Plaintiffs Natalie Costa (Costa), Curtis Dias (Dias), Edwin and Elaine Lopes, Geraldine Branco, Zumira Pina, Russell and Rosemary Snow, William and Alexina Turner, Frank Texeira, and George Barboza (together, Plaintiffs) filed their unverified Complaint on September 7, 2005, appealing a decision of Defendant Freetown Planning Board (the Board) which approved an application by Defendant John F. Mello (Mello) for definitive subdivision approval for a nine-lot industrial subdivision (the Subdivision) on approximately 40.1 acres located at 66 Braley Road in Freetown, Massachusetts (Locus). [Note 1] On November 14, 2005 Mello filed an Answer. The Board filed an Answer on November 29, 2005. [Note 2] A Joint Pre-Trial Memorandum was filed on August 31, 2006, in which the parties stipulated to certain facts. On October 17, 2006 Mello filed a Motion in Limine and supporting memorandum seeking to exclude Plaintiffs from offering evidence on traffic safety issues; the nature and extent of wetlands resource areas located on Locus; the potability of water or other issues related to wells on Locus; and evidence concerning grading of lots on Locus. Plaintiffs filed an Opposition to Mellos Motion in Limine on October 25, 2006. The motion was heard on October 26, 2006 and an Order was issued October 31, 2006 denying the Motion relative to traffic safety issues, the potability and flow of water related to wells on Locus, and evidence concerning the grading of lots; and stating that Plaintiffs had waived their right to offer evidence regarding wetlands on Locus. On January 25, 2007 a site view and first day of trial at the Fall River Juvenile Court were held, and the trial was concluded the following day at the Land Court in Boston. Mello filed Requests for Findings of Fact and Rulings of Law on May 23, 2007, and Plaintiffs filed their Post-Trial Memorandum on May 24, 2007. At that time the matter was taken under advisement.
Testimony was given by Plaintiffs witnesses Costa, Daniel M. Dulaski (Dulaski), Chief Engineer for Traffic Solutions, and Dias; and by Mellos witnesses Paul R. Bourgeois (Bourgeois), Building Inspector and Health Agent for the Town of Freetown, Bradley C. McKenzie (McKenzie), Registered Professional Engineer for McKenzie Engineering Group, Robert David Vanasse (Vanasse), Registered Professional Engineer and Founder of Vanasse & Associates, Robert Lyman (Lyman), Real Estate Appraiser for R.K. Lyman & Associates, and Mello. There were thirty-nine exhibits submitted, some in multiple counterparts.
Based on the sworn pleadings and the evidence offered at trial, and the reasonable inferences drawn therefrom, I find the following material facts:
1) Costa and her husband Joseph Costa, Jr. are the owners of record of a single family residence located at and numbered 82 Braley Road, Freetown, Massachusetts ( the Costa Property) by deed from Samuel and Palmira Barboza dated August 10, 1963, and recorded in the Bristol Registry of Deeds (the Registry) at Book 8007, Page 9. The Costa Property is zoned residential.
2) Mello is the owner of record of Locus by deed from Mitchell and Edward Gaj dated October 6, 1995, and recorded in the Registry at Book 2997, Page 270. Locus is zoned industrial and directly abuts the Costa Property, which sits south of Locus. The municipal water system is located less than 400 feet from Locus.
3) There are four buildings currently located on Locus. Preferred Concretes plant and offices, DM drilling, and GM Truck Repair are located in Building 1; Building 2 is used by the Top Gun trucking company for storage; Building 3 is used by Harborline Enterprises, Mello, and a third party for vehicle and truck storage; and Building 4 is used to store Mellos boat and motor coach.
4) Braley Road is comprised of two sections (together, Braley Road). An older paved section (Old Braley Road) runs adjacent to Locus and the Costa Property, and serves as access to four houses, including the home on the Costa Property, and existed prior to Costas purchase of the Costa Property in 1963. In June 1974, when Braley Road was laid out as a public way, additional sections to the east of and parallel to Old Braley Road were paved (New Braley Road). A wooded buffer strip separates Old Braley Road from New Braley Road. The paved portions of Old Braley Road and New Braley Road intersect (the Braley Road Intersection) eighty feet to the south of the intersection of Braley Road and Janice Marie Way, the subdivision road on Locus (the Janice Marie Way Intersection).
5) The Freetown Water Commission (the Commission) stated in an October 28, 2003 memo to the Board regarding the Subdivision, called Braley Industrial Park, that they are not opposed to your Board granting a waiver for the installation of a dry water line, or for waiver of a water line. [Note 3]
6) On May 24, 2005, Mello filed an application with the Board for approval of the Subdivision, consisting of nine lots to be used for industrial purposes. The Subdivision was shown on a plan dated May 11, 2005, and titled, Definitive Subdivision Plan Tax Map 242, Lot 136 in Freetown, Massachusetts To Be Known as Braley Industrial Park (the Subdivision Plan).
