MISC 334125

May 1, 2009

Sands, J.


Plaintiff Caddy Farms, LLC, filed its unverified Complaint on December 6, 2006, appealing the denial by Defendant Planning Board of the City of Revere of a definitive subdivision plan to create twenty-nine single-family house lots off Muzzey Street in North Revere, MA. On December 28, 2006, Defendant filed its Answer. Plaintiff filed its Motion for Summary Judgment on January 11, 2008, together with supporting memorandum, [Note 1] Statement of Material Facts, and Affidavit of Attorney Richard J. O’Neil. On April 23, 2008, Defendant filed its Opposition and Cross Motion for Summary Judgment, together with supporting brief and Affidavit of Donald E. Goodwin (“Goodwin”) (Superintendent of the Revere Department of Public Works (the “DPW”)). [Note 2] A hearing was held on both motions on August 20, 2008, at which time the motions were taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat=l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. Plaintiff owns approximately nineteen acres of land off Muzzey Street in Revere, MA (“Locus”) by deed dated March 1, 2002, and recorded with the Suffolk County Registry of Deeds (the “Registry”) at Book 28088, Page 234. Locus is shown as Lot AA on a Plan of Land in Saugus and Revere surveyed by Fred R. Page Eng. in 1884 and redrawn by George J. Caddy in 1955 (the “1884 Plan”), recorded with the Registry at Book 7146, Page 477.

2. On August 5, 2005, Plaintiff submitted an application for a preliminary subdivision plan for the Revere portion of Locus, together with a plan prepared by Hayes Engineering, Inc. dated July 22, 2005. [Note 3] The preliminary plan did not seek any waivers. On October 24, 2005, Defendant voted to approve the preliminary plan, with twelve conditions. Included in the conditions were the following two:

1. The water distribution system servicing the site must be a looped system. . . . .

3. An evaluation of the existing sewer system and pump station must be undertaken to determine the adequacy of the sewer system and pump station to handle the additional flow from the subdivision.

3. Plaintiff filed an application for a definitive subdivision plan dated March 20, 2006, together with a definitive plan prepared by Hayes Engineering, Inc. dated December 6, 2005.

4. At a public hearing on May 23, 2006, before Defendant, the Revere City Planner read into the record objections from the DPW relative to acceptable water service to the site and the adequacy of the sewer pump station to handle waste water from the subdivision. [Note 4] Such DPW objections stated that the North Revere community suffered from low water pressure and poor water quality due to numerous dead-end water lines. Plaintiff filed a revised definitive subdivision plan that including a modified looped water system. [Note 5]

5. By letter dated June 23, 2006, Plaintiff requested a forty-five day extension for action on the definitive plan application. At a meeting on June 27, 2006, Defendant granted Plaintiff a sixty-day extension.

6. At a meeting of Defendant on August 16, 2006, Plaintiff requested an additional sixty-day extension for action on the definitive plan application. That same day, Defendant granted Plaintiff a ninety-day extension, with the condition that no further extensions be allowed unless Plaintiff showed a substantial good faith effort had been made with the New England Power Company (shown on the subdivision plans as record owner of property abutting Locus, located to the south of Locus) to obtain a utility easement for the water-line loop.

7. At a meeting on November 8, 2006, Defendant voted to deny the definitive subdivision plan (the “Denial”). [Note 6] Defendant filed a notice of the Denial with the Revere City Clerk on November 20, 2006. The Denial cited the following reasons:

1. An adequate water distribution loop system was not provided as required in the preliminary subdivision plan and from the Department of Public Works for the purposes of providing adequate water quality and adequate water pressure.

2. A sewer system evaluation study was not provided to the Planning Board as required in the preliminary subdivision plan and Department of Public Works to determine the capacity of the existing sewer pump station and existing sewer system to handle the additional waste water flow generated from the proposed subdivision.

