At issue in this case is the plaintiffs, Gary and Mary Sackrider, attempts to subdivide their six-acre property located at 154 Spofford Road in Boxford. After voluntarily withdrawing a short road subdivision plan from consideration, the plaintiffs submitted a definitive subdivision plan to the defendant Boxford Planning Board (the board). After the board failed to take final action within 135 days, it purported to disapprove the plan and rescind any constructive approval of such plan on January 21, 2004. Since that meeting was not properly noticed, the board again voted to rescind constructive approval on February 11, 2004.
The plaintiffs have appealed from the boards actions under several theories. Count one is the plaintiffs appeal under G.L. c. 41, § 81BB, claiming they are aggrieved by the boards refusal to recognize that their subdivision plan was constructively approved due to the boards failure to take final action within 135 days after the submission of their definitive subdivision plan, as required by G.L. c. 41, § 81U. Count two is the plaintiffs appeal from the boards January 21, 2004 rescission of the constructive approval. The plaintiffs claim that proper notice was not given and the reasons given by the board for rescinding the approval are not valid. Count three is the plaintiffs appeal of the boards February 11, 2004 rescission of the constructive approval. The plaintiffs claim that the board is estopped from rescinding its approval, the plan met all the requirements of the subdivision control law and Board of Health requirements, and the rescission exceeded the authority of the Board, was arbitrary, unreasonable, an abuse of discretion and contrary to the subdivision control law. Third Amended Complaint at 8 (Feb. 8, 2006). Count four is the plaintiffs request for a declaratory judgment under G.L. c. 240, § 14A and c. 231A, §1. The plaintiffs claim that the Town of Boxford Zoning Bylaws (the Bylaw) provision regarding irregularly shaped lots (§ 196-24.K) prohibits the plaintiffs from subdividing their property, wastes their land and constitutes an arbitrary, unreasonable, and oppressive deprivation of plaintiffs private property interests. Id. at 10. They also claim that the provision is invalid in that the bylaw is arbitrary, unreasonable and does not serve legitimate government purposes both on its face and as applied . . . . Id. The plaintiffs also argue that Bylaw § 196-24.K violates the requirements of G.L. c. 40A, § 4, creates spot zoning, and is exclusionary. Finally, count five is the plaintiffs request for a declaratory judgment that their application for a permit under the Scenic Roads Act to cut down four trees and remove stones for their subdivision was constructively approved.
The defendants contend that regardless of the boards failure to act within 135 days or properly notice the January meeting, the board properly rescinded any constructive approval of the plaintiffs plan. They also contend that Bylaw § 196-24.K is valid and that there was no constructive approval of the plaintiffs Scenic Roads Act application.
Both parties have moved for summary judgment. [Note 1] For the reasons set forth below, I first find and rule that the plaintiffs definitive subdivision plan was not constructively approved. Second, I find and rule that although the boards January 21, 2004 actions were not valid, the February 11, 2004 rescission was proper and within the boards authority. Third, I find and rule that Bylaw § 196-24.K is a reasonable provision that serves a legitimate government purpose and is therefore valid as applied and on its face. Fourth and finally, I find and rule that the boards decision to defer ruling on the plaintiffs Scenic Roads Act application until a final subdivision plan (with a final road layout) is approved was reasonable and within its allowable discretion and thus the application was not constructively approved.
Summary judgment is appropriately entered when there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56; Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976). The following facts are not in dispute.
The plaintiffs, Gay and Mary Sackrider, own the six-acre property located at 154 Spofford Road in Boxford. In 2002, the plaintiffs sought to subdivide that parcel into two lots. They first attempted to do so by present[ing] a short road cul-de-sac subdivision plan [Note 2] (the short road plan) on an informal basis to the board in February 2003. Third Amended Complaint at 3, ¶ 10 (Feb. 8, 2006). After an initial site visit with the board, it became clear that the plaintiffs would have to obtain a variance in order to obtain approval of the short road plan since the proposed lots violated Bylaw § 196-24.K, the irregularly shaped lots provision. [Note 3] At the Zoning Board of Appeals (the ZBA) June 26, 2003 public hearing on the plaintiffs application for a variance, ZBA members expressed concern that the plaintiffs had created the hardship themselves, noted that the [ZBA] doesnt take variances lightly[,] and [requested] a brief filed and citations in support of the request. Town of Boxford, Minutes of the Boxford Zoning Board of Appeals (June 26, 2003). The ZBA also requested that the plaintiffs obtain a recommendation from the planning board regarding the plan and continued the public hearing to July 24, 2003. Id. At the July 24th meeting, Mr. Sackrider requested permission to withdraw the variance application, which the ZBA granted without prejudice to a later resubmission.
On September 3, 2003, the plaintiffs filed a definitive subdivision plan with the board, which again depicted two lots (reconfigured from the short road plan) and a new road that was over 600 feet long. This plan conformed to Bylaw § 196-24.K. The plaintiffs did not, however, file it with the Board of Health as G.L. c. 41, § 81U and The Town of Boxford Code: Subdivision Rules and Regulations § 300-11.E.(1) (the Rules and Regulations) require. The board circulated the plan to other town officials for comment, including the Conservation Commission and the Board of Health, pursuant to Rules and Regulations § 300-11.E.(2)(a). [Note 4] In order to carry out their proposed subdivision plans, the plaintiffs also filed a written request for a permit under the Scenic Roads Act on October 28, 2003. Specifically, the plaintiffs sought permission to remove four trees and fifty feet of a stone wall in order to create an unobstructed opening for a future roadway (referred to on other plans currently before the Boxford Planning Board as Sleepy Hollow Lane on property of the undersigned). Letter from Gary Sackrider to Leonard E. Phillips, Planning Administrator (Oct. 28, 2003).