7) Mello submitted copies of six well-construction permits for Locus issued July 18, 2000, January 5, 2001, April 19, 2005, two permits issued June 16, 2005, and August 19, 2005. Four of the permits have Well Completion Reports attached. [Note 4]
8) Through a Form L Referral Form, dated July 18, 2005, the Board notified various Freetown agencies of Mellos Subdivision Plan and asked for specific review of the plans Water system and Fire protection. The Fire and Water Departments were included in this notice. The Commission responded with a Form L-1, Plan Review Report Form, in which it stated it had no concerns with the Subdivision Plan. The record fails to include any response from the Freetown Fire Department (Fire Department).
9) The Board held hearings on July 26, 2005, August 9, 2005, and August 16, 2005, and voted on August 16, 2005, to approve the Subdivision Plan (the Decision). A Certificate of Approval of a Definitive Plan dated August 17, 2005, was filed in the office of the Freetown Town Clerk on August 19, 2005.
10) In the Decision, the Board explicitly waived fourteen requirements of the Town of Freetown Rules and Regulations Governing the Subdivision of Land (the Regulations). Only one of these express waivers is at issue in the case at bar. [Note 5] Section IV(C)(2)(a)(6) of the Regulations requires that where a municipal water system is located within 400 feet of a subdivision, the subdivider shall connect to it. The Board granted Mellos request for a waiver to use on-site private wells in lieu of connecting to the municipal water system. [Note 6] The Board also considered the history of insufficient flows and pressures in the existing municipal water system, and concluded that requiring Mello to tie into the water line is not in the best interest of the town at this point.
11) At the trial, McKenzie testified as to his opinion that a waiver of IV(C)(2)(a)(6) was essentially a de facto waiver of all relevant water-main construction requirements. He also testified that: (1) an open hydrant flow of 500 gallons per minute cannot be achieved without a water main connection; (2) while it is almost impossible for a well to provide a hydrant with 500 gallons per minute, a well could be used in conjunction with a sprinkler system to provide fire protection for buildings; (3) the Board of Healths regulations do not relate to fire protection; and (4) a building permit could not be obtained unless a well permit was first obtained from the Board of Health.
12) At trial, Mello testified that the fire pond had nothing to do with the approval of the Subdivision Plan, and that he was under no obligations to maintain the fire pond to any specifications, as part of the Subdivision Plan.
13) The distance between the Braley Road Intersection and the Janice Marie Way Intersection is eighty feet. The Board did not explicitly grant a waiver of section IV(B)(2) of the Regulations relative to the required 150 foot distance between intersections. At the August 16, 2005, hearing the Board stated that the intersection of Janice Marie Way with Braley Road currently exists and will not result in an added detriment to the community. The Board dismissed traffic and safety concerns, stating that there was no way to design the site without being within 150 feet of the intersection of Old Braley Road and New Braley Road, which is not a heavily traveled intersection.
14) At the trial, Costa offered the testimony of Dulaski who testified that the eighty foot distance between the Braley Road Intersection and the Janice Marie Way Intersection did not meet the minimum requirement of the Regulations. Dulaski testified that the minimum spacing requirements between intersections are based on human factors and driver error and the fact that crashes are more prevalent at intersections. Assuming all nine lots were developed in the Subdivision, Dulaski estimated 1176 vehicle trips on a typical weekday entering and exiting Janice Marie Way based on Institute of Transportation Engineers (ITE) projections. Dulaski concluded that the additional volume of traffic resulting from the Subdivision and the short distance between intersections would increase the potential for traffic accidents. [Note 7]
15) At the trial, Mello offered the testimony of Vanasse who looked at the geometry of Locus, including field measurements, traffic counts and accident counts on Braley Road, and concluded that at the present time Janice Marie Way has less than one hundred vehicles per day, and that there are no obstructions to the sight distance coming in or out of Janice Marie Way. Vanasse also researched Massachusetts Highway accident records and spoke with the Freetown Police Department and found no record of any accidents at either the Braley Road Intersection or the Janice Marie Way Intersection. Vanasse testified that he was involved in a national study that lead to published guidelines and standards regarding geometric traffic parameters. He testified that spacing requirement[s] w[ere] put in place to avoid turning movement conflicts, allow ease of vehicle maneuvering and movement, make sure vehicles can get tracking correctly once they make the turn and get on the tangent before they have to turn again. Citing this intent of the guidelines and the characteristics of Janice Marie Way, Vanesse testified that section IV(B)(2) of the Regulations, relative to spacing of street intersections, does not apply in the case at hand. Finally, Vanasse testified that he projected 3,000 vehicle trips per day for the Subdivision build-out, but indicated that if the geometry of the site were adequate (i.e. adequate sight distance) (which he states Locus is), more traffic does not translate into more accidents.
