfort that there is an advantage in preserving and protecting open space on the proposed development parcel. Plans indicating the process for regulating the open space, as required under section 8.2.3(5), were not designed to the satisfaction of the Board.
Again, the Board points out that PAV filed an incomplete application because it did not comply with the terms of section 8.2.3 of the Code requiring an open space plan. [Note 16] As a result, I find that the Board was not arbitrary or capricious in finding that PAV did not meet the requirements of section 184.108.40.206 of the Code relative to its management of proposed conservation land.
C. Public Health and Safety Concerns.
Section 1.1.2 of the Code defines, as a purpose of the Code, to lessen congestion in the streets . . . to facilitate adequate provisions for transportation, water, sewage, schools, parks, and other public requirements. See also G.L. c. 40A § 1. [Note 17] As this is a subdivision proposal, it is also governed by G.L. c. 41 § 81M, which has similar provisions. Furthermore, section 220.127.116.11 and section 11.3 of the Code include a requirement to address many of these same concerns; the Board found specific issues with water pressure and access.
1. Water Pressure
The Board took into account the effect the subdivision would have on the already existing homes water pressure. The Board argued that, based on Plaintiffs own experts tests, the hydrant closest to the subdivision did not have adequate water pressure for fire suppression, and adding ten homes to the area would reduce the water pressure for the already existing homes. The Board stated, water pressure at this site [has] reached a point where further residential development cannot be sustained. PAV argued that the development would not affect the surrounding homes to the degree the Board was arguing. Lougee, however, though stating that the water pressure effect would not be as great as the Board feared, offered no facts to support his conclusion. He also proposed attaching water storage tanks to each home, but he did not explain how such tanks would alleviate the problem of reduced water pressure. [Note 18] Moreover, the Board determined that such tanks would not mitigate the problem, particularly with respect to other homes in the immediate vicinity. [Note 19]
When reasonable minds differ on the seriousness of a problem in relation to a special permit, the boards decision is controlling. Kinchla v. Bd. of Appeals of Falmouth, 11 Mass. App. Ct. 927 , 927 (1981). Certainly, in the case at bar, reasonable minds differ about the seriousness of the water pressure problem. Board members are required to consider what adverse effects on the neighborhood the proposed use might produce. ACW Realty Mgmt., 40 Mass. App. Ct. at 248. In performing its duty of analyzing neighborhood impacts, the Board concluded that the drain on the water pressure would be significant. While the evidence presented to the board did not compel this conclusion, it warranted such a conclusion, and the judge should not [substitute] his judgment for the boards. Zaltman v. Bd. of Appeals of Stoneham, 357 Mass. 482 , 484 (1970). As facilitating adequate water pressure is part of the Code, and as the Boards conclusions took into account tests conducted by PAVs engineers on the fire hydrants which determined that the pressure was insufficient for fighting fires, I find that, with respect to water pressure, Denial 2 was based on a legally tenable ground and it was not applied arbitrarily or capriciously.
2. Off-site Access Road.
The Board also concluded that Westview Road, the off-site access road for the subdivision, is not wide enough for the proposed PRD, and argued that adequate access is a basic necessity under the Code. The Board wrote, Westview Road is not accepted by the City of Lowell. It cannot be widened. Areas of Westview Road have less than 17 feet of pavement and only 20 feet of right-of-way. Approximately 250 feet of Westview Road has pavement that is less than seventeen feet wide, and according to Lougee, PAVs expert, a standard fire truck is about twelve feet wide. Lougee concluded that if cars are parked along Westview Road, emergency vehicles would have a very difficult time reaching the PRD. The Street Cross Sections in the Regulations show a minimum street width of twenty feet. Widening the road would have a significant neighborhood impact because it would involve tearing out old trees and encroaching on peoples front yards. [Note 20] The Board determined that Westview Road is not wide enough to support ten new homes, and, by implication, found that the negative neighborhood impacts of widening the road outweigh the benefits of the new homes. It is not this courts position to overturn the Boards decision, as adequate access is a part of the Zoning Enabling Act and the Code. See G.L. c. 40A § 1 and Lowell Zoning Code § 1.1.2; see also North Landers, 382 Mass. at 441 (adequate access when applied to subdivisions under the Subdivision Control Law has been interpreted as one of the very basic necessities for subdivision approval); G.L. c. 41 § 81M.
PAV cites North Landers to support its argument that the Board improperly considered the access road because the access road is outside of the proposed PRD. As discussed, supra, adequate access is part of the Code as well as the Subdivision Control Law and the Zoning Enabling Act. See G.L. c. 40A § 1; see also G.L. c. 41 § 81M. North Landers, however, does limit offsite considerations: The Castle Estates standard is offended when local boards have introduced reasons not specified in the published regulations. North Landers, 382 Mass. at 444.