After the first public hearing on the plaintiffs definitive subdivision plan on September 3, 2003, several subsequent meetings took place. At the boards November 19, 2003 meeting, the board and abutters discussed whether the Scenic Road Permit could be subject to the condition that no work could occur until the board voted to approve the subdivision and no appeals had been filed. Town of Boxford, Minutes of the Boxford Planning Board (Nov. 19, 2003). The board, with agreement from the plaintiffs, postponed making a decision until their December 17, 2003 meeting. At that meeting, the board and the plaintiffs were unable to agree on how to write the conditional permit. As a result, the board voted to postpone the decision until such time as the 154 Spofford Road subdivision is completely approved and all appeal periods have been concluded . . . . Town of Boxford, Minutes of the Boxford Planning Board (Dec. 17, 2003). Also at the December meeting, the board requested that the plaintiffs file a Request for Determination with the Conservation Commission. The plaintiffs refused to do so, claiming that the boards demand was unreasonable and late. The board continued the hearing until January 21, 2004 or until a joint meeting with the Conservation Commission occurred as part of the Request for Determination.
At the boards regularly scheduled meeting on January 21, 2004, without proper notice to the plaintiffs or the public, the board voted to rescind any constructive approval of the plaintiffs subdivision plan that might have occurred and also voted to disapprove the plan. The board filed a copy of its decision purportedly rescinding the constructive approval with the town clerk on January 22, 2004.
At a properly noticed February 11, 2004 meeting, the board again voted to rescind constructive approval of the subdivision plan. This decision was filed with the town clerk on February 19, 2004. The decision contained the same reasons for the denial as the January 21st decision. The plaintiffs timely appealed.
Other material facts are included in the analysis section below.
Count One: Constructive Approval of the Plaintiffs Definitive Subdivision Plan
G.L. c. 41, § 81U provides the following:
When a definitive plan of a subdivision is submitted to the planning board, as provided in section eighty-one O, a copy thereof shall also be filed with the board of health or board or officer having like powers and duties. Such health board or officer shall, within forty-five days after the plan is so filed, report to the planning board in writing, approval or disapproval of said plan, and, in the event of disapproval, shall make specific findings as to which, if any, areas shown on such plan cannot be used for building sites without injury to the public health, and include such specific findings and the reasons therefore in such report, and where possible, shall make recommendations for the adjustments thereof. Failure of such board or officer to report shall be deemed approval by such board or officer.
* * *
After the hearing required by section eighty-one T and after the report of said health board or officer or lapse of forty-five days without such report, the planning board shall approve, or, if such plan does not comply with the subdivision control law or the rules and regulations of the planning board or the recommendations of the health board or officer, shall modify and approve or shall disapprove such plan.
* * *
In the case of a subdivision showing lots in a residential zone, where no preliminary plan has been submitted and acted upon or where forty-five days has not elapsed since submission of such preliminary plan, and a definitive plan is submitted, the failure of a planning board either to take final action or to file with the city or town clerk a certificate of such action regarding the definitive plan submitted by an applicant within one hundred thirty-five days after such submission, or such further time as may be agreed upon at the written request of the applicant, shall be deemed to be an approval thereof. Notice of such extension of time shall be filed forthwith by the planning board with the city or town clerk.
(emphasis added). The Rules and Regulations likewise require the applicant to file copies of the definitive plan with the board and the Board of Health. Rules and Regulations § 300-11.E.(1).
Here, it is undisputed that the plaintiffs failed to file the definitive plan with the Board of Health. Thus, there was never constructive approval of the plan. Although G.L. c. 41, § 81U is silent as to who must file the definitive plan with the Board of Health and here it is undisputed that the board, on its own, forwarded a copy of the plan to the Board of Health for comment, the Supreme Judicial Court has ruled that it is [t]he applicant, however, [who] must submit his definitive plan to both the planning board and the board of health in order to comply with § 81U. Paul Livoli, Inc. v. Planning Bd. of Marlborough, 347 Mass. 330 , 335 (1964) (emphasis added); [Note 5] see also Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 175 (1977) (The first sentence of G.L. c. 41, § 81U . . . requires a developer to submit a copy of his definitive subdivision plan to the board of health when he submits the original of the plan to the planning board. (emphasis added)). Furthermore, as noted above, Rules and Regulations § 300-11.E.(1) clarifies any possible ambiguity by explicitly requiring the applicant to file copies of the definitive subdivision plan with the Board of Health.
As numerous cases have outlined,
[t]he intention of relevant sections of the Subdivision Control Law is to set up an orderly procedure for definitive action within stated times, and for notice of that action in offices of record within stated items, so that all concerned may rely upon recorded action or the absence thereof within such times.
Bd. of Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120 , 125 (1964); see also Korkuch v. Planning Bd. of Eastham, 26 Mass. App. Ct. 307 , 308 (1988). Here, the statutory requirements for the Board of Health are initiated by the developer/applicant submitting the proper files with the Planning Board and the Board of Health. Since the plaintiffs failed to file the plan with the Board of Health, the forty-five day time period for the Board of Health to issue a decision was never triggered. As a result, the boards requirement to act on such plan also was never triggered. G.L. c. 41, § 81U (After the hearing required by section eighty-one T and after the report of said health board or officer or lapse of forty-five days without such report, the planning board shall approve, or, if such plan does not comply with the subdivision control law or the rules and regulations of the planning board or the recommendations of the health board or officer, shall modify and approve or shall disapprove such plan.). Essentially, the plaintiffs never filed a complete application for review of its definitive plan of a subdivision.
The plaintiffs argue that such an error should not be fatal since the Board of Health received a copy of the definitive subdivision plan from the board pursuant to Rules and Regulations § 300-11.E.(2). That section of the Rules and Regulations states that the board shall transmit copies of the plan to several town officials, including the conservation commission, the fire department, and the Board of Health. It further states that [b]efore a definitive plan is approved, the Board will request written statements from the above officials with regard to the proposed improvements . . . . Rules and Regulations § 300-11.E.(2)(b) (emphasis added). However, under subsection (b), which lists each official and the specific information that official should provide after receiving the boards transmittal, the Rules and Regulations notably do not request any information from the Board of Health. [Note 6] The reason for that is simple. The Board of Health is required to respond only after it receives a formal filing from the applicant pursuant to Rules and Regulations § 300-11.E.(1). Using this procedure, the town can be assured that the Board of Health receives a complete and proper copy of the plan and its associated information.