16) The Board explicitly granted a waiver of section IV(J)(1) of the Regulations relative to the requirement for street trees, but did not explicitly grant a waiver of section IV(J)(2) of the Regulations requiring one area of shade for each lot. [Note 8] The Subdivision Plan does not provide for individual trees on the lots, the retention of any existing trees, or any area of shade for any of the lots. The Board stated that small trees which could be planted in the subdivision under the Regulations would have a minimal impact on dust and noise, and that maintenance of such trees would be burdensome to the Highway Department. The Board pointed out that paving of the subdivision road would be the way to control dust, and that approval of the Subdivision Plan would be the best way for the Town to have control of Locus.
Plaintiffs allege that the Decision exceeded the authority of the Board and should be annulled. Plaintiffs cite three violations of the Regulations. First, the distance between the Braley Road Intersection and the Janice Marie Way Intersection is only eighty feet and not 150 feet as required by section IV(B)(2) of the Regulations. Second, the Board improperly granted a waiver of section IV(C)(2)(a)(6) of the Regulations requiring the subdivider to connect to the municipal water system when the subdivision is located within 400 feet of a municipal water system; this results in a violation of the corresponding sections of the Regulations relative to the use of water for domestic use and fire protection. Third, the Subdivision Plan does not provide one area of shade for each lot in compliance with section IV(J)(2) of the Regulations. Plaintiffs argue that these violations derogate from the purpose of the Regulations and create a safety concern. Finally, Costa argues that she is an aggrieved party.
Mello argues that the Decision should not be annulled because: (1) section IV(B)(2) of the Regulations is inapplicable because it concerns the separation of proposed new roads within a subdivision and not the separation of existing ways; (2) the Board exercised its discretion in waiving section IV(C)(2)(a)(6) of the Regulations, due to concerns about existing water pressure, as stated by the Commission, and that it waived the related water provisions of section IV(C)(2)(a) by implication; (3) section IV(J)(2) of the Regulations is inapplicable because the proposed subdivision is zoned industrial and the planting of trees for shade will not mitigate dust and noise; and (4) Costa is not aggrieved by the Decision and does not have standing to appeal the approval. I shall address each of these issues in turn.
Only a person aggrieved may challenge a decision of a [permitting authority]. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); G.L. c. 40A, § 17. A person aggrieved is one who suffers some infringement of his legal rights. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008) (citing Marashlian, 421 Mass. at 721). A plaintiff is presumed to be a person aggrieved if it is a party in interest pursuant to G.L. c. 40A § 11. [Note 9] Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). This presumption of standing is rebuttable. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 32-33 (2006). In order for a defendant to rebut the presumption of standing, a defendant is required to offer evidence warranting a finding contrary to the presumed fact. Standerwick, 447 Mass. at 25 (quoting Watros v. Greater Lynn Mental Health and Retardation Assn, Inc., 421 Mass. 106 , 111 (1995)). If standing is properly challenged, standing is then decided on all the evidence with no benefit to the plaintiff from the presumption. See Marashlian, 421 Mass. at 721 (A review of standing based on all evidence does not require that the fact finder ultimately find a plaintiffs allegations meritorious. To do so would deny standing, after the fact, to any unsuccessful plaintiff.).
Without the presumption, individual . . . property owners acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest. Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93 (1989). To qualify for that limited class, a plaintiff must establishby direct facts and not by speculative personal opinionthat his injury is special and different from the concerns of the rest of the community. Barvenik v. Bd. of Alderman of Newton, 33 Mass. App. Ct. 129 , 132 (1992). See also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005) (noting that the plaintiffs injury flowing from the boards decision must be special and different from the injury the action will cause to the community at large). To assert a plausible claim, a plaintiff must put forth credible evidence to substantiate his allegations. Marashlian, 421 Mass. at 721. Credible evidence includes
both a quantitative and a qualitative component . . . . Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the boards action. Conjecture, personal opinion, and hypothesis are therefore insufficient.
Butler, 63 Mass. App. Ct. at 441.
It is not necessary for the judge to determine that all of the plaintiffs have standing. The fact that only one of the plaintiffs is an aggrieved person is sufficient to permit an appeal from the Boards decision. See Save the Bay, Inc. v. Dept of Public Utilities, 366 Mass. 667 , 674-75 (1975).
Costa is an abutter to Locus, and, as such, has presumed standing. Moreover, Costa has alleged two harms that she believes make her an aggrieved person pursuant to G.L. c. 40A § 11: (1) an increase in the potential for traffic accidents as a result of the short distance between intersections; and (2) safety concerns as a result of insufficient water for fire protection and drinking. Increased traffic has been recognized as a valid zoning concern relative to standing. Marashlian, 421 Mass. at 722. Safety issues relative to water, framed by Costa as inadequate water for fire protection and drinking, are also valid concerns in connection with standing. See e.g., Barvenik, 33 Mass. App. Ct. at 137-38 (discussing water pressure and drainage). As a result, the burden shifts to Mello to properly challenge Costas presumption of standing.
