These actions are the plaintiffs G.L. c. 41, § 81BB appeals of two decision of the defendant Town of Williamstown Planning Board (the Board), approving defendants Charles Foxs and Joan Burns (the Applicants) application for approval of a definitive subdivision plan (Misc. Case No. 324035) and a petition for its modification (Misc. Case No. 370547). Plaintiffs Marjorie M. Wylde, Paul Maher, Ronald Turbin, Judith Turbin, David Keiser-Clark, Erin Keiser-Clark, Henry E. Bratcher, Jr. (as trustee of the Cold Spring South Nominee Trust), James MacGregor Burns, Nicholas H. Wright, Joan Safford Wright, Patricia Patterson, and Alan Evenson are neighbors of the proposed Foxwood Lane subdivision off of Bee Hill Road in Williamstown. [Note 1] They argue that the Board exceeded its authority in approving the definitive plans for numerous reasons, largely related to whether Bee Hill Road serves as adequate access and whether the drainage and stormwater systems are adequate. The defendants argue that the Board properly approved the plans.
A trial was held, jury-waived, and a view was taken. [Note 2] Based on the agreed facts contained in the parties pre-trial memoranda, my observations at the view, the testimony and exhibits admitted into evidence at trial, the parties admissions in their post-trial memoranda, and my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that the plaintiffs did not sustain their burden in showing that the planning board acted improperly in approving the subdivision plans, with the exception of the issues related to implied waivers. [Note 3] Bd. of Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548 (1975). Specifically, I find and rule that Bee Hill Road provides adequate access from the entrance of Foxwood Lane to Taconic Trail. To the extent that that portion of Bee Hill Road does not meet the subdivision rules and regulations, I find and rule that the Board was reasonable in explicitly waiving those requirements. The Boards decisions in both cases are therefore AFFIRMED as to this issue. The plaintiffs claims regarding Bee Hill Road between Foxwood Lane and Taconic Trail are thus DISMISSED, in their entirety. As is discussed in greater detail below, the Boards determination that [t]he design of the storm water management system is satisfactory also is AFFIRMED, in part.
I also find and rule that the plaintiffs other criticisms (allegedly failing to address reviewers concerns, improperly reserving issues for later determination, failing to ensure conditions will be performed, failing to require additional tests, failing to evaluate the project under the Public Shade Tree Law and Scenic Roadway Regulations, and failing to require an independent engineer to supervise and inspect construction) are not supported by the evidence and are often not required by relevant town regulations. Accordingly, I AFFIRM the Boards Decision with respect to these issues and DISMISS the plaintiffs claims on these issues, in their entirety.
There was, however, evidence submitted at trial that showed that the Applicants did not meet several of the towns rules and regulations and for which the Board failed to explicitly waive compliance. Since the Subdivision Rules and Regulations state that the Board shall clearly state its reasons in writing and make it part of its decision when it waives compliance, [Note 4] Rules and Regulations § 170-5.3 (emphasis added), these cases are REMANDED to the Board for further consideration of those (and only those) particular issues, as more fully set forth below.
In an application dated December 16, 2005, Charles Fox and Joan Burns [Note 5] submitted a definitive subdivision application for the Foxwood Lane Subdivision to the Board. [Note 6] The plans indicate that the subdivision will contain eight buildable lots (Lots 1 7, 9) [Note 7] and two non-building lot[s], restricted to future conveyance (Lots 8a and 8b). Trial Ex. 8(1), Overall Site Plan (Dec. 16, 2005); Trial Ex. 8(13), Building Envelope Plan (Jan. 6, 2006).
On May 16, 2006, the Board issued its written decision, approving Mr. Foxs and Mrs. Burns application for their definitive plan. In its decision, the Board made the following findings:
1. The plan and improvements, as shall be modified pursuant to this decision, shall comply with Chapter 170.
2. The design of the storm water management system is satisfactory;
3. The design of the three stream crossing structures is satisfactory; [Note 8]
4. We accept the dispersed hill side subdivision type; [Note 9]
5. We find that sidewalks are not required. [Note 10]
6. Because most of the trees close to Foxwood Lane will be retained, they are sufficient to provide shading and wind protection. No additional plantings are required (170-4.5.D(5)); [Note 11]
7. We find that street lighting is not required. [Note 12] 8. The subdivision is not a Major Residential Development. Lots 8, 8A and 8B shall not be sold or in any way developed within 12 months from the date of this approval.
9. The access to Foxwood Lane is presumed to be from Taconic Trail. The portion of Bee Hill Road between the entrance to Foxwood Lane and Taconic Trail will be corrected (and in places reconstructed) at the developers sole cost and expense.
In accordance with Section 170-2.3.C, the Board finds this portion of Bee Hill Road, following the improvements thereof as set forth in Sheet C1 prepared for the Town of Williamstown dated 4/6/06 and revised to 4/28/06, to have adequate access, with minor exceptions from the following requirements:
- traveled width
- underground utilities
10. Subject to the conditions set forth below, limitations on tree clearing, amount of lawn, and impervious area are compliant with 170-4.5.D 9[sic] (1-7). [Note 13]
Williamstown Planning Board Definitive Plan Decision at 2 (May 16, 2006) (Trial Ex. 6) (hereinafter, the Decision). The Board also imposed the following conditions as part of its approval of the plan: 1. The 25,000 gallon tank and dry hydrant for fire protection is installed according to the plan shown in Sheet C-13, and approved by the Fire Chief for compliance with all applicable codes, filled and made ready for use prior to the construction of any new dwellings. A maintenance agreement shall be submitted to the Department of Inspection Services for review and approval prior to the commencement of construction of any new dwellings. All reports required pursuant to the maintenance agreement shall be filed with the Department of Inspection Services.
2. The improvements to Bee Hill Road, between Foxwood Lane and the Taconic Trail (Route 2) and shown on Bee Hill Road Improvements, Sheet C1, prepared for the town of Williamstown, dated 4/6/06 and revised 4/27/06 shall be performed at the developers expense following construction of Foxwood Lane. The drainage repairs to Bee Hill Road shall be corrected at the beginning of construction. Bee Hill Road shall be maintained in a passable condition at the expense of the applicant between Foxwood Lane and Taconic Trail at all times during construction of Foxwood Lane.
The construction of the bump-outs on Bee Hill Road, pursuant to Sheet C-1 plan prepared for the Town of Williamstown dated 4/6/06 and revised to 4/27/06, shall be completed prior to the commencement of construction of Foxwood Lane.
Drainage repairs to Bee Hill Road, as noted on Sheet C-1 plan prepared for the Town of Williamstown dated 4/6/06 and revised to 4/27/06, shall be completed prior to the commencement of construction of Foxwood Lane.
Bee Hill Road will remain serviceable during construction and any damage from heavy vehicles or other construction related activities shall be promptly repaired at the sole cost and expense of the applicant. The applicant must post assurances satisfactory to the Planning Board to insure that Bee Hill Road is maintained in a passable condition during the construction of Foxwood Lane and that improvements to Bee Hill Road are made in accordance with the approved plans.
3. All access by construction vehicles to Foxwood Lane, or to that portion of Bee Hill Road to be improved, shall be from Route 2/Taconic Trail, and it shall be the sole responsibility of the applicant to enforce this condition. All contractors, suppliers and others working on this project shall be given written notice by the applicant (or his representative) describing all relevant access and construction limitations. The applicant shall promptly repair any and all construction damage to Bee Hill Road resulting from or arising out of the construction of Foxwood Lane.
4. No further subdivision is permitted without further Planning Board approval as a modification to an approved definitive plan under Section 81W, Chapter 41 Massachusetts General Laws. Further burdening of Bee Hill Road must be reviewed.
5. Foxwood Lane may not be presented for acceptance as a Town way until such time as it meets the standards of the Road Acceptance Bylaw (Chapter 60 Code of the Town of Williamstown).
6. Construction vehicles are prohibited from parking, standing, staging, etc. on Bee Hill Road or the scenic overlook area, or using any private drive for turning, parking, standing, or staging during construction of Foxwood Lane or improvements of any individual lots. The applicant shall provide personnel to control construction traffic on Bee Hill Road to insure compliance with the above. In addition, the applicant shall also provide the following:
a) The applicant shall notify Bee Hill Road residents of the name(s) and telephone number(s) of a person available for contact by residents who have concerns regarding the condition of Bee hill Road relating to construction activity.
b) The applicant will conduct immediate (including nights, weekend, and holidays) repair of any degradation to Bee Hill Road caused by Foxwood development construction traffic, including road degradation.
c) During the period of initial site development, and later individual site build-out, no construction vehicles will block Bee Hill Road, or in any way impede the free flow of traffic.
7. The size of lawn areas and impervious areas for each of the lots in the subdivision shall be as set forth on the table below and the locations of buildings will be limited to those areas designated on Sheet C-12. These will be included with the Declarations of Covenants, Easements and Restrictions. The establishment of building zones (Sheet C-12) reinforces this requirement.