Rules and Regulations § 300-11.E.(2) also does not provide a timeframe by which the board must transmit copies of the plan to various officials and there is neither a requirement in subsection (b) that the town officials provide responsive information to the board nor any consequence for failure to do so (unlike G.L. c. 41, § 81U). As such, this provision of the Bylaw appears to contemplate a procedure whereby certain town officials may, but are not required to, provide comments on the proposed subdivision. Since G.L. c. 41, § 81U and Boxfords Rules and Regulations independently require the applicant to submit plans to the Board of Health, the fact that the Board of Health received copies of such plans from the board does not correct the plaintiffs error. Although the board requested comment from the Board of Health (among other town officials), the plaintiffs did not formally apply to the Board of Health for review of such plan and the Board of Health was therefore not formally required to do so as contemplated by § 81U and the Rules and Regulations. [Note 7]
Since the plaintiffs essentially did not file a complete application for review, the constructive approval clock for the board to review the definitive subdivision plan was never triggered. Accordingly, the 135 days never expired and, as a result, the plan was never constructively approved. See generally Korkuch v. Planning Bd. of Eastham, 26 Mass. App. Ct. 307 , 308-09 (1988) (where the plaintiff failed to file notice with the town clerk when he submitted his plan under G.L. c. 41, § 81T, the court found that he was not entitled to an endorsement [of the plan] by the board or a certification from the town clerk that the board had constructively determined that approval under the subdivision control law was not required).
Counts Two and Three: the Boards Rescission of Constructive Approval
Although I need not reach counts two and three since I find there was no constructive approval of the plaintiffs definitive subdivision plan, I do so for completeness of the record.
If there had been constructive approval, [Note 8] the record is clear that the boards purported disapproval of the subdivision plan and the purported rescission of the constructive approval, if any, of that plan at the January 21, 2004 meeting (the subject of Count Two) were improper. Although the board indicated at the December 17, 2003 meeting that it was continuing the hearing until either the January 21, 2004 meeting or until the plaintiffs initiated a meeting with the conservation commission as part of a request for determination, this was not an effective extension of the matter under G.L. c. 41, § 81U. Craig v. Planning Bd. of Haverhill, 64 Mass. App. Ct. 677 , 680 (2005) (Filing the minutes of the meeting, in which the extension was discussed, cannot serve as adequate notice under § 81U, as it does not provide the kind of notice necessary for an interested party to ascertain her rights.). This is particularly so since the extension was not agreed upon at the written request of the applicant . . . . G.L. c. 41, § 81U. The failure to publish notice indicating that the board would be considering the plaintiffs plan at the January 21, 2004 meeting made ineffective its purported rescission of the definitive plan . . . . Young v. Planning Bd. of Chilmark, 402 Mass. 841 , 844 (1988). In addition, the occurrence of a constructive approval renders any subsequent filing, whether of approval or disapproval of a plan, a nullity. Windsor v. Planning Bd. of Wayland, 26 Mass. App. Ct. 650 , 655 (1988). Accordingly, the boards actions at the January 21, 2004 meeting were not valid and the plaintiffs would be entitled to summary judgment on Count Two had there been constructive approval.
Although the board did not properly disapprove the plan or rescind constructive approval at the January meeting, the board was still entitled to rescind constructive approval at a later date if there was proper notice and a public hearing. Young, 402 Mass. at 844. Under G.L. c. 41, § 81W, [a] planning board, on its own motion or on the petition of any person interested, shall have power to modify, amend or rescind its approval of a plan of a subdivision . . . . [Note 9] As cases have pointed out, § 81W does not describe the circumstances in which a planning board may [rescind its approval]. Young, 402 Mass. at 845. Presumably a planning board may not without good reason rescind approval of a definitive plan. Id. at 846 (citing Baker v. Planning Bd. of Framingham, 353 Mass. 141 , 144-45 (1967)).
Here, the board unanimously voted to rescind any constructive approval at the February 11, 2004 meeting. Town of Boxford, Minutes of the Boxford Planning Board (Feb. 11, 2004). In its decision, the board listed thirty reasons for doing so:
1. Insufficient evidence submitted relating to wetland resource areas at the site and impacts of alteration of wetlands onsite and offsite caused by the development;
2. Failure to delineate all wetland resource areas as required by the regulations;
3. Insufficient evidence submitted showing mitigation of flooding, alteration of onsite vernal pool, and flooding of adjacent properties;
4. Insufficient evidence submitted regarding mitigation of existing drainage problems;
5. Insufficient evidence submitted regarding mitigation of elevated groundwater flow as a result of construction impacts;
6. Insufficient evidence submitted regarding potential tree damage and trespass as to properties adjacent to proposed roadway;
7. Failure to file a septic system design;
8. Failure to file Definitive Subdivision Plans with Board of Health;
9. Failure to obtain recommendation from Board of Health;
10. Failure to provide soils analysis and percolation test data for the roof recharge area as well as an analysis of the effectiveness of the infiltration and storm water recharge;
11. Failure to file notice with Natural Heritage and Endangered Species Program relative to priority habitat as required by the Subdivision Rules and Regulations;
12. Failure to propose mitigation measures regarding alteration of endangered species habitat and vernal pool at the project site;
13. Failure to comply with Boxford Zoning Bylaw as the 200-foot circle for the existing residence impermissibly encroaches within the 50-foot front setback pursuant to Section 196-24.D(2);
14. Failure to file a Notice of Intent with the Conservation Commission or ANRAD data (test bores supervised by Cons Comm.) to verify accuracy of wetlands boundaries as required by the Subdivision Regulations;
15. Failure to locate property owner Reids well at 157 Spofford Road, on the Subdivision Plan;
16. Failure to locate the path of buried utilities in accordance with regulations pertaining to new subdivisions;
17. Failure to indicate the location of the required sub-terrain fire/water reserve tank as required for new subdivisions;
18. The existing well for new Lot 1 will be non-conforming and is within 50 feet of the proposed public road;
19. Failure to comply with zoning in that the well for Lot 2 appears to be within 80 [feet] of a wetland resource area and the 200 ft circle encroaches within the 50 foot setback for a wetlands;
20. The original Environmental Impact Statement is outdated, having been invalidated by the new discovery from the test borings supervised by Fred Geisel, PE and subsequent major re-design of road elevations and water run-off flows, as a result, the impact statement fails to provide sufficient information to make conclusions about the effect on the environment such as drainage, flood and groundwater levels;
21. Insufficient evidence submitted regarding compliance with roadway design standards;
22. Failure to provide sufficient information regarding potential damage to vernal pool and adjacent residential wells regarding detention basin on Lot 1;
23. Failure to show all natural features required by the regulations;
24. Failure to provide location of adequate fire tanks on plan;
25. Failure to show existing easements on the plan;
26. Failure to provide adequate drainage system regarding Basin C;
27. Failure to address high ground water mitigation as it effects Basins A and B;
28. Failure to obtain recommendations from Police, Fire and DPW;
29. Failure to provide written responses to comments regarding plan noncompliance submitted by towns engineer VHB and consultant Fred Geisel, PE; and
30. Failure to submit payment in escrow for towns engineering and hydrological consultant pursuant to the regulations which constitutes grounds for denial.