Mello produced an expert at trial to challenge Costas presumption of standing relative to traffic. Vanasse testified on behalf of Mello that the purpose of section IV(B)(2) of the Regulations, relative to traffic and the spacing of intersections, is to avoid turning movement conflicts, allow ease of vehicle maneuvering and movement, and make sure vehicles can get tracking correctly once they make the turn. In this regard, Vanasse completed field measurements, traffic counts and accident counts on Braley Road and concluded that Janice Marie Way currently has less than one hundred vehicles per day, and that there are no obstructions to the sight distance of turning vehicles coming in or out of Janice Marie Way. Vanasse also researched Massachusetts Highway accident records and spoke with the Freetown Police Department and found no record of any accidents at either of the Braley Road intersections. Regarding the alleged harms relative to the water system, Costa has alleged that there is a reasonable safety concern with respect to both water potability and water pressure. Mello argues that the Board knowingly and intentionally waived all of the requirements of a municipal water system when it waived the requirement of the water main connection, and he relied on the advice of the Commission that it was not opposed to the waiver because of the existing poor water pressure. The minutes of several Board meetings reflect their recognition that no hydrants were shown on the Subdivision Plan, but that there were several detention basins on Locus, at least one of which could be used as a fire pond. It thus appears that Mello has properly challenged Costas presumption of standing, and the standing issue is open to all of the evidence.
As to traffic considerations, Costa has presented her own evidence and offered the testimony of Dulaski that the eighty-foot distance between the Braley Road Intersection and the Janice Marie Way Intersection did not meet the minimum spacing requirement. Dulaski further testifies that the minimum spacing requirements are based on human factors and driver error, and the fact that crashes are more prevalent at intersections. Assuming all nine lots were developed in the Subdivision, Dulaski estimated 1176 vehicle trips on a typical weekday entering and exiting Janice Marie Way, and concluded that the additional volume and short distance between intersections would increase the potential for traffic accidents. Such evidence satisfies Costas burden of providing credible evidence, for it provides factual support for Costas claims and is of a type that a reasonable person might rely upon to link Costas alleged injury to the Subdivision.
Conversely, Costa fails to present a plausible claim of injury relative to water supply issues. Costa did not introduce any credible evidence to substantiate her allegations of inadequate water supply. [Note 10] Costa failed to cite quantitative evidence to support her claims of particularized injury. Rather, her claims of inadequate domestic and fire-suppression water are speculative and therefore, inadequate to confer standing. See Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994) (referring to speculative personal opinions which are factually inadequate to establish aggrieved status). Furthermore, Costas claims regarding inadequate water fail to demonstrate how her injury is special and different from the concerns of the rest of the community. Barvenik, 33 Mass. App. Ct. at 132.
As a result, I find that Mello has not presented evidence that warrants a finding contrary to the presumed fact with respect to traffic, and that Costa is a person aggrieved within the meaning of G.L. c. 40A § 17, and therefore has standing to maintain an appeal of the Decision.
On appeal from the Decision, the court hears the evidence de novo and, on the facts found, determines the validity of the boards action on the basis of the reasons stated by the board. [Note 11] Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 478-479 (1955); Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104 , 106 (1991). The burden of proof is on the party challenging the planning boards action to establish that the board exceeded its authority and acted improperly. Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548 (1975). While a trial judge may not substitute his or her own judgment for that of the planning board, the boards decision will not be sustained where it has exceeded its authority under G.L. c. 41 §§ 81K-81GG (the Subdivision Control Law), as set forth in G.L. c. 41, § 81M. See Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 809 (1981) ([T]he role of the court is merely to ascertain whether the board exceeded its authority.); Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 24 (1977) (holding that [t]he judge should not have arrogated to himself the functions of the board of health or those of the planning board, or attempted to improve upon the work of either board).
The purpose of the Subdivision Control Law, is defined as providing for
[t]he provision of adequate access to all of the lots in a subdivision by ways that will be safe and convenient for travel; for lessening congestion in such ways and in the adjacent public ways; for reducing danger to life and limb in the operation of motor vehicles; for securing safety in the case of fire, flood, panic and other emergencies; for ensuring compliance with the applicable zoning ordinances or by-laws; for securing adequate provision for water, sewerage, drainage, underground utility services, fire, police, and other similar municipal equipment, and street lighting and other requirements where necessary in a subdivision; and for coordinating the ways in as subdivision with each other and with the public ways in the city or town in which it is located and with the ways in neighboring subdivisions.