Limitations on the creation of lawns and impervious areas:
|Lot||Lawn Area (Ac)||Impervious Area (Ac)||Total (Ac)|
|8A & 8B||1.28||0.6||1.88|
8. Tree clearing on each lot in the subdivision shall be limited to the total area specified in Table I above and shall be inclusive of the permitted lawn area and impervious area and not in addition thereto.
9. Vehicles and heavy equipment shall not be permitted on Bee Hill Road at such times that the Department of Public [W]orks deems the conditions of Bee Hill Road unsuitable.
10. There shall be a permanent obligation to inspect, repair and maintain when necessary all drainage ponds. The obligation shall also be set forth in the Declaration of Covenants, Easements and Restrictions. The applicant shall provide the Planning Board with an inspection and maintenance protocol, stamped by an engineer, prior to construction of said ponds, which protocol shall be subject to the review and approval of the Conservation Commission.
11. Every lot shall be bound by the terms of a Homeowners Association Declaration, (the Declaration) a draft of which shall be submitted to the Planning Board for approval by Town Counsel. No lots within the subdivision may be conveyed until the Declaration is recorded. The Declaration shall contain the following requirements:
a) Every lot owner shall be obligated to pay their pro rata share of the cost to maintain the subdivision road and all drainage ponds/facilities and related infrastructure.
b) In the event that any required maintenance or repair work is not performed, if the maintenance protocol is not followed, or necessary repairs are not performed, the Town shall have the right, but not the obligation, to enter the property and complete the work which the Town deems necessary; the Town shall charge, pro rata, the owners of the lots for the Towns costs in performing any such work. If a lot owner fails to reimburse the Town for its costs, the Town may place a lien on said lot.
c) The Declaration shall expressly grant the Town permission to enter onto any land in the subdivision to perform any work deemed necessary by the Town pursuant to these requirements.
12. Prior to the commencement of any work on Foxwood Lane, the applicant shall provide the Town with evidence of compliance with Section 170-4.6C.
13. The applicants request for a waiver from the paving standards of Section 170-4.2.E is denied. Foxwood Lane shall be paved in accordance with Town standards. Curbing shall be provided in areas with a grade exceeding 8%, and drainage shall be detailed on plans to be approved by the Planning Board before the Plan is endorsed.
Decision at 3-7.
On November 21, 2007, the Applicants filed a petition to modify the approved plan in order to move the entrance of the proposed Foxwood Lane 150 feet and to install underdrains in the detention basins. On January 28, 2008, the Board filed a decision with the town clerk, approving (by a vote of 4 in favor and 1 against) the petition for modification of the approved definitive plan for the Foxwood Lane Subdivision. Williamstown Planning Board Definitive Subdivision Plan Certificate of Approval (Jan. 28, 2009) (Trial Ex. 7) (hereinafter, the Modified Decision). The Board specifically noted that the Modified Decision is subject to the same ten findings and thirteen conditions imposed by the May 16, 2006 Certificate of Approval for Foxwood Lane. Id.
The plaintiffs have challenged both of those decisions pursuant to G.L. c. 41, § 81BB for several reasons, discussed in greater detail below. Miscellaneous Case No. 324035, filed on June 1, 2006, challenges the original approval of the Foxwood Lane Subdivision definitive plan. [Note 14] Miscellaneous Case No. 370547, filed on February 12, 2008, challenges the application for a modification of the approved plan. [Note 15] The two cases were consolidated for all purposes on February 21, 2008 and a trial was held over six days and one additional day for closing arguments.
Several of the plaintiffs testified at trial, including Alan Evenson, Judith Turbin, James MacGregor Burns, Marjorie Wylde, Paul Maher, David Keiser-Clark, and Ronald Turbin. The plaintiffs also presented the testimony of David Loring, a traffic engineer with Tighe & Bond, and T. James Houston, an engineer with CT Male Associates.
As agreed exhibits, the deposition testimony of Joseph P. Roman, an engineer with Clough Harbor and Associates (Trial Ex. 32), and the deposition testimony of Steven R. Wilson, a senior project manager with Clough Harbor and Associates (Trial Ex. 33) were offered. [Note 16] Clough Harbor and Associates was retained by the Board to review the Foxwood Lane Subdivision.
The defendants offered the testimony of Charles Fox, the developer of the proposed subdivision; Timothy Keiser, the Director of the Williamstown Public Works Department; Charles Labatt, the principal engineer for the proposed subdivision with Guntlow & Associates; Eric Bernardin, an engineer with Fuss & ONeill; and John Dietrich, a transportation engineer with Fuss & ONeill.
Other pertinent and material facts are included in the analysis section below.
The Standard for a G.L. c. 41, § 81BB Appeal
In a G.L. c. 41, § 81BB appeal, [t]he trial courts duties . . . are to conduct a hearing de novo, find the relevant facts, and determine the validity of the planning boards decision. Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104 , 106 (1991); see also Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 479 (1955); Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). In determining the validity of the decision, the judge must decide whether, on the facts found by him, the board had exceeded its authority in approving the plan aired at the public hearing. In the course of that process, he should . . . determine whether that plan conform[s] to the rules and regulations of the planning board and to the recommendations of the board of health. If such rules and regulations ha[ve] been complied with and the plan comport[s] with the recommendations of the board of health, he should . . . determine that the board did not exceed its authority in approving the plan. Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 23-24 (1977). However, since one is entitled to have a definitive subdivision plan approved unless it is shown to be in conflict with recommendations of the board of health . . . or the reasonable rules and regulations of the planning board, the burden of adducing proof is on those who contend that a subdivision plan was improperly approved. Selectmen of Ayer, 3 Mass. App. Ct. at 548. A plan may not be disapproved merely because the board feels general public considerations make such action desirable. Mac-Rich Realty Const., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 84-85 (1976) (quoting Pieper v. Planning Bd. of Southborough, 340 Mass. 157 , 163-64 (1959)).
In Williamstown, the Board may consider the following criteria when determining whether or not to approve a definitive plan:
(a) Completeness and technical adequacy of all submissions.
(b) Determination that development at this location does not entail unwarranted hazard to safety, health and convenience of future residents of the development or of others because of possible natural disasters, traffic hazard or other environmental degradation
(c) Conformity with the requirements of Article IV, Design and Construction Requirements.
(d) Determination, based upon the environmental analysis (where submitted), that the subdivision as designed will not cause substantial and irreversible damage to the environment, which damage could be avoided or ameliorated through an alternative development plan.
(e) Adequacy of access as provided at § 170-2.3.
(f) Conformity with the recommendations of the Board of Health.
(g) Conformity with all applicable zoning requirements, including Article V, Development Standards, of Chapter 70, Zoning.
(h) Determination that any applicable development guidelines of the appendices have been reflected in the design.
(i) Determination that traffic impacts meet the standards of Appendix D, Traffic Impact Guidelines.
(j) Consistency with the purposes of the Subdivision Control Law.
Subdivision Rules and Regulations 170-3.5.H(1).
In both of their complaints, the plaintiffs challenge the Boards two decisions approving the Foxwood Subdivision definitive plans for essentially the same reasons: (1) the Boards alleged failure to require the applicant to submit an environmental analysis; (2) the Boards alleged erroneous determination that only a portion of Bee Hill Road (from Taconic Trail to the proposed Foxwood Lane) served as access and was adequate; (3) the Decisions alleged contradiction of the comments of CHA (an independent engineering consultant) and David Loring (an engineer with Tighe & Bond) regarding traffic safety and adequate access; (4) the Boards alleged failure to address safety concerns raised by the towns fire chief; (5) the Boards alleged failure to address traffic safety hazards for the entire length of Bee Hill Road; (6) the Boards alleged improper reservation of issues of substance for later determination (the maintenance plan for the fire suppression tank, the home owner associations declaration, the inspection/maintenance protocol for drainage ponds, and the drainage system for Foxwood Lane); (7) the Boards alleged improper approval of the drainage and stormwater systems that are allegedly inadequate and allegedly will have an adverse effect on groundwater and surface water quality; (8) the Boards alleged failure to require the improvements to Bee Hill Road to be built prior to the construction of Foxwood Lane; (9) the Boards alleged failure to ensure that the conditions in the Decision will be performed; (10) the Boards alleged failure to require soil boring tests and additional percolation tests to characterize the propertys soil as recommended by the engineering consultants; [Note 17] (11) the Boards alleged failure to evaluate the project under the Public Shade Tree Law and the Scenic Roadway Regulations; and, finally, (12) the Boards alleged failure to require that an independent engineer supervise and inspect the construction and improvements of the road and drainage systems. Complaint at ¶ 31 (May 31, 2006) (filed in Misc. Case No. 324035); Complaint at ¶¶ 42, 44-48 (Feb. 11, 2008) (filed in Misc. Case No. 370547). These issues are each discussed below.