Letter from Robert C. Gore, Chairman to Patricia Shields, Town Clerk (Feb. 12, 2004 and filed at the town clerks office on Feb. 19, 2004) (hereinafter, the Decision).
This list of thirty reasons for rescission clearly meets G.L. c. 41, § 81Us requirement that the board state in detail wherein the plan does not conform to the rules and regulations of the planning board . . . . See Pinecrest, Inc. v. Planning Bd. of Billerica, 350 Mass. 336 , 339 (1966) (where the board filed a certificate of final action stating Disapproved Improper Drainage, there was no constructive approval of the definitive subdivision plan despite the board not sending notice to the developer); see also Bobrowski, Handbook of Massachusetts Land Use and Planning Law 494, n.62 (2d ed. 2002) (The requirement of a statement in detail sets an arguably low threshold. (citing Pinecrest, Inc. v. Planning Bd. of Billerica, 350 Mass. 336 , 337-39 (1966)). [Note 10] The question on appeal is whether the reasons stated by the planning board . . . were within the scope of its authority under its rules and regulations. Mass. Broken Stone Co. v. Planning Bd. of Weston, 45 Mass. App. Ct. 738 , 742 (1998). The burden is on the plaintiffs to show that the board acted improperly in rescinding the constructive approval of the plan. Lakeside Builders, Inc. v. Planning Bd. of Franklin, 56 Mass. App. Ct. 842 , 845 (2002) (citing Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548 (1975)).
Several of the boards reasons for rescinding the plan were within the scope of its authority under its rules and regulations, Mass. Broken Stone Co., 45 Mass. App. Ct. at 742, or under the zoning bylaw [Note 11] based upon the undisputed facts before me. As noted above, the plaintiffs did not submit the definitive subdivision plan to the Board of Health for review. Both G.L. c. 41, § 81U and Rules and Regulations § 300-11.E require the applicant to file such plans with the Board of Health. [T]he determination of all health questions with respect to the disposal of sewage in a subdivision . . . is vested exclusively in the board of health. Vitale v. Planning Bd. of Newburyport, 10 Mass. App. Ct. 483 , 485 (1980) (quoting Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 176 (1977)) (alteration in original). The failure of the plaintiffs to file their plan with the Board of Health thus is significant, resulting in no review of whether the proposed development will impact public health with regards to sewage disposal.
Under reason number 13, the board notes that the plaintiffs plan does not comply with Boxford Zoning Bylaw as the 200-foot circle for the existing residence impermissibly encroaches within the 50-foot front setback pursuant to Section 196-24.D.(2). Decision at ¶14. That section states that [e]ach lot for residential use in an R-A Residence-Agricultural District shall contain a minimum diameter area of 200 feet within which any dwelling shall be built, subject to all setback and other provisions of this bylaw. Bylaw § 196-24.D.(2)(a). It further states that [e]ach lot for residential use in an R-A Residential-Agricultural District shall have a minimum depth of at least 50 feet along its minimum required frontage for a minimum of 200 contiguous feet along such frontage. Id. at § 196-24.D.(2)(c). Lots in the R-A Residence-Agricultural District also have a front yard setback of fifty feet. Id. at § 196-24.E.(1). It is undisputed that the 200-foot circle surrounding the existing building on Lot 1 is less than fifty feet from the proposed road. Plan of Land, Definitive Subdivision at 154 Spofford Road in Boxford, Mass. (Aug. 15, 2003). The boards interpretation that the 200-foot circle (not just the location of the building) is also subject to the fifty-foot setback requirement is a reasonable reading of § 196-24.D.(2) and is therefore a valid justification for rescinding the constructive approval of the plan. [Note 12]
The board also denied the plan for several reasons related to wetland resources on the plaintiffs property (numbers 1, 2, 14, 19). For example, the plaintiffs failed to file a Notice of Intent with the Conservation Commission (reason for denial number 14). Rules and Regulations § 300-11.B.(22) states that [t]he applicant shall simultaneously apply for a request for determination or notice of intent and receive a determination or order of conditions from the Conservation Commission for any wetland impacts resulting from the subdivision and present this information as part of the definitive plan process. Although the director of conservation initially stated that the boundaries of the southern wetlands appear to be correctly located on the plan and [n]o other wetland areas were observed on the site or within 100-feet of proposed disturbance, Letter from Ross Povenmire, Director of Conservation to Len Phillips, Planning Administrator (Oct. 20, 2003), subsequent information provided to the conservation commission and the board called this conclusion into question. In a subsequent letter, Mr. Povenmire indicated that a neighbor submitted a letter pertaining to the possible presence of wetlands in the westerly portion of the plaintiffs property. Letter from Ross Povenmire, Director of Conservation to Len Phillips, Planning Administrator (Dec. 10, 2003). Mr. Povenmire indicated that a GIS aerial photograph showed such wetlands and noted that [t]he GIS information is useful as an approximation of wetland boundaries, but is not necessarily accurate. Id. He therefore recommended that the plaintiffs have a wetlands scientist study this issue and, if necessary, delineate the boundaries on the property.