G.L. c. 41, § 81M. Planning boards have no discretion over subdivision plans that are approved by the local board of health and comply with all applicable subdivision regulations. Ayer, 3 Mass. App. Ct. at 548. In general, however, a planning board has broad discretion to waive the requirements of its subdivision rules and regulations, where such waiver is in the public interest and not inconsistent with the intent and purpose of the subdivision control law. G.L. c. 41, § 81R; Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 85 (1976). Even so, a planning board is not required to grant a discretionary waiver. Miles v. Planning Bd. of Millbury, 404 Mass. 489 , 490 n. 4 (1989). See also McLaughlin v. Bd. of Selectmen of Amherst, 38 Mass. App. Ct. 162 , 171 (1995), affd 422 Mass. 359 (1996). G.L. c. 41, § 81R has been interpreted by several cases, giving considerable discretion to a planning board to grant waivers. See e.g., Arrigo, 12 Mass. App. Ct. at 807 (discretion over frontage requirements). Where the appeal of a waiver granted by a planning board is at issue, an appellant must prove that the board acted in a manner contrary to the public interest or the intent and purpose of the Subdivision Control Law. Windsor v. Planning Bd. of Wayland, 26 Mass. App. Ct. 650 , 657-58 (1998). While allegations that a planning board acted against the public interest are nearly insupportable, claims involving the intent of the Subdivision Control Law are more exacting. Id. The inconsistency must be substantial before a court will overrule a planning boards waiver. Waivers may be either express or implied. In the absence of an express waiver of regulations, a planning board must demonstrate, through conduct reflected in the record, that it purposefully consents to deviations from the regulations. Meyer v. Planning Bd. of Westport, 29 Mass. App. Ct. 167 , 171 (1990). I shall address each of Costas allegations relative to a violation of the Regulations.
A. Application of § IV(B) Streets and Roadways
Section IV(B)(1)(a) of the Regulations provides,
All streets in the subdivision shall be designed so that, in the opinion of the Planning Board, they will provide safe vehicular travel and an attractive street layout in order to obtain the maximum safety and amenity for future residents of the subdivision, and they shall be in accord with the Rules and Regulations of the Planning Board, Board of Selectmen, and the Highway Surveyor.
Section IV(B)(2) provides Recommended Street Design Standards, and stipulates that the minimum centerline offset shall be 150 feet for primary, major, secondary, and minor streets. The distance between the Braley Road Intersection and the Janice Marie Way Intersection is only eighty feet. Plaintiffs argue that Mello did not request a waiver of the 150 foot intersection offset required by the Regulations, and as a result the Board exceeded its authority when it allowed the reduced distance without granting a waiver.
Mello argues that section IV(B)(2) of the Regulations does not apply in this case because Janice Marie Way was a pre-existing roadway (prior to the subdivision) and the Regulations apply only to new subdivision streets. I disagree with Mellos characterization of Janice Marie Way as an existing way. The existing way serves as a private access road to a single lot; approval of the Subdivision Plan would transform the way into a subdivision road that would provide access to nine separate lots. Mello also argues that the paved connection of Old Braley Road and New Braley Road does not constitute an intersection within the meaning of the Regulations because both roads are part of the same road layout. I also disagree with Mellos contention that the intersection of Old Braley Road and New Braley Road is not an intersection. These are two separate paved roads, divided by a wooded buffer strip, which, though both located in the same public layout are both used for passage and intersect in a specific location. Mellos witness, Vanasse, also characterized Old Braley Road as a common driveway (providing access to four houses, including Costas), and therefore not subject to the Regulations because it is not a primary, major, secondary, or minor street. The Regulations, however, define minor street as a street which, in the opinion of the Board, is being used or will be used primarily to provide access to abutting lots, and which will not be used for through traffic, and way as synonymous with the terms road, street, highway, and avenue, and shall denote any such line or route for passage, whether public or private.
Notwithstanding the foregoing, Vanasse testified for Mello that, irrespective of whether the closeness of the two intersections violated the Regulations, the Subdivision was appropriately designed from a traffic safety point of view. Even though many of his traffic statistics were based on present use, he testified that a traffic projection for the full subdivision build-out would be approximately 3,000 cars a day, but that more traffic did not translate into more accidents if the geometry of the site, including sight distances, were adequate (which he states Locus has). Dulaski testified for Costa that the proximity of the intersections would cause a safety issue because of increased traffic and thus the potential for accidents. Ultimately, however, Dulaski failed to persuade this court that an increased potential for accidents would lead to actual accidents. Increased traffic alone does not mean there will be traffic safety issues. See Circle Lounge & Grille, Inc., v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949); Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372 , 376-77 (1988).
Moreover, the Board, by its conduct, granted a waiver of section IV(B)(2) of the Regulations. Meyer, 29 Mass. App. Ct. at 171 (we decide that, in approving a subdivision plan, a planning board is not required to specify and list in writing those rules and regulations which it has waivedalthough it assuredly is a desirable practice to do sosolely if the record discloses evidence of conscious waiver). The minutes of the August 16, 2005, Board meeting reflect that the intersection issue was discussed, that the Board felt there was no way to design the site without narrowing the distance between intersections, that the abutters on Old Braley Road could choose the other end of Old Braley Road for their access, and that the Board felt it could not deny the Subdivision Plan solely based on traffic on Braley Road. The Board is entitled to discretion in granting a waiver. The evidence in the instant case does not sustain Costas burden to demonstrate that the Board abused its discretion in allowing the waiver. As a result of the foregoing, I find that the Boards waiver of section IV(B)(2) of the Regulations was in the public interest and not inconsistent with the intent and purpose of the Subdivision Control Law.