The Requirement for the Applicant to Submit an Environmental Analysis
When submitting a definitive plan of a subdivision to the Board for approval, § 170-3.5.D of the Subdivision Rules and Regulations (Rules and Regulations) only requires the applicant to submit an environmental analysis for any subdivision creating frontage potentially allowing a major residential development, as defined by Chapter 70, Zoning, and for any nonresidential subdivision, and in other cases where the board determines it appropriate in light of special circumstances. (emphasis added). The Williamstown Code defines a Major Residential Development as the following:
[e]ither of the following if occurring within a twelve month period from or on a parcel or set of contiguous parcels in common ownership as of the effective date of this provision: A. Land division (whether a subdivision or not) so as to increase the number of buildable lots (unless restricted from residential use) by more than seven within any twelve-month period, or by more than 40 lots cumulatively subsequent to May 24, 1989, or B. On premises other than assisted living residence, or in the Station Mill Redevelopment District, or land division noted above, issuance of building permits for the construction of more than eight dwelling units within any twelve-month period, or of more than 40 dwelling units cumulatively subsequent to May 24, 1989.
Zoning Code § 70-9.2.
I agree with the plaintiffs that a fair reading of Subdivision Rules and Regulations § 170-3.5.D required the applicants to submit an environmental analysis despite the fact that the proposed subdivision does not actually depict a Major Residential Subdivision because it contains enough frontage to potentially allow for one. However, the plaintiffs argument fails because Charles LaBatt, an engineer with Guntlow & Associates, Inc. (which prepared the definitive plan submissions), testified that he did indeed submit an environmental analysis (dated Feb. 10, 2006) to the Board. [Note 18] Trial Transcript Day 3 at 269, Lines 12-16 (April 10, 2008). The applicants attorney attempted to submit the document into evidence and it was marked by the court as Exhibit 57 for identification purposes only. The plaintiffs attorney objected to it being admitted into evidence. Since such objection was sustained, I cannot review the document to determine whether it complied with § 170-3.5.D or whether the information substantively complies with the Rules and Regulations requirements. As a result, I am left only with Mr. LaBatts testimony that he submitted an environmental analysis to the Board, which I find credible. Since it is the plaintiffs burden to prove that the definitive plan should not have been approved, since the plaintiffs objected to the evidence necessary for me to make that determination with regard to the environmental analysis, and since Mr. LaBatts uncontroverted testimony suggests that one indeed was submitted, the definitive plan cannot be disapproved based upon § 170-3.5.D. The plaintiffs claims regarding the environmental analysis are thus DISMISSED, in their entirety.
The Adequacy and Safety of Bee Hill Road
Access to the subdivision is from Bee Hill Road, a dirt and gravel road that, in some sections, is narrow and steep. Several neighbors testified that Bee Hill Road becomes rutted during wet weather and, at certain points during the season, the road deteriorates. Numerous photographs were admitted into evidence suggesting the same. The neighbors also testified that they have had difficulty traveling when a vehicle is coming in the opposite direction (certain sections of the road allegedly cannot accommodate two cars at the same time), some testified that they have to pull over to get out of the way, and some testified that cars have become stuck in the ditch along the road. The neighbors were particularly concerned with the condition of the section of the road towards Cold Spring Road where no improvements have been proposed by the applicants. The neighbors also argue that the additional traffic from the Foxwood Lane Subdivision will worsen the condition and safety of Bee Hill Road and that the road does not serve as adequate access. [Note 19]
The Subdivision Rules and Regulations state that [w]ays shall normally be considered to provide adequate access to proposed subdivisions only if they provide connection to a state-numbered highway via roads which with no more than minor exceptions continuously meet the standards of Article IV, except for right-of-way width. Rules and Regulations § 170-2.3.B(2). However, [t]he Board may waive strict compliance with these access requirements only upon its determination, following consultation with the Town Manager, Director of Public Works, Police Chief and Fire Chief, that the way in fact will be sufficient to serve proposed uses of land. Id. at § 170-2.3.C. Article IV outlines the design and construction requirements for subdivisions and, in particular to this case, provides the geometric requirements for the new construction of subdivision streets. Although Bee Hill Road obviously is a preexisting street, the geometric requirements apply to determine whether or not Bee Hill Road provides adequate access to the proposed subdivision. Rules and Regulations § 170-2.3.B(2)
The geometric requirements vary depending on the type of road involved. Although the parties presented various arguments regarding the classification of Bee Hill Lane, a fair reading of the definitions can only result in the conclusion that it is a minor street, [a] street which cannot qualify as a lane, but which can be expected to handle less traffic than a collector street. Id. at § 170-2.1. The plaintiffs argue that Bee Hill Road is a collector street since some drivers use Bee Hill Road as a short cut to New York state. However, the Rules and Regulations define a collector street as [a] street which handles average daily traffic equivalent to that generated by 50 homes or more (500 trips or more, based on the ITE Trip Generation Manual). Id. Currently, based upon traffic counts conducted by Vincent P. Guntlow & Associates, there is an average of 129 trips per day. Agreed Ex. 11 at 1; Trial Transcript, Day One at 131-33, 189 (David Loring). Even with the additional daily traffic from the proposed Foxwood Lane Subdivision, Bee Hill Road will only handle approximately 219 trips. Trial Transcript, Day One at 131-33, 189. This obviously is no where near the 500 trips or more that define a collector street. Rules and Regulations § 170-2.1. The Applicants characterized Bee Hill Road as a lane, which is defined as [a] street which carries traffic equivalent to that generated by 12 or fewer dwelling units (120 trips or fewer, based on the ITE Trip Generation Manual), which provides access to no abutting property either used or zoned for business or industry, and which is not capable of extension. Id. Again, the number of trips on Bee Hill Road obviously exceeds the 120 trips that define a lane. Accordingly, Bee Hill Road can only be classified as a minor street.
The Rules and Regulations have the following geometric requirements for a minor street: (1) minimum center-line radius of 150 feet; (2) minimum design speed for sight distance of 20 mph ([d]esigned to based on AASHTO standards and, for intersections, the highest street category involved); (3) pavement edge radius at corner of twenty-five feet; (4) minimum right-of-way of fifty feet; (5) minimum pavement width of twenty-four feet; (6) maximum center-line grade of ten percent; and (7) minimum leveling area length of forty feet. Rules and Regulations § 170-4.2.B. In addition, where, as may be the case here for portions of Bee Hill Road, [Note 20] there are streets or street segments where average slopes exceed 15% across the street center line, hillside requirements apply. Id. at 170-4.2.B. In hillside conditions, the following requirements apply: (1) minimum center-line radius of one-hundred feet; (2) minimum right-of-way of forty-five feet; (3) minimum pavement width of twenty feet; (4) maximum center-line grade of twelve percent; and (5) minimum leveling area length of twenty feet. Id.
Several individuals testified regarding the current width of Bee Hill Road. Tighe & Bond measured the traveled portion of the road (from shoulder break to shoulder break) as ranging between thirteen feet and eighteen feet (although the width for the entire length of the road was not measured). Trial Ex. 44. Most measurements fell within the fourteen- to sixteen-foot range. Id. It also measured the road width (from the road edge to the road edge) as ranging between fourteen and seventy-two feet. [Note 21] Id. Most measurements fell within the seventeen- to twenty-foot range. Id. David Loring, a traffic engineer with Tighe & Bond, testified that the Bee Hill Road right-of-way is 33.5 feet wide. Trial Transcript, Day One at 220.
Alan Evenson, a neighbor, also took measurements along Bee Hill Road at 200-foot increments, measuring what he identified as the traveled way. In February 2006, Mr. Evensons measurements ranged from 11.5 feet to seventy-two feet. [Note 22] Trial Ex. 46A. Most measurements fell within the twelve-foot to sixteen-foot range. Id. Mr. Evenson again took measurements in July 2007, which ranged from eleven feet to seventy-four feet. [Note 23] Trial Ex. 47. Again, most measurements were in a similar range: from thirteen to eighteen feet (the majority of which (twenty-two measurements) were in the thirteen- to 13.9-foot range). Id. Finally, Mr. Evenson took measurements in March 2008, which ranged from 13.4 feet to eighteen feet. Trial Ex. 48. Mr. Evenson did not take as many measurements in the March 2008 exercise and did not measure the intersection with Taconic Trail (see n.21, supra). Id.
Timothy Kaiser, the Director of Public Works, also took three measurements of Bee Hill Road where he observed the road to be the narrowest. He testified that none of those locations were less than fourteen-feet wide. Trial Transcript, Day Three at 207. Finally, Jim Dietrich, the senior transportation engineer for Fuss & ONeill, testified that he also took measurements of Bee Hill Road, which ranged from fifteen feet to eighteen feet. Trial Transcript, Day Four at 252-55.
The majority of these measurements clearly do not meet the minimum width for hillside conditions of twenty feet or the minimum right-of-way of forty-five feet. However, the Rules and Regulations explicitly state that a way need not meet the Article IV right-of-way width standard. Rules and Regulations § 170-2.3.B(2). The Applicants also have proposed to improve Bee Hill Road between the entrance to the subdivision and Taconic Trail. After such improvements, several sections of Bee Hill Road between the proposed Foxwood Lane and Taconic Trail will be widened to encompass bump outs that will result in those sections being twenty-feet wide. Trial Ex. 10, Bee Hill Road Improvements (April 6, 2006).