Admittedly, the Regulations differ from the regulations at issue in North Landers. Whereas section 17 of the Falmouth subdivision regulations required adequate access from a public way, the Regulations do not expressly require the Board to look at offsite access. PAV argues that, as a result, the Boards review of Westview Street was improper. However, the facts in North Landers distinguish that case from the facts at hand. The development in North Landers was directly adjacent to a public waySam Turner Road. Id. at 434. Contrastingly, the only access to the Subdivision from Pine Street, a public way, is via Westview Road, a private dead-end way, to Fairway Drive, the dead-end subdivision road. Both parties discuss the length of each of the dead-end streets as the sole access to the Subdivision. See infra note 22.
Additionally, this court finds the rationale behind North Landers persuasive. There, the SJC spent considerable effort discussing the nature of subdivision regulations. Included in this discourse was the thought that the context of the regulations is relevant to its meaning. See id. at 442 (To analyze such open-ended statutory language under vagueness criteria, one must take into account not only the words themselves, but the entire context of the regulation attempted.). Furthermore, the SJC revealed that [w]ithin the Castle Estates rubric of definiteness there is room for flexibility to allow local boards to tailor decisions to the specific facts and circumstances. Id. at 442-43. [Note 21]
Finally, the applicable standard of review is relevant here. While North Landers involved the appeal of a planning boards subdivision review, in the case at bar we have judicial review in the context of a PRD special permit. As noted earlier, the amount of deference given to a board regarding a special permit is great, much more than review of a subdivision application. Nothing here indicates that the Board exceeded its authority under an arbitrary and capricious standard. Adequate access is clearly a legally tenable ground, and concerns about the width of the access road is not an arbitrary or capricious application of the concept. In consideration of the above, I find that the width of Westview Road is a relevant factor for the Board to consider. [Note 22], [Note 23]
As a result of the foregoing, I find that the Boards denial of the PRD Special Permit must be upheld. Britton, 59 Mass. App. Ct. at 76.
Subdivision plan reviews are held de novo. G.L. c. 41 § 81MM; Fairbain, 5 Mass. App. Ct. at 173. In this context, the Board has only limited discretion, and must allow subdivision plans if they meet the regulatory requirements. However, if the subdivision does not meet the requirements of the Regulations and the developer needs to seek a waiver, the Board has discretion. See Mac-Rich Realty Const., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 85-86 (1976).
Section IV.A.3.a. of the Regulations states: [c]ul-de-sacs, permanently designed as such, shall not exceed six hundred (600) feet in length unless, in the opinion of the Board, a greater length is necessitated due to topography.
In Denial 2, the Board states that
The Board was not willing to grant the waiver being sought by the applicant in order to construct the project. The following waiver was requested and not granted: extension of pre-existing oversized dead-end street.
Westview Road, a dead-end street, is approximately 1800 feet long. Fairway Drive, the dead-end subdivision road, is 1500 feet long. PAV needed a waiver for extension of an already-existing dead end street (Westview Road) and the new subdivision road (Fairway Drive). Each of the two roads, and clearly the two roads together, are far in excess of the 600 foot dead-end street maximum length. PAV did not comply with section IV.A.3.a of the Regulations. The project required one waiver, the granting or denying of which is within a boards discretion.
A planning board, of course, enjoys broad discretion under G.L. c. 41 § 81R to waive strict compliance with the requirements of its subdivision rules and regulations when such waiver is in the public interest and not inconsistent with the intent and purpose of the subdivision control law; it is not, however, required to grant a waiver.
Musto v. Planning Bd. of Medfield. 54 Mass. App. Ct. 831 , 837 (2002). PAV argued that such waivers are routinely granted, and the boards denial of PAVs application was arbitrary compared to past patterns of behavior. However, PAV did not submit adequate evidence to support this theory. [Note 24], [Note 25] In addition, even though PAV points out that the Board had already granted a waiver for Westview Road in the past, the Board states in Denial 2 that, Emergency vehicle access and water pressure at this site have reached a point where further residential development cannot be sustained.
The only waiver issues that were raised at trial were the cul-de-sac subdivision road waiver (Fairway Drive) and the extension of a previously existing dead end street (Westview Road); however, when they were raised at trial, PAV based its argument only on prior Board decisions for other projects, as discussed, supra.
Dead-end street regulations 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 . . . . Nahigian v. Town of Lexington, 32 Mass. App. Ct. 517 , 512 n.3 (1992) (citing Wheatley v. Planning Bd. of Hingham, 7 Mass. App. Ct. 435 , 451 (1979)). In Nahigian, such safety concerns were mitigated because the proposed development was commercial in nature, included a sprinkler system, and could be reached by helicopter in an emergency. Nahigian, 32 Mass. App. Ct. at 523, n.4. [Note 26] While the Subdivision Plan included fire suppression on Locus, it lacked other factors that address those safety concerns that accompany dead-end streets. As a result, I find that the Board acted within its discretion in refusing to grant the dead-end street waiver.