B. Application of Sections IV(C)(2)(a)(2)-(6)
Section IV(C)(2)(a)(2) of the Regulations provides,
Water mains, with hydrants, valves and other fittings, shall be constructed and installed within the subdivision as necessary to provide to all lots therein adequate water supply for domestic and fire protection use . . . .
Section IV(C)(2)(a)(3) of the Regulations provides,
Potable water of quality and quantity acceptable to the Board of Health for domestic use, and fire protection with a minimum open hydrant flow of 500 gallons per minute shall be provided in each subdivision, at minimum residual pressure of 20 pounds per square inch . . . .
Section IV(C)(2)(a)(4) of the Regulations provides,
Public water mains shall be class 52 Cement Lined Ductile Iron pipe and shall not be less than twelve inches (12") in non-residential subdivisions and not less than eight inches (8") in residential subdivisions . . . . A Freetown Standard Hydrant shall be located at each street intersection and not more than three hundred and fifty feet (350') apart in all subdivisions . . . .
Section IV(C)(2)(a)(5) of the Regulations provides,
Each Freetown Standard Hydrant shall be served directly from the water main through a six inch (6) lateral connection . . . .
Section IV(C)(2)(a)(6) of the Regulations provides,
Where a public water system is located within four hundred feet of the subdivision, the subdivider shall connect to the public water system . . . .
1. Section IV(C)(2)(a)(6)
Mello requested a waiver of the requirement that the Subdivision connect to the municipal water main in favor of on-site private wells. The Commission advised against Mello tying into the municipal water line based upon the existing water pressure and concerns that the Subdivision would result in decreased municipal water pressure if linked to the main. [Note 12] The Board granted Mellos waiver of section IV(C)(2)(a)(6) after concluding that requiring Mello to tie into the water line would not be in the best interest of the town . . . . The Board is entitled to discretion in granting this waiver. See Mac-Rich Realty Constr., Inc., 4 Mass. App. Ct. at 85 (noting the general discretion due to subdivision waivers issued by a planning board). Furthermore, Plaintiffs did not offer expert testimony or other evidence to show that the waiver was improper. The record, however, in addition to recognizing concerns about water pressure, must reflect that the Board considered, or that the evidence in the trial de novo showed, the Subdivisions water in context of fire protection concerns as well. See G.L. c. 41, § 81M (stating that the purpose of the Subdivision Control Law includes securing safety in the case of fire . . . [and] securing adequate provision for . . . fire).
Moreover, section IV(C)(2)(a)(3) requires, in part, water for adequate fire protection as well as Board of Health approval for domestic water use. Mello argued that neither the Regulations nor the Subdivision Control Law require the applicant to provide detailed well information on the subdivision plans or during subdivision review. [Note 13] Mello also emphasized the conclusions reached by the Board at the August 9 and 16, 2005 hearings, that the issue of whether the Subdivision would have a sufficient amount of domestic water to run the site was a Board of Health issue. [Note 14]
In the context of fire protection, the record is ambiguous with regard to precisely which Town agency has jurisdiction over general fire protection, and further review is necessary to determine whether the Board purposefully waived their fire protection obligations. Such evidence is found in the Boards minutes, the approval of the Subdivision Plan by the Towns Commission and Fire Department, and the trial transcript.
The Boards minutes from their August 16, 2005, meeting indicate that the issue of fire protection was discussed. These minutes note: There is no evidence that there is not a sufficient amount of water for fire . . . . Furthermore, the minutes show that John Mello stated that there is a fire pond on site. Additionally, the record implies that both the Commission and the Fire Department approved Mellos Subdivision, either explicitly or constructively. The Commission, in a memo dated October 28, 2003, stated that they were not opposed to a waiver of a water line. The Commission continued: If, in the future, a problem develops with the wells (i.e. quantity or quality of water), the owners [would be responsible for any resulting costs associated with tying-in to the town water]. This memo fails to specifically note any concern with fire suppression water. [Note 15] Similarly, through a Form L Referral Form, dated July 18, 2005, the Board notified various Freetown agencies of Mellos Subdivision Plan and asked for specific review of the plans water system and fire protection. The Fire and Water Departments were included in this notice. The Commission responded with a Form L-1, Plan Review Report Form, in which it stated it had no concerns with the Subdivision Plan. The record fails to include any response from the Fire Department.