Although the Applicants are not paving Bee Hill Road, the improvements include grading the road, replacing the surface materials, installing geotextile fabric, installing a splash pad in the ditches, installing drainage measures, and improving the pond discharge pipe. See Trial Ex. 10. These improvements will result in better drainage and surface conditions for Bee Hill Road between Foxwood Lane and Taconic Trail. Trial Transcript, Day One at 181 (testimony of David Loring); Trial Transcript, Day Three at 103-120 (testimony of Charles LaBatt); Id. at 195-97 (testimony of Timothy Kaiser).
Furthermore, the Board is permitted to waive compliance with its requirements. Specifically, [a] planning board, of course, enjoys broad discretion under G.L. c. 41, § 81R to waive strict compliance with the requirements of its subdivision rules and regulations when such waiver is in the public interest and not inconsistent with the intent and purpose of the subdivision control law; it is not, however, required to grant a waiver. A planning boards decision to grant or deny a waiver will be upheld unless premised upon a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.
Musto v. Planning Bd. of Medfield, 54 Mass. App. Ct. 831 , 837 (2002) (internal quotations and citations omitted); see also North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432 , 443 (1981) (noting that G.L. c. 41, §§ M, Q, R bespeak the Legislatures cognizance that planning decisions are rarely made by hard and fast rules. Planning board regulations may permit sufficient leeway for determination based on the individual facts of each case.); Mac-Rich Realty, 4 Mass. App. Ct. at 85 (quoting Caruso v. Planning Bd. of Revere, 354 Mass. 569 , 572 (1968)). Although case law also allows a court to find an implied waiver, the Rules and Regulations prohibit implied waivers. Specifically, § 170-5.3 states that [s]trict compliance with the requirements of this chapter may be waived when, in the judgment of the Planning Board, such action is in the public interest and not inconsistent with the Subdivision Control Law. When granting such waivers, the Planning Board shall clearly state its reasons in writing and make it part of its decision. [Note 24] (emphasis added).
In these cases, the Board explicitly waived the following requirements for Bee Hill Road (between Foxwood Lane and Taconic Trail): traveled width, paving, sidewalks and underground utilities. [Note 25] Decision at 2. I find and rule that such waivers are reasonable, are in the public interest, and are not inconsistent with the Subdivision Control Law. Bee Hill Road is a designated scenic roadway and thus cannot be upgraded (widened) easily without meeting the requirements of the Scenic Roads Rules and Regulations (Chapter 169). In addition, Bee Hill Road, even with the additional vehicles from the proposed subdivision, has very little traffic and there have been few accidents (so far as the record shows). [Note 26] As Jon Dietrich, a senior transportation engineer with Fuss & ONeill, noted, with the road improvements, low traffic volume, and low number of vehicles being added by the subdivision, Bee Hill Road (from Foxwood Lane to Taconic Trail) provides adequate access to the subdivision. Trial Transcript, Day Four at 268-72. Mr. Kaiser, the Director of Public Works, testified that the improvements will make the road safer. [Note 27] Trial Transcript, Day Three at 195. He also testified that he has never felt unsafe on the road and that cars are able to pass trucks (including construction vehicles) on Bee Hill Road. Id. Given Mr. Kaisers testimony that Bee Hill Road can accommodate construction vehicles and the lack of evidence to the contrary, Bee Hill Road presumably accommodates emergency vehicles as well. Furthermore, given the fact that the Fire Chiefs only remaining issue with the proposed development was the pavement of Foxwood Lane, I presume (without deciding) that in accordance with Rules and Regulations § 170-2.3.C, the Fire Chief did not have any concerns regarding access. Trial Ex. 13. The Board was thus reasonable in waiving the Rules and Regulations requirements in Article IV. See Windsor v. Planning Bd. of Wayland, 26 Mass. App. Ct. 650 , 657 (1988) (burden is on objector to show the Board erred in waiving requirements); Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 809 (1981) (If consonance with the public interest is a justiciable standard, it is obviously one that involves a large measure of judgment or discretion. If, in a given case, it is one as to which reasonable minds might in good faith differ, without doubting the reasonableness of the opposing view, the conclusion reached by the planning board should be sustained on judicial review. For it is the board, not the court, to whom the statute delegates discretion, and the role of the court is merely to ascertain whether the board exceeded its authority.).
As noted above, the definitive plan also must conform to zoning requirements, including Zoning Code Article V (Development Standards). With respect to access, that section requires that the development is served by a street providing adequate access as required by § 170-2.3 of Chapter 170, Subdivision Rules and Regulations, as already discussed above. Zoning Code § 70-5.2.A(1). In addition,
[a]pplications for major developments (see definition, § 70-9.2) shall include a traffic impact study, and such developments shall be authorized only upon determination by the SPGA that, based upon facilities as existing or committed to be improved by the town or the applicant, the following will be met:
(a) Sight distance. Sight distance at the point of egress shall meet AASHTO standards, based on observed (not posted) travel speeds.
(b) Volume/capacity ratio. On no lane of any street or intersection shall the volume/capacity ratio be increased by more than 0.1 above baseline as a result of projected traffic, with baseline being the ratio resulting from the traffic forecast in five years, given development of the premises for single-family residences as allowed under this chapter with no density bonuses.
Id. at § 70-5.2.A(2). The plaintiffs contend that the proposed subdivision must also comply with this section. However, the definitive plan does not depict a major development. See The Requirement for the Applicant to Submit an Environmental Analysis section, supra. The Zoning Code makes clear that § 70-5.2A(2) only applies to applications for a major development (versus ones that potentially could be a major development). Here, the plan depicts eight building lots, one of which is restricted from future conveyance, and two non-buildable lots (Lots 8a and 8b) that also are restricted from future conveyance. Accordingly, the Foxwood Lane Subdivision is not a major development and it, therefore, does not need to meet the provisions of § 70-5.2.A(2). [Note 28]
Even if it did, Bee Hill Road would meet the relevant American Association of State Highway and Transportation Officials (AASHTO) guidelines and would thus comply with § 70-5.2.A(2)(a). [Note 29] Since Bee Hill Road has fewer than 400 daily trips on average, the Guidelines for Geometric Design of Very Low-Volume Local Roads applies (Trial Ex. 41). [Note 30] Although the plaintiffs contend that Bee Hill Road does not meet numerous AASHTO guidelines, the Zoning Code only requires it to meet AASHTO standards for sight distance. [Note 31] Zoning Code § 70-5.2.A(2). Sight distance is the length of roadway ahead visible to the driver. The available sight distance on a roadway should be sufficiently long to enable a vehicle traveling at or near the design speed [here, 30 mph] to avoid colliding with a stationary object in its path. Trial Ex. 41 at 30. Stopping sight distance is generally determined as the sum of two distances: (1) the distance traversed by the vehicle from the instant the driver sights an object necessitating a stop to the instant the brakes are applied; and (2) the distance required to stop the vehicle from the instant brake application begins. Id. at 31. For an existing road that is characterized as a higher risk location [Note 32] and has 100 to 250 vehicles per day, the recommended stopping sight distance is 165 feet for a design speed of 30 mph and 250 feet for a design speed of 40 mph. [Note 33] Id. at 39.
The stopping sight distances for the intersection of the original location of Foxwood Lane and Bee Hill Road easily meet that requirement. Here, Vincent P. Guntlow & Associates determined, based upon a traffic analysis conducted, that ninety percent of traffic travels at a speed of 30 mph or less. [Note 34] Trial Ex. 11; Trial Ex. 12 (indicating the ninetieth percentile traveled at 27 mph). This observed speed is the design speed for all of the AASHTO measurements. The traffic analysis outlined in Charles LaBatts letter (Trial Ex. 11) concluded that there is a stopping sight distance of 262 feet for 30 mph design speed and 352 feet for eastbound traffic traveling at 40 mph. Trial Ex. 11. After the proposed improvements are made on Bee Hill Road, there will be a stopping sight distance of 355 feet for eastbound traffic (presumably for traffic traveling at 40 mph). Id. Although no figures were provided for westbound traffic at the original intersection location, Mr. LaBatt indicated that the westbound traffic conditions exceed required distances. [Note 35] Id. After moving the entrance to the proposed Foxwood Lane, the stopping sight distance for eastbound traffic is approximately 500 feet. [Note 36] Trial Ex. 56, Petition for Modification of Approved Definitive Plan at 4 (Nov. 21, 2007). The stopping sight distance for westbound traffic at the new intersection location is approximately 320 feet for a design speed of 40 mph. Id.
Fuss & ONeill also calculated stopping sight distance for the intersection of Bee Hill Road and the (new) proposed Foxwood Lane. Jon Dietrich testified that the stopping sight distance to the south (traveling from Taconic Trail towards the driveway) was 640 feet (corresponding to Mr. LaBatts eastbound traffic data). [Note 37] Trial Transcript, Day Four at 261. He also measured the stopping sight distance to the north (for a car traveling from Cold Spring Road toward the driveway) as 297 feet (corresponding to Mr. LaBatts westbound traffic data). Id. at 264. Mr. Dietrich testified that both measurements were well in excess of the 165 feet required by AASHTO for low-volume roads (for the design speed of 30 mph). [Note 38] Id.