At the December board meeting, the board (in response to the new information) requested that the plaintiffs file a Request for Determination of Applicability. The plaintiffs refused to do so and contend that reason number 14 for denying their plan does not withstand factual scrutiny. They contend that according to the Long Road Subdivision Plan, no work was proposed in any wetlands resource area. As a result, the Sackriders did not need to make this submission. Plaintiffs Opposition to Defendants Cross Motion for Summary Judgment at 15 (Dec. 4, 2006) (citation omitted). This assertion ignores the fact that, prior to the expiration of 135-day review period, the conservation commission called into question the accuracy of the wetlands as depicted on the definitive subdivision plan. Whether or not there actually are wetlands in the western portion of the property is certainly a question of fact and is not proper for summary judgment. However, the fact that this was an issue calls into question whether the plaintiffs submissions were complete and complied with all of the regulations. For example, as the plaintiffs concede, if there were wetlands in the western portion of the property within 100 feet of the 200-foot development circle, the plaintiffs would have to amend their plans for Lot 2. Plaintiffs Opposition to Defendants Cross Motion for Summary Judgment at 9 (Dec. 4, 2006) (It has not yet been determined if this area in fact contains any wetlands. However, even if it does, there is room to move the 200-foot building circle and proposed well location to ensure that it is not within the 100 foot wetland boundary. (citations omitted)). A request for determination under Rules and Regulations § 300-11.B.(22) would aid in determining these issues. The plaintiffs refusal to file such a request was thus a valid reason for the board denying the plan. Similarly, the plaintiffs refusal to determine whether there are wetlands in the western portion of the property in the face of the conservation commissioners concerns shows that reason number one (insufficient evidence submitted relating to wetland resource areas) was yet another valid reason for the denying the plan.
The plaintiffs definitive subdivision plan also failed to locate an abutters well on its plan. Rules and Regulations § 300-11.B.(5) states that [m]ajor features of the land, such as . . . wells . . . which exist on or near the site at the time of the survey must be included on the plan. The plaintiffs contend that this provision is vague since there is no definition for the term near. In the absence of an express definition, the meaning of a word or phrase used in a local [bylaw] is a question of law and is to be determined by the ordinary principles of statutory construction. . . . We derive the words usual and accepted meanings from sources presumably known to the [by-laws] enactors, such as their use in other legal context and dictionary definitions. Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981) (internal citations and quotations omitted, second alteration in original). Blacks Law Dictionary defines near as [c]lose to; not far away, as a measure of distance
The board had more than one valid reason for rescinding the constructive approval of the plaintiffs definitive subdivision plan. [Note 13] Accordingly, the defendants are entitled to summary judgment on Count Three. Count Four: the Irregularly Shaped Lot Bylaw Provision
Bylaw § 196-24.K provides the following:
(1) Following acceptance of this subsection, no lot for residential use shall be laid out which is irregular in shape:
(a) A lot with at least 250 feet of street frontage is substantially irregular in shape if the area of the lot is less than 50% of the area of a square lot of the same perimeter.
(b) A lot with less than 250 feet of street frontage is substantially irregular in shape if the area of the lot is less than 20% of the area of a square lot of the same perimeter.
(2) The aforementioned percentage standards may be applied to the entire lot or, at the discretion of the owner, to the minimum lot area which conforms to all other requirements of this bylaw. [Note 14]
The plaintiffs contend that this provision is unconstitutional, both as applied and on its face, and they seek a declaratory judgment to that effect under G.L. c. 240, § 14A and G.L. c. 231A, § 1.
Under G.L. c. 231A, § 1, in order to obtain a declaratory judgment, the plaintiff must present an actual controversy within the meaning of [that statute]. Stop & Shop v. Bd. of Registration, Pharmacy, 394 Mass. 1008 , 1008 (1985). [A]n actual controversy is present in cases where [o]wners . . . have been denied permits or have been threatened with enforcement proceedings. Id. (quoting Woods v. Newton, 349 Mass. 373 , 376 (1965)). Here, the plaintiffs voluntarily withdrew their application for a variance from Bylaw § 196-24.K. Accordingly, there is no actual controversy regarding that section and the plaintiffs are thus not entitled to a declaratory judgment under G.L. c. 231A, § 1.
However, the plaintiffs are entitled to judicial review of the bylaw under G.L. c. 240, § 14A. We view § 14A, a remedial statute, as intended to permit any landowner to petition for a decision concerning the validity or invalidity of any zoning restriction applicable to his land. Sturges v. Chilmark, 380 Mass. 246 , 249 (1980) (citations omitted). The primary purpose of proceedings under § 14A is to determine how and with what rights and limitations the land of the person seeking an adjudication may be used under the provisions of a zoning enactment in terms applicable to it, particularly where there is no controversy and hence no basis for other declaratory relief. Amberwood Development Corp. v. Bd. of Appeals of Boxford, 65 Mass. App. Ct. 205 , 208-09 (2005) (quoting Hansen & Donahue, Inc. v. Norwood, 61 Mass. App. Ct. 292 , 295 (2004)). Section 14A is to be broadly construed, although the burden is on the landowner to prove that the zoning regulation is unreasonable as applied to its property. Id. at 209 (citations omitted); see also Sturges, 380 Mass at 256. The landowner must show significant injury to its interest in the locus, i.e., that the [bylaw provision] is arbitrary, unreasonable, and oppressive. Amberwood Development Corp., 65 Mass. App. Ct. at 210 (citation omitted); see also Sturges, 380 Mass. at 256. When reviewing the constitutionality of a zoning bylaw, [e]very presumption is made in favor of the by-law, and, if its reasonableness is fairly debatable, it will be sustained. The plaintiffs have the heavy burden of showing a conflict with applicable constitutional provisions. Sturges v. Chilmark, 380 Mass. at256 (citations omitted).