Moreover, as PAV was proposing to build a residential development in an industrial zone, which is only allowed by special permit, and which has been denied by the Board, the denial of the PRD Special Permit is itself enough to uphold the Boards denial of the Subdivision Plan. See Doliner v. Planning Bd. of Millis, 343 Mass. 1 , 6 (1961) (pointing out that planning boards seem to be expected under [G.L. 41 § 81M] to require compliance with any applicable zoning by-law as well as any rules and regulations of its own). Although PRDs are allowed by special permit, they are not allowed by right. As discussed above, the Board enjoys broad discretion when determining whether to grant a special permit, and as the Board acted in accordance with its zoning rules and regulations, the denial of the PRD Special Permit is enough to defeat the Subdivision Plan.
For all the reasons stated above, I find that the Boards denial of the Subdivision Plan and accompanying refusal to endorse the PRD Special Permit was reasonable and I uphold both denials.
Judgment to enter accordingly.
Alexander H. Sands, III
Dated: October 3, 2008
[Note 1] The revised application included a conceptual plan showing ten lots. PAV never filed a revised definitive subdivision plan.
[Note 2] The date of the purchase and sale agreement is not evident from the trial record.
[Note 3] Both Denial 1 and Denial 2, as hereinafter defined, state that Locus is in a Light Industry zoning district, but the parties agreed by stipulation as to the Industrial Park zoning district.
[Note 4] PAV states that the subdivision will be marketed as a retirement community for existing citizens of Lowell.
[Note 5] Three of the Westview Common lots were ANR (approval not required) lots.
[Note 6] The primary reason cited for denial was the goal of preserving industrial uses in an industrial zone as provided in the Comprehensive Master Plan for the City of Lowell (the Master Plan).
[Note 7] The reasons given for Denial 1 were virtually identical to the reasons given for Denial 2, except that four waivers had been requested for the first definitive subdivision plan.
[Note 8] The Board also argues that width of Westview Road is an issue.
[Note 9] Article XII does not allow a single-family or two-family structure by special permit in an IP Zoning District.
[Note 10] As discussed, supra, PAV never filed formal definitive subdivision plans with respect to the ten residential lot subdivision.
[Note 11] Under Code section 8.3.1, only [c]ertain residential developments may be permitted by special permit granted by the [ZBA] in the Industrial District, as set forth in the Table of Uses, Article XII. Article XII indicates that single-family residential use is prohibited in the Industrial District even with a special permit. While neither party argues the applicability of section 8.3 of the Code, it remains unclear to this court whether this section applies in the matter at hand. Section 8.2.15 of the Code states:
The approval of a PRD does not waive or compromise the applicability of any other Section of this ordinance unless specifically noted above. In the event of a conflict or inconsistency between the provisions of the PRD sections set forth above and other sections of this ordinance, the PRD provisions shall govern.
While section 8.2.5 of the Code allows single-family residential use within a PRD, nowhere does the section governing PRDs expressly waive the requirements of section 8.3, not does ZBA approval appear at odds with the PRD provisions. As such, the question remains whether section 8.3 applies in addition to the PRD requirements. The trial record includes a memo dated June 2, 2005, from George Proakis to the Board citing language from section 8.3.1 and concluding that [t]his project does NOT require a ZBA special permit, although the ZBA is encouraged to comment on the PRD application. The trial record also includes a memo from the ZBA dated June 15, 2005, in which the ZBA states it has no comment on the PRD Special Permit and Subdivision Plan.
[Note 12] The Board also points out that the remand documents did not contain a formal definitive plan, but only the Conceptual Plan.
[Note 13] PAV argues that it supplied photos of a similar project. Such photos, however, do not meet the requirements of the Code.
[Note 14] While the standard for specificity required of subdivision regulations and the standard required of zoning ordinances differs, this difference is not material in the case at bar for, generally stated, both standards require that parties know in advance what is or may be required of them. Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 697 (1996). Additionally, the standard required of zoning ordinances is less exacting than the standard required for subdivision regulations. Fogelman v. Chatham, 15 Mass. App. Ct. 585 , 590 (1983). Here, since the Code language at issue does not violate the standard for subdivision regulations, see infra, it, too, passes muster under the more relaxed zoning standard.
[Note 15] The Court in North Landers acknowledged the need for flexibility in subdivision regulations when it found that the phrase adequate access was not so rubbery or indefinite a term as to elude common understanding. North Landers, 382 Mass. at 442.