The proposal also exceeds AASHTO requirements for intersection sight distances. AASHTO states that for intersections with stop control on a minor road, the intersection sight distance should be at least equal to the stopping sight distance. . . . Trial Ex. 41 at 46. Mr. LaBatts letter states that for vehicles traveling 40 mph, the left sight line exceeds 500 feet and the right sight line exceeds 405 feet. Trial Ex. 11. This exceeds the 250 feet required for the 40 mph design standard (a stricter standard than the 30 mph standard (165 feet) required by the rules and regulations). After moving the entrance to the proposed driveway, [a]pproximately 400 feet to 450 feet is provided in the western direction [left/south]. This surpasses AASHTO Low-Volume Local Roads requirement of 250 feet . . . . Some brush immediately west of the intersection will be cleared to provide this sightline. With minor brush clearing, the eastern sight line [right/north] is approximately 375 feet, again surpassing the applicable AASHTO benchmark of 250 feet for Low-Volume Local Roads. Trial Ex. 56 at 4. Mr. Dietrich testified that the 165-foot requirement was met, finding intersection sight distances of 365 feet to the north (towards Cold Spring Road) and 240 feet to the south (towards Taconic Trail). Trial Transcript, Day Four at 266.
Finally, although Bee Hill Road does not meet every single design standard set forth in the Rules and Regulations or the AASHTO guidelines (e.g., road width) (nor is it required to), [Note 39] the guidelines provide further support for the Boards finding that Bee Hill Road from Foxwood Lane to Taconic Trail nevertheless provides adequate access to the subdivision. As noted in the manual, [t]he geometric design of very low-volume local roads presents a unique challenge because the very low traffic volumes and reduced frequency of crashes make designs normally applied on higher volume roads less cost effective. Trial Ex. 41 at xxi. Furthermore, [f]or existing roads [like Bee Hill Road], application of the design guidelines . . . should result in a slight improvement in systemwide safety. Id. at 14 (emphasis added). Due to such minimal results, the manual recommends improvements only at locations on existing roads where site-specific safety problems are found. Id. Where documentable site-specific safety problems do not exist, it is unlikely that any roadway or roadside improvement would provide substantial safety benefits. Id. at 15.
This sentiment was echoed at trial. The plaintiffs expert, David Loring, stated that he would not recommend paving the entire road and conceded that AAHSTO suggests that roadside clear zones (i.e., widened sections of the road) provide little benefit on low-traffic roads. Trial Transcript, Day One at 182-84. Joseph Romano, the Boards independent reviewing engineer, agreed in general that strict compliance with the towns requirements would not necessarily be prudent or cost effective. Trial Ex. 32 at 73. In addition, some of the plaintiffs testified that they did not support (or had mixed feelings regarding) paving or widening Bee Hill Road, fearing that it would enable drivers to go dangerously fast and change the aesthetics and historical character of the road. [Note 40] Trial Testimony of Alan Evenson, Day Two at 19-20; Trial Testimony of Judith Turbin, Day Two at 39. Although there was testimony of a few incidents where cars went into roadside ditches due to difficulty passing, such testimony does not suggest that there are documentable site-specific safety problems warranting costly and potentially minimally effective improvements. In addition, there may also be limitations on the applicants ability to make such changes to Bee Hill Road, even if warranted, due to it being designated a scenic road. See discussion, infra.
Although I find that the Board was reasonable in finding adequate access from Foxwood Lane to Taconic Trail along Bee Hill Road (and therefore AFFIRM its decision on that point), there was credible testimony to suggest that some traffic to or from the proposed Foxwood subdivision will use the section of Bee Hill Road going towards Cold Spring Road. Specifically, the traffic study indicated that during the morning peak hour, there were nineteen vehicle trips at the location of the proposed Foxwood Lane, ten of which were heading east towards Cold Spring Road. Trial Ex. 11; Trial Transcript, Day One at 135 (David Loring agreed with the results of the traffic study outlined in Trial Ex. 11). During the evening peak hour, there were nine vehicle trips, with six heading east towards Cold Spring Road. Id. This data suggests that at least half of the current traffic goes towards Cold Spring Road and, therefore, the Board was not reasonable in assuming that only the portion of Bee Hill Road between Foxwood Lane and Taconic Trail would be used for access to the subdivision. [Note 41] See Rattner v. Planning Bd. of W. Tisbury, 45 Mass. App. Ct. 8 , 10-12 (1998). Since the Board explicitly stated that access to Foxwood Lane is presumed to be from Taconic Trail and explicitly found that section to be adequate, Decision at 2, I cannot find that it implicitly waived the access requirements for the remaining portion of Bee Hill Road. Nor can I find that the Board implicitly found that that section provided adequate access to the subdivision. Accordingly, this issue is REMANDED to the Board in order to determine whether Bee Hill Road from the proposed Foxwood Lane to Cold Spring Road meets the requirements of Rules and Regulations §170-2.3, whether the Board finds that a waiver is appropriate if such requirements are not met, and whether (in its judgment) that section of Bee Hill Road provides adequate access.
The plaintiffs argue that the Board erred in failing to require the Applicants to complete the improvement work on Bee Hill Road prior to constructing Foxwood Lane. The plaintiffs are correct that Condition 3 requires improvements following construction. However, when the Decision addresses each of the specific improvements, it states that the improvements must be completed at the beginning of construction or prior to Foxwood Lane being constructed. Accordingly, this issue is REMANDED for the Board to provide further clarification and to correct these inconsistencies.
Finally, the plaintiffs argue that the Board erred in failing to require adequate assurances that the work on Bee Hill Road will be performed properly and timely. They argue that the Board should have required that the Applicants hire an independent engineer to supervise the construction. This argument is factually incorrect and not supported by any Rules and Regulations. The Decision contains several conditions that require the Applicants to perform the work properly as indicated on the plans. Decision at Findings 1; Conditions 2, 3, 5, 6, 9, and 12. In addition, Rules and Regulations § 170-5.1.A requires the Department of Public Works to appoint an agent and instruct said agent to make continuing inspections of the work to ensure that the requirements listed below are adhered to. In addition [t]he Planning Board may retain independent consultants at the reasonable expense of the developer . . . to ascertain whether these regulations and construction specifications have been met. Rules and Regulations at § 170-5.1.B (emphasis added). Although the plaintiffs appeared to suggest at trial (and in their post-trial briefs) that the town does not have the expertise to ensure that the Decision Conditions are adhered to, there was no credible evidence suggesting that the town is incapable of fulfilling its responsibilities. Furthermore, the Rules and Regulations do not require the Applicants to hire independent consultants. As a result, the Board clearly did not err in failing to require consultants be hired. It should also be noted that this court can assume that the Applicants will comply with the Decision of the Board.
The Drainage and Stormwater Systems Proposed for the Foxwood Development
The Subdivision Rules and Regulations state that [s]torm drains, culverts, swales, detention basins and related facilities shall be designed to permit the unimpeded flow of all natural watercourses, to ensure adequate drainage at all low points along the streets, to control erosion, to intercept stormwater runoff along streets at intervals reasonably related to the extent and grade of the areas being drained and to control the location, rate and quality of stormwater discharge from the development. Rules and Regulations § 170-4.3.A(1). In dispersed-type subdivisions [such as the proposed Foxwood Land subdivision,] [Note 42] an open drainage approach will normally be appropriate, with roadway design aimed at removing water from paved surfaces continuously rather than at infrequent catch basins or spillways, and using swales and ponding areas in preference to gutters, catch basins and piped stormwater. Id. at § 170-4.3.A(2).
The Rules and Regulations specifically require that stormwater management systems be designed to meet the following requirements:
In storm events up to a fifty-year storm, peak flows in downstream drainage facilities and receiving streams and sheet runoff onto adjoining properties shall be no higher following development than prior to development, unless an increase is authorized by the Planning Board, following consultation with the Conservation Commission and consideration of the ability of receiving facilities, wetlands or water bodies to absorb the increase, and the consequences of providing detention capacity. Drainage systems shall be designed based on a ten-year frequency storm, except that detention facilities shall be based on a fifty-year storm, and in a one-hundred year storm streets shall be inundated not more than six inches deep and a building site on each building lot shall remain uninundated. Drainage design shall accommodate and account for drainage from foundation drains and cellar sumps.
Id. at § 170-4.3.A(3)(a). In addition, detention basins must meet the following requirements:
(1) Depth and grading. Basin overspill height shall be not less than one foot above the highest water surface projected for the design storm, and shall not exceed five feet above bed elevation. The slope of detention basin walls shall not exceed one foot vertical in three feet horizontal.
(2) Base determination.
a. The base of the detention basin shall be a minimum of two feet above the maximum water table as defined by the Town of Williamstown Board of Health regulations. (Deep tests shall be made between February 15 and May 15.)
b. Groundwater level shall be certified by a registered professional engineer. The detention basin base must be entirely below the existing grade, not constructed on fill material.
Id. at § 170-4.3.D.