The defendants have articulated two purposes for Bylaw § 196-24.K that they contend have a substantial relation to the public health, safety, morals, or general welfare. [Note 15] Sturges, 380 Mass. at 256 (quoting Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926)). Specifically, they have stated that § 196-24.K aims at (1) reducing density, limit[ing] overcrowding, and encourage[ing] the appropriate use of land within the zoning district and (2) ensuring adequate access to residential dwellings by regulat[ing] large lots with small amounts of frontage which will result in a pork chop shape. Defendants Brief in Opposition to Plaintiffs Motion for Summary Judgment and Defendants Cross Motion for Summary Judgment at 19-20 (filed Nov. 3, 2006).
The alleged purpose of preventing pork chop lots to ensure adequate access is dubious. The Bylaw permits larger lots (containing more than six acres) to have as little as fifty feet of frontage and a fifty-foot lot width all the way to the site of the dwelling on the lot, while smaller lots (containing two to six acres) must have more frontage and width. [Note 16] See note 14, supra.
However, the provision surely reduces density, prevents overcrowding and encourages more uniform use of residential property, all of which are permissible goals. Bylaw § 196-24.K clearly aids those purposes since it ensures a large buildable area. See note 14, supra. Zoning bylaws requiring large lots have been upheld as serving public interests such as preventing overcrowding of land, protecting natural characteristics, and for safety reasons. See, e.g., Simon v. Needham, 311 Mass. 560 , 563-64 (1942). The Boxford Master Plan emphasizes that the town aims to maintain the rural community character and that the lot size restrictions have served the Town well for over forty years, and there is no indication that the Townspeople wish to reduce this requirement. Boxford Master Plan at 1, 9. The irregular lot provision prevents landowners from attempting to create narrow or otherwise irregular lots that technically meet the minimum lot size (and perhaps frontage) by ensuring an adequate buildable lot area. While the method the Bylaw employs for doing so is somewhat unusual, the defendants have met their burden of articulating a reasonable basis for the endorsement. Sturges, 380 Mass. at 257; see also Schiffone v. Zoning Bd. of Appeals of Walpole, 28 Mass. App. Ct. 981 , 984 (199) (pork chop shaped lot may result in crowding of buildings). Since it is reasonable (within the very broad test that courts use to judge the reasonableness of bylaw provisions), the fact that better methods might exist to achieve these goals does not prevent the town from choosing this one.
The plaintiffs remaining challenges to the validity of Bylaw § 194-24.K also fail. Contrary to the plaintiffs assertions, Bylaw § 196-24.K does not prevent them from subdividing their land. They may do so by meeting the requirements of the Rules and Regulations and the Bylaw. If they cannot do so without violating § 196-24.K, they can apply to the ZBA for a variance. The statements made by the ZBA in this case do not conclusively establish that a variance will not be granted.
Also contrary to the plaintiffs assertions, Bylaw § 196-24.K does not waste their land. They currently have a single-family home on the property. The fact that subdividing their land might result in an additional property value of $400,000, [Note 17] Aff. of Gary Sackrider at 6, ¶37 (Oct. 2, 2006), does not show significant injury. See Amberwood Development Corp., 65 Mass. App. Ct. at 210-11. As the court noted in Amberwood Development Corp., significant injury is generally found only when there is no use left for the locus, the Bylaw would permanently deprive the [plaintiffs], and therefore the community, of a valuable and otherwise wasting asset, or where no practical use [could] be made of the land in question for residential purposes. Id. (quoting Barney & Carey Co. v Milton, 324 Mass. 440 , 445-47 (1949); Pittsfield v. Oleksak, 313 Mass. 553 , 554-55 (1943); Nectow v. Cambridge, 277 U.S. 183, 186 (1928)); see also Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 700 (1996); Simon, 311 Mass. at 565. Clearly such is not the case here. The plaintiffs themselves admit that their property, a six-acre lot with a single-family home, is worth approximately $850,000. Aff. of Gary Sackrider at 6, ¶37 (Oct. 2, 2006). Not only can they use it for residential purposes, but by their own account, it has significant value already. Accordingly, both as applied and on its face, the Bylaw provision is valid.
Bylaw § 196-24.K also does not violate G.L. c. 40A, § 4, which requires that [a]ny zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted. Here, the provision applies to all residential lots. Although there are two different percentages applied, they are applied uniformly to the two subcategories. As noted above, these categories are small lots (containing two to six acres) and large lots (containing more than six acres). More irregularity is permitted for large lots because, inherently, they result in less density than smaller ones. This is a reasonable differentiation and much weight must be accorded to [such] judgment of the local legislative body, since it is familiar with local conditions. Burnham v. Board of Appeals of Gloucester, 333 Mass. 114 , 116-17 (1955).
Finally, Bylaw § 196-24.K clearly does not result in spot zoning. [A] spot zoning violation involves more than a mere finding that a parcel of property is singled out for less restrictive treatment than that of surrounding land of similar character. Bd. of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 361(1973). It is a singling out of one lot for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot. Id. at 361-62 (quoting Marblehead v. Rosenthal, 316 Mass. 124 , 126 (1944)) (emphasis in original). There is nothing in the record to indicate that the irregular lot bylaw provision singles out a particular lot or results in an economic benefit to any owner of land, much less to any of the parties in this case.
For these reasons, I find and rule that Bylaw § 196-24.K is valid.
Count Five: the Plaintiffs Scenic Roads Act Application
The plaintiffs contend that the boards failure to act on their application for a permit under the Scenic Roads Act (G.L. c. 40, § 15C) has resulted in its constructive approval. [Note 18] Although there is no timeframe provided regarding the boards review of such an application, the board must act within a reasonable period of time. Here, the board deferred approval until the plaintiffs subdivision plan is approved. This is a reasonable decision. In its review of the subdivision plan, the board may, for example, request that the location of the subdivision road be altered. Changes such as this might result in changes to the permit application. Furthermore, the board was concerned that the plaintiffs would act on the permit prior to subdivision approval. If they do so, the plaintiffs could cut down trees and remove a portion of a stone wall. If the subdivision is altered or not approved, these actions may be difficult, if not impossible, to remedy and the purpose of the Scenic Roads Act would thus be undermined. I therefore find and rule that the boards decision to defer acting on the Scenic Roads Act permit application until the subdivision plan is finalized and approved is reasonable and thus the application was not constructively approved.