3. The Planning Board granted two 90 day extensions to the proponent for the purpose of providing the necessary sewer evaluation study and water distribution system loop to service the proposed subdivision. [Note 7]


Plaintiff’s appeal comes to this court pursuant to G. L. c. 41, § 81BB, which states that “[t]he court shall hear all pertinent evidence and determine the facts, and upon the facts so determined, shall annul such decision if found to exceed the authority of such board, or make such other decree as justice and equity may require.” In other words, this court’s duty, in hearing an appeal pursuant to G.L. c. 41, § 81BB, is to “conduct a hearing de novo, find the relevant facts, and determine the validity of the planning board’s decision.” Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104 , 106 (1991). Such review is confined to the reasons cited by the planning board. Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). The burden in appeals from planning board decisions rests upon the objecting party to prove that the board exceeded its authority. See Windsor v. Planning Bd. of Wayland, 26 Mass. App. Ct. 650 , 657 (1988). In general, if the subdivision plan meets the recommendation of the board of health and all reasonable rules and regulations of the planning board, the planning board has no discretion to deny the plan. Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 84-85 (1976).

Plaintiff argues that Defendant exceeded its authority in denying the definitive subdivision plan which met the Revere Planning Board Rules and Regulations (the “Rules and Regulations”) and for which no waivers were requested. It contends that none of the stated reasons for denial are reflected in the Rules and Regulations and cites Castle Estates, Inc. v. Park and Planning Bd. of Medfield, 344 Mass. 329 , 334 (1962), which holds that planning board subdivision regulations should provide applicants with comprehensive and reasonably definite notice of what standards may be required.

The central question in this case, then, is whether the Rules and Regulations are “reasonably definite . . . so that owners may know in advance what is or may be required of them and what standards and procedures will be applied to them.” Id. Specifically, the question at issue is whether the Rules and Regulations were specific enough to put Plaintiff on notice that it needed to address the issues of a looping water distribution system and a sewage evaluation in the definitive plan. [Note 8]

Defendant asserts that it complied with the Rules and Regulations, which support the reasons for the Denial. It points to the purpose clause of the Rules and Regulations, which tracks portions of G. L. c. 41, § 81M (the legislative statement and purpose of subdivision control law), and states:

These subdivision regulations have been enacted for the purpose of . . . insuring sanitary conditions in subdivisions and in proper cases parks and open areas. The powers of the Planning Board and Board of Appeals under these regulations shall be exercised with due regard . . . for securing safety in the case of fire, flood and other emergencies . . . [and] for securing adequate provision for water distribution, sewerage, drainage, flood control wetland areas, and other requirements where necessary in a subdivision . . . .

Section 5 (Requirements for Approval of a Subdivision) of the Rules and Regulations specifies in subsection E.1 (Utility Requirements) that

[s]ewer lines, water lines and related equipment such as hydrants and main shut-off valves shall be designated in accordance with the standards and requirements of the Department of Public Works and City of Revere Ordinances and shall be installed under the direction and supervision of the Department of Public Works to serve each lot in each street. . . .

Defendant reasons that the Rules and Regulations refer to sewer and water issues as within their purview. Both G. L. c. 41, § 81M and the Purpose section of the Rules and Regulations reference “ensuring sanitary conditions in subdivisions,” “securing safety in the case of fire, flood, panic and other emergencies,” and “securing adequate provision for water, sewerage.” Additionally, Section 5 of the Rules and Regulations requires that subdivision plans address water systems and sewer systems, and that “sewer lines, water lines and related equipment . . . shall be designated in accordance with the standards and requirements of the Department of Public Works.”

From the time Plaintiff submitted its preliminary subdivision plan, the DPW has made clear what the requirements of the sewer and water lines are and why they are important. Such requirements were stated in the conditioned approval of the preliminary plan. The DPW reiterated these requirements at the first public hearing on the definitive plan. [Note 9] This is spelled out in the Denial. In addition, as part of the summary judgment record, Defendant provided the Goodwin Affidavit which supplies great detail as to: (1) the requirements and reasons for a looped water system and a sewer evaluation for the area surrounding Locus; (2) why the definitive plan, as modified, does not meet the requirements of the DPW; and (3) the fact that other developments in Revere are required to make similar reports to the City. Goodwin made this clear to Plaintiff in repeated hearings before Defendant. Goodwin’s Affidavit ends with the following statements:

I believe that the looped system requested by the City for the development proposed by the Plaintiff is necessary in the interests of public health and safety insofar as it would ensure the quality of drinking water in the area, reduce the risk of back flow and cross connection, and ensure adequate water volume and pressure in the event of fire . . . . The Superintendent of Public Works is the only City official with the authority to issue sewer connection permits. In furtherance of this authority, DPW routinely asks developers to conduct a sewer evaluation study to provide factual data to determine compliance with D.E.P. standards and regulations. Plaintiff cited to Massachusetts Broken Stone Co. v. Planning Bd. of Weston, 45 Mass. App. Ct. 738 , 742 (1998), where the Appeals Court addressed the issue of “whether the reasons stated by the planning board in rejecting the proposed drainage system, namely, the potential negative impacts on water quality, were within the scope of its authority under its rules and regulations.” The court determined that neither of the sections of the subdivision rules and regulations concerned water quality and, as such, “may not be used as a basis to disapprove the subdivision plan.” Id. Such is not the case in the matter at bar in that, as discussed, supra, the Rules and Regulations authorize Defendant to consider water and sewer issues when reviewing subdivision applications.

Plaintiff also cited to Daley Construction Co. v. Planning Bd. of Randolph, 340 Mass. 149 , 156 (1959), in support of the holding that “the Legislature . . . thus far has not given planning boards the power unconditionally to disapprove a subdivision plan because its execution would impose new demands upon a community’s existing water supply.” However, in the Denial, Defendant did not unconditionally disapprove the definitive subdivision plan. Rather, it disapproved Plaintiff’s plan with express conditions relative to a looping water system and sewer evaluation, which conditions Defendant explained to Plaintiff in Plaintiff’s preliminary plan and during numerous public hearings. Furthermore, the issue in Daley Construction was whether

a subdivision plan, admittedly “a proper plan” with an adequate “water pipe layout,” approved by appropriate town officers and boards and filed “in compliance with the by-laws of the town” and applicable provisions of the General Laws, may be denied approval by a planning board under the subdivision control law . . . on the ground that its execution may accentuate an existing town water shortage.

Id. at 152. This is far different that the issue here, where Defendant neither agreed that the plan was proper, nor that the water pipe layout was adequate. Moreover, in Daley Construction the Supreme Judicial Court (the “SJC”) expounded upon the purpose of the subdivision control law:

The general tenor of [G. L. c. 41, § 81M, cited supra] shows legislative concern primarily with (a) adequate ways to provide access furnished with appropriate facilities and (b) sanitary conditions of lots. Read in context, the words, “securing adequate provision for water,” seem to us to mean installation of an adequate system of water pipes rather than an adequate supply of water, which, if not to be supplied from wells or other privately owned sources, is usually a matter of municipal water supply or water company action.

Id. at 154 (emphasis added). This language confirms that Defendant’s interest in a looped water system was well within the purpose of the subdivision control law.

Furthermore, the summary judgment record is clear that Plaintiff did not suffer from a lack of actual notice relative to Defendant’s requirement for a looped water distribution system. Defendant’s approval of Plaintiff’s preliminary subdivision plan was contingent upon twelve conditions, one of which expressly required that “[t]he water distribution system servicing the site must be a looped system” and another specifically required “[a]n evaluation of the existing sewer system and pump station must be undertaken to determine the adequacy of the sewer system and pump station to handle the additional flow from the subdivision.”

Finally, as discussed, supra, Plaintiff’s reliance on Castle Estates is misplaced. In Castle Estates, the SJC found that the rules and regulations at issue, see Castle Estates, 344 Mass. at 330 n.2, did not support the condition in the planning board decision that required the subdivision water system to be connected to the public water supply system. Id. at 334. The SJC found that the subdivision regulations at issue were “too vague and general to inform owners about the standards which they must meet” because they lacked “explicit provisions permitting the board to require that subdivision plans in any area or areas shall contain provision[s for connecting to town water or obtaining drainage easements]. Id. at 334. The Court reasoned that “[t]he planning board . . . cannot impose conditions . . . where it has not included (or incorporated by reference to other regulatory provisions) in its regulations [more explicit provisions].” Id.