There was extensive testimony regarding the drainage and stormwater systems in the proposed subdivision. First, there was ample testimony that showed the proposed stormwater management system meets the requirements of § 170-4.3.A(3)(a). Specifically, there was persuasive testimony that the post-development peak flows will be less than pre-development peak flows for storms up to and including the one-hundred-year storm. Trial Transcript, Day Three at 239 (Charles LaBatt testified regarding two-, ten-, twenty-five, fifty-, and one-hundred-year storms); Trial Transcript, Day Four at 190 (Eric Bernardin regarding two-, ten-, twenty-five- and one-hundred-year storms). This testimony is consistent with the data provided in the Applicants Petition for Modification of Approved Definitive Plan (Trial Ex. 56), which clearly shows that for two-, ten-, twenty-five, fifty-, and one-hundred-year storms, the peak discharges after the subdivision is developed are either the same as current conditions or less. Trial Ex. 56 at Drainage Calculation Summary pages 2, 4. Mr. Houston, plaintiffs expert, even conceded that the post-development flow rate is less. Trial Transcript, Day Two at 257-58; Trial Transcript, Day Five at 91. The plaintiffs also appear to concede this point in their post-trial brief. Plaintiffs Post-Trial Memorandum at 86 (Aug. 22, 2008) (the flow rate over this overall length is shown to be less).
Despite this, Mr. Houston contends that under post-development conditions, the volume of runoff will increase dramatically due to the increase in impervious surfaces. Mr. Houston, however, provided no persuasive evidence that this will actually be the case. In addition, the drainage summary in Trial Exhibit 56 specifically notes that drainage calculations were made taking into account the amount of impervious area permitted by the Board in the original Decision. Trial Ex. 56, Drainage Calculation Summary at 3. Mr. Bernardin also testified that he did not agree with Mr. Houstons theory that the volume of post-development runoff will increase. Trial Transcript, Day Six at 150. Based on the evidence, I find that the plan meets Rules and Regulations § 170-4.3.A(3)(a) and I therefore DISMISS the plaintiffs claims regarding this issue, in their entirety.
The plaintiffs also argue that the Applicants submissions are inadequate because they do not describe the off-site effects of a one-hundred-year storm, as required by § 170-3.5.A(1)(f). However, as noted above, post-development peak flows are less than current conditions for the one-hundred-year storm. Mr. LaBatt testified that, as a result, the Foxwood Lane subdivision will not impact off-site properties. Trial Transcript, Day Three at 240. Similarly, Mr. Bernardin testified that the likelihood of any downstream impacts is negligible. Trial Transcript, Day Four at 191. He also noted that [i]t is the standard of care in our industry and also a requirement of the DEP stormwater guidelines, which have been admitted, that if your peak flows for the 2-, 10-, 25-, 50-, and 100-year event are less than the existing conditions, then off-site areas do not need further study. Id. at 145. Mr. Houston even conceded that he had no basis to conclude that water discharges from the development will impact downstream properties such as the Keiser-Clarks. [Note 43] Trial Transcript, Day Six at 28. Mr. Bernardin went further, testifying that since the rate of flow will be less post-development, there will be no additional impact to the ravine or to the volume of water reaching the Keiser-Clark property. Id. at 137-43. Overall, he stated that there will be no cumulative or adverse impacts down gradient of the project. Id. at 147.
As noted by the Applicants, one of the main concerns of the plaintiffs with regard to off-site impacts appears to be the potential for the embankments of the detention basins to fail, resulting in large volumes of water flowing down gradient. However, there was significant, credible testimony that the likelihood of an embankment failure is negligible. For example, Mr. Bernardin testified that the likelihood of embankment failure is [b]elow extremely remote, almost impossible. Id. at 204. In addition, as Mr. LaBatt noted, the Zoning Code and the Rules and Regulations do not require an applicant to submit calculations for off-site impacts based upon a scenario that assumes embankment failure. [Note 44] Id. at 24. Based upon all of this testimony, I find that since the evidence shows that there will be no off-site impacts, the Applicants met the requirement of Rules and Regulations § 170-3.5.A(1)(f) and thus DISMISS the plaintiffs claims on this issue, in their entirety.
There also was credible testimony that indicates the Applicants designed the subdivision so that resulting stormwater conditions resemble, as nearly as possible, preexisting conditions of volume, velocity, quality and location of runoff, as required by Zoning Code § 70-5.3.B. See Trial Transcript, Day Three at 239. Indeed, Mr. Bernardin testified that the applicants attempted to mimic existing (pre-development) conditions even more than he would have in designing the system. Trial Transcript, Day Four at 230. For example, spreaders will be installed at discharge points from the detention basins. Mr. Bernardin testified that the spreaders will reduce the energy of water discharges, prevent erosion, and will disperse the flow of water across the hill. Trial Transcript, Day Six at 127-29. Although Mr. Houston asserted that the flow of water will be more concentrated due to the discrete discharge points from the basins, he did concede that the installation of spreaders would reduce it. Id. at 26. In addition, Mr. Bernardin and Mr. LaBatt both stated that the flow of water on the property currently is concentrated at various points and it does not, as Mr. Houston appears to argue, flow evenly across the entire property due to the topography of the property. Id. at 128-29, 258. This testimony is consistent with the drainage calculation study in the Applicants Petition for Modification (Trial Ex. 56), which indicates that there currently are five discrete discharge points leaving the property. Trial Ex. 56 at Drainage Calculation Summary page 2; see also Existing Drainage Areas map attached to the Summary (Nov. 6, 2007). These discharge points are shown as generally being maintained post-development. Trial Ex. 56 at Drainage Calculation Summary pages 3-4; see also Proposed Drainage Areas map attached to the Summary (Nov. 6, 2007). I therefore find and rule that the Applicants met the requirements of Zoning Code § 70-5.3.B and thus DISMISS the plaintiffs claims on this issue, in their entirety.
Mr. Houston also was concerned about the Applicants alleged failure to describe and account for potential groundwater impact from the development (in particular, the issue of stormwater recharge), arguing that the environmental analysis failed to adequately evaluate this issue and the Applicants have not adhered to the Department of Environmental Protection (DEP) best management practices by using infiltration methods. First, as noted above, the environmental analysis is not part of the evidentiary record in this case. I therefore cannot conclude whether it adequately evaluated any alleged groundwater impacts. Second, the towns Rules and Regulations do not require the Applicants to adhere to DEP best management practices (BMPs) (including infiltration) and, therefore, the application cannot be disapproved for failure to comply with the DEP BMPs (regardless of whether the Applicants stated that the project intends to implement BMPs or not). Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 696 (1996); Fairbairn, 5 Mass. App. Ct. at 177. Indeed, Mr. Houston even conceded this point. Trial Transcript, Day Two at 254. Third, Mr. LaBatt testified that each home will utilize infiltration trenches for stormwater runoff from roofs and site improvements such as driveways so the project does apply at least some infiltration practices. Trial Transcript, Day Four at 59-62; Trial Transcript, Day Five at 98 (Mr. Houston agreeing that at least lots 3, 4, and 5 meet infiltration practices).
Fourth and finally, the plaintiffs contention that the Applicants are required to meet certain DEP requirements is incorrect because significant testimony indicates that the detention basins do not discharge into a resource area or the buffer zone. [Note 45] There is an interim wellhead protection area near the detention basins (as shown in Trial Ex. 59), which Mr. LaBatt acknowledged is a critical area since it corresponds to a recharge area. Trial Transcript, Day Four at 95-96. However, both Mr. LaBatt and Mr. Bernardin testified that since the project does not discharge water into the interim wellhead protection area (see Trial Ex. 59), the Applicants do not have to implement the DEP BMPs. Trial Transcript, Day Four at 71-76, 192, 213-15. In any event, Mr. Bernardin testified that the project does meet the relevant DEP requirements. Id. at 233; Trial Transcript, Day Six at 125-26. Based upon Trial Ex. 64, it also appears that the Applicants have implemented at least one of the BMPs recommended under Standard 6 (an extended (dry) detention basin). Trial Ex. 64 at 8; see also Trial Transcript, Day Six at 153 (Mr. Bernardin). Mr. Houston even stated that [t]he open basins were extended dry detention basins, which are identified as a best management treatment practice in the Massachusetts stormwater policy. Trial Transcript, Day Five at 135. The fact that an infiltration basin is listed as another BMP does not require the Applicant to select it. Indeed, Mr. Bernardin testified that infiltration is not necessarily the best practice for this project. Trial Transcript, Day Four at 218.
The plaintiffs also make several arguments regarding the design of the detention basins and the information submitted related to the basins, claiming that they do not meet the requirements of the Rules and Regulations. First, the plaintiffs contend that the bases of the basins do not meet the requirement of Rules and Regulations § 170-4.3.D(2)(a), which requires the base to be a minimum of two feet above the maximum water table. Related, the plaintiffs argue that the Board could not determine whether this section was complied with because the Applicants failed to take test pits at the location of the detention basins, the test pits were not conducted between February 15th and May 15th (as required by § 170-4.3.D(2)(a)), and water table information was not actually submitted to the Board. Mr. Houston testified that this information is crucial because if the separation is not maintained, groundwater can seep into the detention basin, which will reduce its capacity during storms. Mr. Houston also was concerned about the separation being maintained in order to allow water to infiltrate the soil; however, he conceded that the detention basins were not designed to be infiltration basins. Trial Transcript, Day Five at 135. Rather, they were designed to be dry detention basins. Id.