The above facts, by themselves, do not convince this court that the Board adequately considered the Subdivisions water supply in the context of fire protection. The record, including evidence gathered at trial, fails to establish a satisfactory nexus between the Regulations and the Subdivision Control Laws requirements for fire protection and the Subdivisions ability to provide such protection via either a sprinkler system or a fire pond. McKenzie, for example, testified at trial that a well could be used in conjunction with a sprinkler system to provide fire protection for buildings. However, in addition to the fact that a sprinkler system was not part of the Subdivision Plan, McKenzie did not testify that such a system would be effective on Locus, only that such systems were possible. As this testimony was provided at trial, nothing in the record indicates that the Board considered such evidence in their Decision. Furthermore, while Mello testified at trial as to the presence of a pond on Locus that could be used as a fire pond, he did not provide sufficient details to sway this court that the pond would provide the Subdivision with an adequate water supply for fire protection or how such water would be used. [Note 16]
As a result of the foregoing, I find the Boards waiver of section IV(C)(2)(a)(6) of the Regulations inconclusive. However, under a de novo standard of review, it appears possible that further findings by the Board as to fire protection could justify a valid waiver of section IV(C)(2)(a)(6) of the Regulations and comply with the purpose and intent of the Subdivision Control Law. As such, I remand the issue of whether the Subdivision Plan provides adequate water for fire protection to the Board for a new public hearing consistent with this decision.
2. Sections IV(C)(2)(a)(2)-(5)
Mello did not request an express waiver of sections IV(C)(2)(a)(2)-(5) of the Regulations. Costa argued that irrespective of the waiver granted with respect to section IV(C)(2)(a)(6) of the Regulations, the remaining sub-sections of section IV(C)(2)(a) apply. Costa maintained that there is a valid safety concern in that the Subdivision Plan does not show fire hydrants, shows only one well, and does not specify what will be done with regards to fire protection in order to comply with the water quality and water pressure requirements of the Regulations. [Note 17] Mello, on the other hand, contended that when the Board expressly waived section IV(C)(2)(a)(6), it implicitly waived the remaining subsections of the Regulations that governed municipal water system infrastructure. Mello argued that a municipal water main connection was required to comply with the remaining subsections and that when the Board waived the water main connection, they also waived any regulations that were dependent upon that water main connection.
As previously stated, implied waivers will be found valid if the record shows a planning board purposefully consent[ed] to deviate from regulations. Meyer, 29 Mass. App. Ct. at 171. As such, this court must determine whether evidence in the record supports Mellos contention that the Board intended to waive all subsections of section IV(C)(2)(a), and whether the waiver[s] [are] consistent with the public interest. Id. at 172. As discussed, supra, this court must first find that the waiver of Section IV(C)(2)(a)(6) was justified. In the event that the Board makes such a finding, I find that the Board implicitly waived sections IV(C)(2)(a)(2), (3), (4), and (5) of the Regulations, as I interpret sub-sections (2), (3), (4), and (5) as all contingent on a connection to the public water system. Based on this interpretation, I find that, with the conditions stated above, the Board did not exceed its authority in granting implied waivers of sections IV(C)(2)(a)(2), (3), (4), and (5) of the Regulations.
C. Application of § IV(J) Trees
Section IV(J)(1) of the Regulations provides,
Deciduous street trees (species to be submitted and approved of by the Planning Board and Tree Warden) shall be planted on each side of each street in a subdivision, except where the Definitive Plan shows trees to be retained which are healthy and adequate. Such trees shall be located five feet (5') outside of the right of way, two trees per forty foot (40') intervals (one tree every twenty feet (20'); alternating sides of street, and shall be at least twelve feet (12') in height, two inches (2") in caliper measured four feet (4') above the approved grade, and shall be planted each in at least one-half (½) cubic yard of topsoil unless otherwise required by the Tree Warden.
Section IV (J)(2) of the Regulations provides,
The developer shall plant other trees as needed to provide at least one (1) area of shade to each lot.
Mello requested and received a waiver from section IV(J)(1) of the Regulations. He did not request a waiver of section IV(J)(2), and Plaintiffs argue that Mello did not meet this requirement of the Regulations. Mello emphasized the Boards conclusion, reached at the August 16, 2007, hearing that: (1) any new trees would not mitigate the situation for the residential areas (due to the small size of the trees required under the Regulations); (2) such trees would have minimal impact on dust and noise; and (3) such trees were not in the best interest of the Town because of maintenance issues. The Board also noted that approval of the Subdivision Plan requiring paving of the subdivision road would be the best way to control dust. Plaintiffs did not submit evidence to show that the Board exceeded its authority under the Subdivision Control Law in non-compliance with this section of the Regulations. The Board by its conduct granted a waiver of the provision, (see Meyer, 29 Mass. App. Ct. at 167), and this waiver went hand in hand with the waiver of section IV(J)(1) of the Regulations. As such, I find that the Boards waiver of section IV(J)(2) is in the public interest and not inconsistent with the intent and purpose of the Subdivision Control Law.
As a result of the foregoing, the Boards implied waivers of sections IV(B)(2) and IV(J)(2) of the Regulations were in the public interest and not inconsistent with the intent and purpose of the Subdivision Control Law. However, the Boards explicit waiver of section IV(C)(2)(a)(6) of the Regulations is not affirmed, but remanded to the Board for determinations consistent with this decision. [Note 18] This remand shall take place within thirty (30) days of the date of this decision, and the Board shall act in an expeditious manner relative to same. This court shall retain jurisdiction in the event that any further action is required. Judgment shall enter upon final action by the Board.