Subsequent case law has modified and provided more flexibility to the Castle Estates holding. Defendant cites North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432 (1981), to support its position that it has flexibility in interpreting and implementing the Rules and Regulations. “Planning board regulations may permit sufficient leeway for determination based on the individual facts of each case.” Id. at 443. The SJC, in North Landers, points out that “the Castle Estates standard is offended when local boards have introduced reasons not specified in the published regulations.” Such is not the case here, for the Rules and Regulations not only incorporate DPW standards but also require applicants to install sewer and water lines under the direction and supervision of the DPW. Goodwin’s affidavit shows that the DPW worked with Plaintiff throughout the application process and consistently required a looped water system and a sewer evaluation study. The DPW’s supervision is also evident in the record through various minutes of Defendant’s public hearings. Specifically, on May 23, 2006, the DPW (through the City Planner) apprised Plaintiff that the water system must be looped through North Revere and a sewer evaluation study would be required in order for the development to move forward.

As indicated previously, Plaintiff, as the objecting party to a planning board decision, has the burden to prove that the Denial exceeded Defendant’s authority. The Denial referenced two DPW requirements: a looped water system and a sewer evaluation study, both of which the Goodwin Affidavit explains and expands upon. In order for Plaintiff to satisfy its burden, it must demonstrate how the DPW requirements referred to in the Denial are inconsistent with the Rules and Regulations or the representations within the Goodwin Affidavit. Plaintiff fails in this regard for it did not supplement the record with any such evidence.

In light of all the above, I find that, relative to a looping water system and sewer evaluation study, the Rules and Regulations were reasonably definite to provide Plaintiff adequate notice of what standards and procedures might be applied.

As a result of the foregoing, I find that the Denial was valid and not arbitrary, capricious, or unreasonable, or beyond the scope of authority of Defendant. I DENY Plaintiff’s Motion for Summary Judgment and ALLOW Defendant’s Cross-Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III


Dated: May 1, 2009


[Note 1] A revised memorandum was filed on February 14, 2008.

[Note 2] Plaintiff made an oral motion to strike the Goodwin Affidavit at the summary judgment hearing, but gave no basis other than such affidavit was not supported by facts. However, the affidavit, was provided by the Superintendent of the DPW, a position Goodwin has held since January 2000, and this court considers Goodwin to be an expert relative to the City of Revere’s water and sewer issues due to his nine years of experience as head of the DPW. The Goodwin Affidavit gave detailed rationale for the need for the water loop and sewer reports, which this court deems credible. As a result, Plaintiff’s (oral) Motion to Strike Goodwin’s Affidavit is DENIED.

[Note 3] The summary judgment record does not disclose the acreage of the Revere portion of Locus.

[Note 4] Both parties rely upon language found in the minutes of various City of Revere Planning Board meetings, and both parties attached copies of minutes to their respective summary judgment briefs. Neither party objected to the other’s use of such minutes.

[Note 5] The summary judgment record is unclear when Plaintiff’s revised definitive subdivision plan was filed with Defendant.

[Note 6] According to the minutes of Defendant’s November 8 meeting, Attorney Joseph Cattoggio, Jr. requested an additional thirty-day extension to address, in part, the DPW’s continued concern regarding a looped water system and a sewer evaluation. Defendant refused to grant such further extension.

[Note 7] While the Denial refers to “two 90 day extensions,” the record indicates that Plaintiff was actually granted one sixty-day extension and one ninety-day extension. This difference is immaterial to the substance of this matter and neither party subscribes any meaning to the discrepancy.

[Note 8] G. L. c. 41, § 81Q lays the framework for subdivision rules and regulations. This statute states, in part:

Such [subdivision] rules and regulations . . . shall set forth the requirements of the board with respect to the location, construction, width and grades of the proposed ways shown on a plan and the installation of municipal services therein, which requirements shall be established in such manner as to carry out the purposes of the subdivision control law as set forth in section eighty-one M. . . . Such rules and regulations may set forth a requirement that underground distribution systems be provided for any and all utility services, including electrical and telephone services, as may be specified in such rules and regulations . . . .

[Note 9] A reference to the DPW’s requirement for a looped water distribution system and sewer evaluation is found in the minutes from Defendant’s public hearings dated May 23 and November 8, 2006.