For the foregoing reasons, I first find and rule that the plaintiffs definitive subdivision plan was not constructively approved. Second, I find and rule that although the boards January 21, 2004 actions were not valid, the February 11, 2004 rescission was proper and within the boards authority. Third, I find and rule that Bylaw § 196-24.K is a reasonable provision that serves a legitimate government purpose and is therefore valid as applied and on its face. Fourth and finally, I find and rule that the board deferring ruling on the plaintiffs Scenic Roads Act permit application until a final subdivision plan (with a final road layout) is approved was reasonable and thus the application was not constructively approved. Judgment shall issue accordingly.
By the court (Long, J.)
[Note 1] The plaintiffs have not moved for summary judgment on count three, contending there are disputed issues of material fact. The defendants moved for summary judgment on all counts.
[Note 2] The plaintiffs characterize the plan as a preliminary plan, but the defendants assert that such plan was not a preliminary plan as defined under the Subdivision Control law. Answer to the Third Amended Complaint at 2, ¶ 10 (filed June 2, 2006). In their response to the plaintiffs statement of material facts for the motion for summary judgment, however, the defendants admit the plaintiffs statement that they prepared a preliminary subdivision plan showing a short cul-de-sac road . . . and presented it to the Board in early 2003, Plaintiffs Memorandum of Law in Support of Motion for Summary Judgment at 4 (Oct. 2, 2006). Defendants Statement of Material Facts in Opposition to Plaintiffs Motion for Summary Judgment and in Support of Defendants Cross Motion for Summary Judgment at 2, ¶ 5 (filed Nov. 3, 2006). Since the plaintiffs withdrew their application for a variance and formally filed a new definitive plan (the long road cul-de-sac plan), such dispute, if any, is not relevant or material to this memorandum.
[Note 3] Bylaw § 196-24.K.(1) states that no lot for residential use shall be laid out which is irregular in shape:
(a) A lot with at least 250 feet of street frontage is substantially irregular in shape if the area of the lot is less than 50% of the area of a square lot of the same perimeter.
(b) A lot with less than 250 feet of street frontage is substantially irregular in shape if the area of the lot is less than 20% of the area of a square lot of the same perimeter.
The aforementioned percentage standards may be applied to the entire lot or, at the discretion of the owner, to the minimum lot area which conforms to all other requirements of this bylaw. Bylaw § 196-24.K.(2).
[Note 4] It is not clear from the record when the board circulated the plan to the officials. The cover letter provided by the plaintiffs, which allegedly accompanied the circulated plan, is undated and unsigned. That letter only indicated that the boards first meeting was on September 3, 2003 and requested comments by September 23, 2003. Letter from Len Phillips (undated), attached as exhibit P to the Supplemental Aff. of Gary Sackrider (Dec. 4, 2006).
[Note 5] Here, there is no assertion that the plaintiffs were denied the right to file the definitive plan with the Board of Health and therefore, the finding in Paul Livoli, Inc. v. Planning Bd. of Marlborough that the plaintiffs failure to file the plan with the board of health was not fatal due to futility, 347 Mass. at 335, does not apply to the facts of this case. Accordingly, there is no constructive approval.
[Note 6] Rules and Regulations § 300-11.E.(2) provides the following:
(a) The Board will transmit copies of the definitive plan to town officials as follows:
 Conservation Commission.
 Superintendent of Public Works.
 Fire Department.
 Police Department.
 Inspector of Buildings.
 Board of Assessors.
 Board of Health.
(b) Before a definitive plan is approved, the Board will request written statements from the above officials with regard to the proposed improvements in the following respect:
 Conservation Commission as to potential involvement with MGL c. 131, § 40, and the effects of the subdivision on streams, wildlife and similar considerations within the scope of the Conservation Commission.
 The Superintendent of Public Works as to the design of the street system, location of easements, monuments, drainage system, water system and, if applicable, a sewage system and their appurtenances, and relationship to existing water and drainage systems.
 The Fire Department as to location of hydrants or water sources for fire-fighting purposes, installation of the alarm system (if applicable) and emergency access.
 Police Department as to street safety, both vehicular and pedestrian, and access for emergency vehicles.
 Inspector of Buildings for compliance with the Boxford Zoning Bylaw.
 Assessors for information on any possible lot line conflicts and for proper recording of known easements and/or encumbrances on the land.
[Note 7] The plaintiffs contend that the Board of Health did, in fact, make recommendations on the definitive subdivision plan. Supplemental Aff. of Gary Sackrider at 5, ¶ 25 (Dec. 4, 2006) (Although I did not file a copy of the Subdivision plan with the Boxford Board of Health to obtain its recommendation, the Board of Health did receive a copy and did make recommendations. See Exhibit P Definitive Plan Review.). Exhibit P is an undated cover letter from the board, stating that the definitive subdivision plan was submitted, noting that a public hearing was scheduled for September 17, 2003, and requesting written comments by September 23, 2003 for the continued hearing on October 1, 2003. Exhibit P does not include any attachments as to what was actually submitted to the town officials and the cover letter simply notes that plans are being forwarded. There is also no indication in Exhibit P or elsewhere that the Board of Health submitted comments to the board, much less that it provided recommendations on the plan. Furthermore, the boards decision specifically notes that the plaintiffs [f]ail[ed] to obtain recommendation from Board of Health. Letter from the Planning Board to Patricia Shields, Town Clerk at 1, ¶ 9 (Feb. 12, 2004 and filed with the town clerk on Feb. 19, 2004). Thus, so far as the record shows, the plaintiffs contentions that failure to comply with the regulation is irrelevant because the purpose of the regulation was achieved when the Board of Health made its recommendations to the Board is not only factually incorrect, but quite misleading. As a result, the purpose of the regulation was not achieved in this case the board did not have the input of the Board of Health on issues within the Board of Healths exclusive jurisdiction. See discussion, infra.
