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 (Denial 2), 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. Upon filing of post-trial briefs, the case was taken under advisement on June 1, 2007, and a Decision of todays date has been rendered.
In accordance with that Decision it is:
ORDERED and ADJUDGED that Denial 2 was based on a legally tenable ground when it determined that the PRD was in violation of the Comprehensive Master Plan for the City of Lowell and was not arbitrary or capricious.
ORDERED and ADJUDGED that the Board was not arbitrary or capricious in finding that PAV did not meet the requirements of section 126.96.36.199 of the Lowell Zoning Ordinance relative to its management of proposed conservation land.
ORDERED and ADJUDGED that with respect to water pressure, Denial 2 was based on a legally tenable ground and it was not applied arbitrarily or capriciously.
ORDERED and ADJUDGED that the width of Westview Road is a relevant factor for the Board to consider.
ORDERED and ADJUDGED that the Boards denial of the PRD Special Permit must be upheld.
ORDERED and ADJUDGED that the Board acted within its discretion in refusing to grant the dead-end street waiver.
ORDERED and ADJUDGED that the Boards denial of the Subdivision Plan and accompanying refusal to endorse the PRD Special Permit was reasonable.
By the court. (Sands, J.)
[Note 1] The revised application included a conceptual plan showing ten lots. PAV never filed a revised definitive subdivision plan.