Mr. LaBatt conceded that the test pit data was not submitted to the Board, but was submitted to the Board of Health. However, in response to comments and concerns posed by the towns engineering firm and the plaintiffs consultants, Mr. LaBatt submitted a letter to the Board that summarized the water table data. Trial Ex. 11. Specifically, Mr. LaBatt noted the following:
Numerous test pits were excavated and observed, although typically only the ones suitable for septic use were recorded in detail. . . . From the twenty-two test pits that were recorded, typical depths to the underlying parent material was between 1-2 feet. The average season high groundwater table from the test pit data is 30. These test pits were performed from May through July and no actual groundwater was noted coming into any of the pits during the evaluations.
* * *
The inverts of the stormwater management ponds have been designed to be at, or very near the existing grade. None of the open detention ponds have been designed to use infiltration as part of the treatment of the stormwater, thus do not require a separation to groundwater to function. All of these ponds will have a perforated pipe bedded in crushed stone along the invert of the pond to maintain a dry bottom between storm events.
Id. at 2, 3.
This summary was corroborated by evidence and testimony at trial. The Soil Suitability Assessment for On-Site Sewage Disposal reveals water table information, which ranges from eighteen to forty-eight inches. [Note 46] Trial Ex. 62. This information was gathered based upon the presence of mottling, which is a staining of the soils due to the presence of water. Mr. LaBatt testified that using mottling as an indication of the seasonal high groundwater table is a more conservative . . . a higher groundwater table than is actually observed on many years. Trial Transcript, Day Three at 251. In addition, Mr. LaBatt and Mr. Bernardin testified that the seasonal high water table is approximately thirty inches based upon an interpolation of the data. [Note 47] Id. at 249; Trial Transcript, Day Four at 177. Mr. Bernardin also testified that the data shows that the water table is more than twenty-four inches below the surface for the developed portions of the property. Trial Transcript, Day Four at 200. In contradiction to this testimony, however, he acknowledged later that the basins do not meet that requirement. Trial Transcript, Day Six at 158. Although the two-foot separation may not be present, Mr. LaBatt testified that the installation of underdrains will ensure that a separation between the base of the basin and the water table is maintained. Trial Transcript, Day Four at 43. Mr. Houston even acknowledged that the underdrains, depending on the circumstances, would have the tendency to be able to keep checks on the groundwater. Trial Transcript, Day Five at 139; see also Trial Transcript, Day Two at 179 (underdrains will minimize groundwater entering basin and will prevent water from getting too high in the basin).
Mr. LaBatt and Mr. Bernardin further testified that since the basins are not designed as infiltration basins, the Applicants need not meet the two-foot requirement. Trial Transcript, Day Four at 45; Trial Transcript, Day Six at 155. In addition, Mr. Bernardin testified that even if there is less than a two-foot separation, the detention basins can still function properly. Trial Transcript, Day Six at 155. In such an event, the engineers should analyze the soils more closely and look at the grades more closely to ensure that adequate capacity is maintained. Id. Mr. Bernardin did just that in this case and found that the detention basins will function as designed. Id. at 156, 194.
Finally, it should be noted that neither the plaintiffs nor Mr. Houston conducted independent tests to counter the evidence that the average water table depth is thirty inches. Nor did they submit any evidence to suggest that the separation will not be maintained after the underdrains are installed. Nor did they submit any evidence to suggest that even if such separation was not maintained, that the basins will not have adequate capacity or will not function properly.
Based upon this evidence and testimony, I find that the Applicants use of data collected after May 15th was harmless, [Note 48] that their reliance on the interpolated average of the water table (thirty inches) was reasonable, that the installation of underdrains will provide sufficient safeguards should separation not be maintained, and that the detention basins will function properly. I also find that since a summary of this information was provided to the Board in response to criticisms levied by opponents of the project, all of these issues were likely considered by the Board. However, the record suggests that the Applicants did not meet the literal requirements of the two-foot separation in Rules and Regulations § 170-4.3.D(2)(a) and the temporal restrictions for data collection in that section. I thus REMAND these issues to the Board for further findings and to determine whether a waiver of the requirements of § 170-4.3.D(2)(a) is warranted.
The plaintiffs also argue that § 170-4.3.D(2)(b) was not complied with since certain detention basins are not entirely below grade and are constructed on fill material. Similarly, they contend that § 170-4.3.D(1) was not complied with because (they argue) the basin overspill height is less than one foot above the highest water surface for the fifty-year storm and because the slope of the outside of the basins exceeds one foot vertical in three feet horizontal. Plaintiffs allege that these items are required to ensure that the embankments of the detention basins will not fail and that the basins will have adequate capacity to handle significant storms.
Mr. Houston testified that the grading plans submitted to the Board indicate that the bases of the basins are above current ground elevation, meaning that the Applicants will necessarily have to construct them on fill. See Trial Ex. 8(7). However, Mr. LaBatt testified that the intent of the design was to avoid constructing the bases of the detention basins on fill to the extent possible. [Note 49] Trial Transcript, Day Four at 107. Mr. Bernardin likewise testified that the plans show an intent to build the basins at or near the surface. Trial Transcript, Day Six at 111. Mr. LaBatt did concede, however, that due to the topography of the area, the embankments (the walls of the basins) will necessarily be fill. Trial Transcript, Day Four at 107. Thus, as Mr. Bernardin acknowledged, the basins do not meet the actual verbiage of § 170-4.3.D(2)(b). Trial Transcript, Day Six at 159. Although this is not necessarily a problem (even Mr. Houston acknowledged that he has constructed basins on fill in the past, Trial Transcript, Day Two at 181), the basins do not comply with § 170-4.3.D(2)(b) in a literal sense and the Applicants must receive an explicit waiver from the Board if the subdivision approval is to be upheld. This issue is thus REMANDED to the Board for further findings and to determine whether a waiver of § 170-4.3.D(2)(b) is appropriate.
Mr. Bernardin testified that the detention basins meet the requirements of § 170-4.3.D(1). As noted above, § 170-4.3.D(1) requires [b]asin overspill height [to] be not less than one foot above the highest water surface projected for the design storm, and shall not exceed five feet above bed elevation. The slope of detention basin walls shall not exceed one foot vertical in three feet horizontal. Mr. Bernardin testified that, for example, basin 2C has 1.46 feet between the fifty-year storm elevation and the top of the berm of the basin, which he contends shows that the basin meets the 1-foot freeboard requirement. Trial Transcript, Day Six at 177-78 (reviewing Trial Ex. 8(7)). The plaintiffs contend that this separation still does not meet the requirement because the berm height is not the point of the overspill height. Specifically, they argue that the overflow weir height is the relevant measurement, which is at approximately the same height as the fifty-year storm event. [Note 50] Mr. LaBatt testified that for basin 2C, the spillway is approximately four feet from the base. Trial Transcript, Day Four at 31. Trial Exhibit 8(7) indicates the weir is located at an elevation of 959.5 feet. The only evidence of the height of the fifty-year storm in basin 2C was in calculations pertaining to the petition for modification. Trial Ex. 56 at Drainage Calculations Page 1.02. Although Trial Exhibit 56 indicates the fifty-year storm is at an elevation of 959.54 feet, as Mr. Bernardin noted, this data was calculated in 2007 and it is unclear whether it can be used with Trial Exhibit 8(7). Since this is a significant issue and there is disputed testimony as to whether basin 2C meets the requirement, this issue shall also be REMANDED to the Board for further findings and, if the basin does not meet the requirement, whether a waiver is appropriate. [Note 51]
The plaintiffs admit that the inside of each basin meets the requirement in § 170-4.3.D(1) that [t]he slope of detention basin walls shall not exceed one foot vertical in three feet horizontal. However, they argue that since the exterior slope is one foot vertical in two feet horizontal, the plan must be disapproved. Mr. LaBatt did not contest that the exterior slope does not meet this requirement. However, he noted that it does not need to, as evidenced by the accompanying diagram on page 17027 of the Rules and Regulation. Indeed, that diagram only shows the slope requirement on the interior of the detention basin. In addition, the Applicants plans clearly identify the exterior of the detention ponds having a slope of one foot vertical in two feet horizontal. Trial Ex. 8(10). Although a reasonable interpretation of § 170-4.3.D(1) suggests that it only applies to interior walls, since issues related to the design of the basins are already being remanded to the Board, this issue shall also be REMANDED to the Board for further findings and, if not met, whether a waiver is appropriate.