[Note 16] Section 8.2.1 of the Code states, in part: In a Planned Residential Development (PRD) the dimensional requirements of individual lots are relaxed in exchange for a set-aside of passive open space and active recreational areas for common or public use within the overall development parcel. PAV claims this section allows for restricted land to be reserved for common or public use. However, nothing in this section indicates the word common allows an applicant to limit recreational areas exclusively to PRD homeowners, as Plaintiff suggests. In fact, Blacks Law Dictionary defines common as [a] legal right to use another persons property, such as an easement. BLACKS LAW DICTIONARY 267 (7th ed. 1999). This definition appears to contradict PAVs constrained interpretation of the word common. Regardless, the Boards positionthat under this language, the recreational areas must remain open to the general publicis neither arbitrary nor capricious.
[Note 17] The historical notes to G.L. 40A § 1 indicate that St. 1975 c. 808 §§ 2-7, which added the Zoning Enabling Act, describe the purpose of the Zoning Enabling Act. Section 2A gives zoning objectives, which
include, but are not limited to, the following: - to lessen congestion in the streets; to conserve health; to secure safety from fire, flood, panic and other dangers; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; [. . . ]; to facilitate the adequate provision of transportation, water, water supply, drainage, sewerage, schools, parks, open space and other public requirements; [. . . ]; to encourage the most appropriate use of land throughout the city or town, including consideration of the master plan, if any, adopted by the planning board and the comprehensive plan, if any of the regional planning agency; and the preserve and increase amenities by the promulgation of regulations to fulfill such objectives.
[Note 18] At trial, Lougee refers to a similar fire suppression system that was used by a developer in Methuen. However, he acknowledged that he had never worked with such a system and had no knowledge of how this type of system performed in the event of an actual fire.
[Note 19] At trial, Lougee testified that the water pressure of the existing homes on Westview Road would not be impacted due to the proposed fire suppression tanks. This testimony appears inconsistent with his statement that at a certain point of continued residential development water pressure for fire suppression would be reduced. Lougee neither identified a specific point where residential construction would impact water pressure, nor provided an estimate as to what degree a residential house could reduce water pressure.
[Note 20] Lougee confirmed that widening the road would necessitate the removal of numerous mature, old-growth trees. Furthermore, such action would significantly reduce the front yard sizes of certain houses on Westview Road.
[Note 21] Moreover, the SJC, in response to plaintiffs argument that the Subdivision Control Law does not permit evaluation of ways outside a proposed subdivision, stated,
[w]e do not find such a limitation in the statute. The language of Section 81M exhorts a due regard for lessening congestion . . . in the adjacent public ways and for coordinating the ways in a subdivision with . . .the public ways in the city or town in which it is located and with the ways in neighboring subdivisions.
North Landers, 382 Mass. at 436-37. The SJC concluded: Factors outside the subdivision may be considered where relevant to the requirements of the statute or of local regulations. Id. at 436 (emphasis added).
[Note 22] The Board considered each of Westview Road and Fairway Drive, both dead-end streets, as the subdivision access.
[Note 23] It shall be noted that, irrespective of how the Board decided the off-site access issue, the PRD Special Permit was denied on a number of other bases as well.
[Note 24] PAV did submit various other subdivision plans for which cul-de-sac length waivers were granted, but the number of plans, time lapsed between the plans, and the surrounding facts and circumstances of the plans did not warrant direct comparison to the case at bar. Contra Zaltman v. Bd. of Appeals of Stoneham, 357 Mass. 482 (1970) (plan was comparable due to the extreme proximity of application time, and both divisions came from a common lot). Each plan stands alone, and if the Board grants one it does not necessarily follow that it must grant others. Boards are not bound by prior decisions granting waivers, as each proposed subdivision presents unique characteristics and must be evaluated on a case by case basis. See Lakeside Builders, Inc. v. Planning Bd. of Franklin, 56 Mass. App. Ct. 842 , 847-848 (2002).
[Note 25] PAV also argues that, similar to Musto, the Board had ulterior motives for issuing Denial 2. The trial record, however, does not support such argument.
[Note 26] Additionally, the Land Court found that while the parcel lacked secondary legal access from an adjacent public way, emergency access could reach the proposed building directly from Route 128. Nahigian v. Planning Bd. of Lexington, 1 LCR 1 , 2 (1993). Plaintiff cites Nahigian in support of his argument that Locus circumscribed access warrants a waiver of the pre-existing dead-end street. In Nahigian, on remand from the Appeals Court, the Land Court determined that the Town of Lexingtons planning board abused its discretion in refusing to waive a regulation limiting the length of a dead-end road. Id. at 2. However, the physical characteristics of the parcel at issue in Nahigian are not present in Locus.