[Note 8] If the plaintiffs definitive subdivision plan was constructively approved, and if the plaintiffs were issue[d] a certificate [from the town clerk] stating the date of the submission of the plan for approval, the fact that the planning board failed to take final action and that the approval resulting from such failure has become final, G.L. c. 41, § 81V, the plaintiffs property would receive an eight-year zoning freeze. Heritage Park Development Corp. v. Southbridge, 424 Mass. 71 , 75 (1997). This protection is secure despite the boards subsequent rescission of the constructive approval. Id.
[Note 9] Without consent, the board may not do so, however, if the modification, amendment or rescission of the plan will affect lots that have already been sold or mortgaged in good faith. G.L. c. 41, § 81W. There is no allegation here that the property had been sold or mortgaged subsequent to the purported constructive approval, but before the February rescission.
[Note 10] The Supreme Judicial Courts decision in North Landers Corp. v. Planning Board of Falmouth does not mandate a different result. 382 Mass. 432 (1981). In that case, the boards reasons for disapproving the definitive plan were [i]nadequate access, the inadequacy of Sam Turner Road and other reasons. Id. at 433 (alteration in original). The court found that since the board failed to detail wherein the access within the subdivision or the condition of Sam Turner Road was inadequate, the boards statement of reasons for its decision [fell] seriously sort of the statement in detail required by G.L. c. 41, § 81U. Id. at 445, 446. Here, sufficient detail was given. In any event, as discussed below, the board need only have one substantial reason for disapproval or rescission to be proper. Mac-Rich Realty Construction, Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 81 (1976); see also Lakeside Builders, Inc. v. Planning Bd. of Franklin, 56 Mass. App. Ct. 842 , 851 (2002) (citing Mac-Rich).
[Note 11] Rules and Regulations § 300-8 specifically states that [t]he Board will not approve or modify and approve any plan of a subdivision of land unless all buildings, structures and lots shown on said plan comply with the Zoning Bylaws of the town or a variance and/or special permit from the terms thereof has been granted. Even if they did not, a plan can be disapproved for violating zoning requirements. Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 695-97 (1996).
[Note 12] The fact that the building inspector apparently interpreted the bylaw differently is not dispositive. See Building Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 162 (1977) (The governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and the ordinance.). In response to the plaintiffs engineers letter requesting assistance in interpreting the 200-foot circle provision and outlining their view that the circle may include area within the front, side and rear zoning setbacks, Letter from John B. Paulson to Ken Ward (Sept. 24, 2003), the building inspector stated that he agree[s] with your interpretations with regards to CBA and 200 diameter circle, Letter from Ken Ward to John B. Paulson, P.L.S. (Oct. 7, 2003). The board clearly disagreed and, pursuant to the towns bylaws, it is the board that has the final word on whether the definitive plan meets all requirements.
[Note 13] While the boards other reasons may or may not be valid reasons for rescinding the constructive approval, most of them involve disputed issues of material facts. I need not reach these however, since the board has listed at least one valid reason. See note 10, supra and the discussion above.
[Note 14] Bylaw § 196-24.Ks provisions must be read in conjunction with other sections of the Bylaw for its distinctions (and their consequences) to be understood. With exceptions not relevant here, residential lots must be at least two acres in size. Bylaw § 196-24.B.(1). Lots between two and six acres must have at least 250 feet of continuous frontage and a minimum lot width of 100 feet at any point in the buildable portion of [the] lot. Bylaw §§ 196-24.D.(1)(a), 196-24.D.(2)(b). Certain lots are exempt from the frontage requirements so long as they meet the following requirements:  The area of the lot exceeds by at least four acres the minimum area required for such an R-A District [i.e., the lot is larger than six acres];  The lot has a minimum continuous street frontage of not less than 50 feet and a width of not less than 50 feet at any point between the street and the site of the dwelling;  There is not more than one other such lot with frontage continuous to it; and  It is not, in the opinion of the Planning Board, so located as to block the possible future extension of a dead-end street. Bylaw § 196-24.D.(3)(a). The irregularly shaped lots provisions of Bylaw § 196-24.K follow these distinctions between small lots (containing two to six acres) and larger lots (containing more than six acres), allowing more irregularity for larger lots. As discussed infra, this is consistent with its purpose of regulating density.
[Note 15] The plaintiffs contend that since the defendants failed to articulate a reason for the Bylaw provision during discovery, they cannot later articulate one. This assertion however misstates the defendants burden. As stated above, the town[s burden is] only to make a prima facie showing of a rational basis for its actions. Sturges, 380 Mass. at 259. This showing must be made on the record and it is not the towns burden to come forward with proof of those very circumstances whose possible existence it has sought time to investigate. Id. at 257-58; see also Simon, 311 Mass. at 566 (it was the duty of this court to sustain [the bylaw] if a reasonable construction shows it to be valid even if it appeared that, in the endeavors which suggested the legislation, considerations were presented to the legislature which would not be a sufficient constitutional justification for such an enactment.). In asserting the basis for the Bylaw, the town has been restricted neither to the reasons expressed by its planning board in its statutorily required recommendations to the town meeting (G.L. c. 40A, § 5), nor to arguments which were advanced on the town meeting floor. Sturges, 380 Mass. at 256-57. Furthermore, once the prima facie showing is made, it is the plaintiffs heavy burden, not the defendants, to show that a conflict with applicable constitutional provisions. Id. at 256.
[Note 16] This is not meant to indicate that fifty feet is an inadequate width for access, only that the resulting shape is definitely a pork chop.
[Note 17] I assume, without deciding, for the purposes of this memorandum, that this value is accurate.
[Note 18] Under G.L. c. 40, § 15C, [a]fter a road has been designated as a scenic road[,] any repair, maintenance, reconstruction, or paving work done with respect thereto shall not involve or include the cutting or removal of trees, or the tearing down or destruction of stone walls, or portions thereof, except with the prior written consent of the planning board . . . .