Alexander H. Sands, III
Dated: October 16, 2008
[Note 1] Costa is the only abutter to Locus or abutter to an abutter within 300 feet of Locus. All of the other Plaintiffs are residents of Freetown, but Dias was the only other Plaintiff to offer testimony at trial.
[Note 2] Representatives of the Board did not attend the trial.
[Note 3] By report to the Board dated May 12, 2003, the Commission stated that it has concerns - problems with existing pressure [in the municipal water system in the vicinity of Locus].
[Note 4] Plaintiffs allege that only one well is shown on the Subdivision Plan.
[Note 5] Plaintiffs did not challenge the remaining thirteen waivers.
[Note 6] The minutes of several Board meetings reflect their recognition that no hydrants were shown on the Subdivision Plan, but that there were several detention basins on Locus, at least one of which could be used as a fire pond. The record indicates that both parties agreed to allow the Boards minutes in as trial exhibits.
[Note 7] On cross-examination Dulaski testified that his original opinion was based on a different plan, and that he had never designed any type of subdivision, residential or industrial. He also testified that his figures came from ITE manuals, and not from empirical data.
[Note 8] The Regulations do not define shade.
[Note 9] Parties in Interest is defined in G.L. c. 40A, § 11 as:
The petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list . . . . The assessors maintaining any applicable tax lists shall certify to the permit granting authority or special permit granting authority the names and addresses of parties in interest and such certification shall be conclusive for all purposes.
[Note 10] For example, at trial Costa testified that she was afraid of fires and referenced a past fire in the area; she noted that she was afraid because of the inadequate amount of water we have. Similarly, Dias testified as to the neighborhoods alleged inadequate water but his testimony was generalized in nature. Finally, Dulaski, Costas traffic expert, did not introduce any quantitative evidence regarding the water supply.
[Note 11] G.L. c. 41, § 81R states: A planning board may in any particular case, where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision law, waive strict compliance with its rules and regulations . . . .
[Note 12] The Commission stated in an October 28, 2003 memo that because it had concerns with existing water pressure, it was not opposed to the Board granting a waiver of a water line tie-in.
[Note 13] Nonetheless, Mello submitted copies of four well construction applications dated January 4, 2000; April 19, 2005; June 16, 2005; and August 19, 2005. Each of the applications was approved by the Board of Health and included the required analysis for purity. In each case the water met EPA standards.
[Note 14] The domestic water use is not the key issue. G.L. c. 41 § 81U provides in part:
When a definitive plan of a subdivision is submitted to the planning board, as provided in section [81 O], a copy thereof shall also be filed with the board of health . . . . Such health board . . . shall, within forty-five days after the plan is so filed, report to the planning board in writing, approval or disapproval of said plan . . . . Failure of such board . . . to report shall be deemed approval by such board . . . .
Mello filed his definitive plan with the Board of Health on May 24, 2005. The Board of Health did not hold any hearing, or respond to the Board, concerning Mello's definitive plan within the forty-five day statutory period. Because of this non-action, the Board of Health is deemed to have approved the definitive plan and [a] planning board has no discretion to disapprove a subdivision plan which has been approved by the board of health and is in conformance with the reasonable rules and regulations of the planning board. MP Corp. v. Planning Bd. of Leominister, 27 Mass. App. Ct. 812 , 819-20 (1989).
However, the scope of the Board of Health's constructive approval can only reach the domestic water requirements of section IV(C)(2)(a)(3); this sub-section's fire protection requirements are beyond the jurisdiction of the Board of the Health. While G.L. c. 41 § 81U fails to delineate the scope of a board of healths jurisdiction, during trial McKenzie indicated that the Board of Healths regulations do not extend to fire protection, and such testimony was not contested. As such, the Board of Health's approval cannot be relied upon as evidence that the Board consciously waived section IV(C)(2)(a)(3)s mandate requiring water for fire protection. Therefore, this court must ask whether the record provides other evidence that the Board purposefully consented to the waiver.
[Note 15] The Commissions rules and regulations were not part of the record. As such, this court was unable to clarify the scope of the Commissions jurisdiction over fire suppression matters.
[Note 16] At trial, Mello testified that the fire pond had nothing to do with the approval of the Subdivision Plan, and that he was under no obligations to maintain the fire pond to any specifications, as part of the Subdivision Plan.
[Note 17] Plaintiffs point out that Bourgeois testified that the wells had a yield of twenty gallons per minute, far inferior to the required flow of a hydrant at 500 gallons per minute. Plaintiffs also note that McKenzie testified that the cited water pressure for a fire hydrant would be almost impossible for a well to produce, and that the Subdivision Plan showed only one well for the entire forty acres.
[Note 18] As discussed, supra, the implied waivers of sections IV(C)(2)(a)(2)-(5) are affirmed provided that the Board affirms Mellos requested waiver of section IV(C)(2)(a)(6) of the Regulations.