The plaintiffs also contend that the Applicants failed to meet the requirements of § 170-3.5.A(1)(f), [Note 52] claiming that the drainage plans do not adequately document the adequacy of the infiltration trenches shown on Trial Exhibit 8(10). Mr. Houston testified that he was concerned that the infiltration trenches would not work properly because of the shallow groundwater levels. The plaintiffs further argue that there is insufficient information on soils and water levels to determine whether the infiltration trenches will function properly. As discussed above, however, there was sufficient information regarding the groundwater levels. In addition, Mr. LaBatt testified that SCS soil data was submitted to the Board. Trial Transcript, Day Four at 155. Mr. Bernardin testified that NRCS soils information was included in the drainage calculations. Trial Transcript, Day 6 at 194. This information is sufficient to meet the requirements of the Rules and Regulations. Most importantly, however, the Applicants are not required to select a final location for the houses. See Fairbairn, 5 Mass. App. Ct. at 184-85. As a result, it would be impossible to specifically locate the infiltration trenches and thus nearly impossible to specifically document whether the placement of trenches in those locations would be appropriate. These determinations will be made when construction begins. This issue is thus not one for which the Board properly could have disapproved the plan. See id. (Board acts prematurely and unreasonably if it were to take any action regarding requirements pertaining to what may ultimately be constructed on each individual lot). The plaintiffs claims regarding the infiltration trenches are thus DISMISSED, in their entirety.
Finally, the plaintiffs contend that the stormwater design is insufficient because the Applicants failed to account for significant runoff and erosion potential. They first argue that the Applicants did not provide sufficient information with regard to the driveways for Lots 7 and 8. They are concerned that, depending on the location and design of the driveways, stormwater runoff might overload the detention basins. Mr. Houston testified that drainage swales and ditches would be required to accommodate stormwater runoff and that Mr. LaBatts calculations did not take these issues into account. First, as noted above, the Applicants are not required to specifically locate driveways or provide design details for them. See Fairbairn, 5 Mass. App. Ct. at 184-85. Second, in response to Mr. Houstons concerns, Mr. LaBatt performed an overload calculation for the watershed and concluded that the detention basins will have sufficient capacity for driveway runoff. Trial Transcript, Day Four at 139, 159; Trial Transcript, Day Six at 251. Mr. Houston even conceded that the treatment of the runoff from those surfaces, the driveways and the houses themselves [for at least lots 3, 4, and 5], . . . would meet the intent of the regulations to infiltrate that back into the ground. Trial Transcript, Day Five at 98.
Related, the plaintiffs contend that the Applicants failed to properly account for the increased impervious surface area and the decrease in trees on the property [Note 53] in their drainage design, which allegedly will result in erosion. They further contend that since slopes within the building envelopes range from twenty-four to twenty-five percent, the Zoning Code prohibits any impervious coverage. Trial Transcript, Day Five at 41-42 (citing Zoning Code § 70-5.3.C(4)(a)). These arguments are incorrect. First, as noted in § 70-5.3.C(4)(a), the limitation is for the site area, which is defined as the smallest single rectangle enclosing the area within which ground vegetation is removed for excavation, grading, driveways, lawns or gardens and average slope is measured prior to site preparation. Accordingly, whether the building site (versus the building envelope) complies with this section will be determined at a later date (when a building permit is sought) and is thus not properly an issue before me. Arrigo, 12 Mass. App. Ct. at 807-08 (There is no sound reason why the approval of a plan under the Subdivision Control Law . . . should preclude a building inspector or board of appeals from performing their statutory duties of requiring adherence to the towns zoning by-law, including any provision specifying minimum frontage, as a condition of buildability. An approval under the Subdivision Control Law has an entirely different significance, entitling the approved plan to recordation, and thus, in turn, affecting marketability of the lots shown on the plan.).
Second, as noted in the Decision, the Board placed a limit on the amount of lawns, impervious areas, and tree clearing. Decision at 5, Conditions 7 & 8. Mr. LaBatt further testified that the stormwater design took into account roads, driveways and site improvements. Trial Transcript, Day Four at 51, 62; Trial Transcript, Day Six at 253. Mr. Bernardin confirmed that Mr. LaBatt properly took into account the changes in land type and disagreed with the plaintiffs criticisms that the Applicants did not account for impervious surfaces. Trial Transcript, Day Four at 182; Trial Transcript, Day Six at 154. Trial Exhibits 8(8) and 8(9) also depict several erosion control measures that will be implemented. Finally, Mr. Houston admitted that he did not perform his own calculations regarding erosion and had no basis for his suggestion that erosion will result in water flowing onto the neighboring properties. Trial Transcript, Day Six at 28. I thus conclude that, based on the evidence at trial and despite the fact that there are significant slopes in the development, the Applicants have properly taken into account impervious surfaces and erosion potential. The plaintiffs claims regarding these issues are thus DISMISSED, in their entirety.
The Applicability of the Public Shade Tree Law and Scenic Roadway Regulations
Chapter 169 of the Williamstown Code, the Scenic Roads Rules and Regulations, requires [a]ny person . . . proposing to perform any repair, maintenance, reconstruction or paving work which involves the cutting of trees or the tearing down or destruction of stone walls on a scenic road [to] seek written consent of the planning Board as provided for in the Scenic Roads Act. Code § 169-7.A. Such work includes [a]ny work done that involves the cutting or removal of trees or the tearing down or destruction of stone walls within the town right-o[f]-way by any person . . . . Id. at § 169-3. Bee Hill Road has been classified as a scenic road. Id. at 169-1.B. The Applicants initially filed an application seeking permission to cut a tree near the initial proposed entrance for Foxwood Lane under this provision. However, according to trial testimony, as the proposal currently stands (with the modified entrance to Foxwood Lane), no trees will be cut within the town right-of-way and, therefore, the proposed Foxwood Lane subdivision does not fall within the jurisdiction of these rules and regulations. Trial Transcript, Day Three at 141-47. The applicants thus withdrew their application from consideration. Such testimony was uncontroverted and credible. In addition, the plaintiffs post-trial and reply briefs do not address this issue and I therefore presume that they have waived this argument. The plaintiffs claims regarding the Public Shade Tree Law and Scenic Rules and Regulations are thus DISMISSED, in their entirety.
Recommendations of Town Officials and Independent Engineers
The plaintiffs argue that the Board acted improperly by not taking into account the recommendations of officials and engineers that reviewed the plan. First, they contend that not all of the Fire Chiefs concerns were addressed. Specifically, they contend that the Fire Chief required the Applicants to submit a maintenance agreement for the fire suppression system and to submit the results of annual system tests to the Fire Department. A closer review of the Fire Chiefs letter, however, shows that his only remaining concern was the Applicants request that Foxwood Lane not be paved, along with a notation of the importance of long-term maintenance issues. Trial Ex. 13. The Board agreed with the Fire Chief and denied the Applicants request to waive the paving requirement. In addition, the Decision requires (as was recommended by the Fire Chief) the Applicants to submit a fire suppression system maintenance agreement to the Department of Inspection Services for review. Decision at 3. The fact that the Decision does not incorporate the Fire Chiefs notation regarding National Fire Protection Association requirements is not a material omission. If annual tests are required, the Applicants (and the development association) must comply with them regardless of whether they are incorporated in the Decision or not. [Note 54] It thus is not a reason to overturn the Boards Decision.
Although the plaintiffs initially argued that the Board erred by allegedly ignoring the advice of its engineering expert (Clough Harbor and Associates (CHA)) and Mr. Loring regarding the adequacy and safety of Bee Hill Road, this issue was not directly addressed in the plaintiffs pre-trial and post-trial briefs. [Note 55] I will briefly address it nonetheless. First, as the Applicants argue, the Board is not required to adopt the recommendations of experts involved in the process. Were this the case, the Boards statutorily delegated authority would be nullified. [Note 56] As cases note, it is the board . . . to whom the statute delegates discretion when evaluating plans under the Subdivision Control Law. Arrigo, 12 Mass. App. Ct. at 809. If courts cannot invade such discretion, certainly advisory experts cannot. Second, there was significant testimony at trial to suggest that the Board was well aware of the experts concerns, but came to its own conclusion regarding the safety of Bee Hill Road from Foxwood Lane to Taconic Trail. As discussed above, the Boards conclusion was more than adequately supported by evidence at trial and must be sustained despite reasonable minds differing. Id. The Board thus did not err in failing to fully adopt the recommendations of CHA or Mr. Loring. The plaintiffs claims on this issue are thus DISMISSED, in their entirety.
Reservation of Issues for Later Determination
The plaintiffs contend that the Decision should be annulled because it improperly reserves issues to be determined at a later date. Specifically, they argue that the Board delegated the approval of the maintenance agreement for the fire suppression tank, the review and approval of the Homeowners Association Covenants, and the maintenance agreement for the detention basins. [Note 57] [A] permit granting authority in a zoning case (e.g., a board of appeals) may not delegate to another board, or reserve to itself for future decision, the determination of an issue of substance, i.e., one central to the matter before the permit granting authority. Miles v. Planning Bd. of Millbury, 29 Mass. App. Ct. 951 , 952 (1990) (quoting Tebo v. Bd. of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 624 (1986)). However, the Board may reserve issues for later if the developer is required to measure up to a cognizable and reasonably definite standard which the planning board has adopted; there has been no postponement of the adoption of a standard or criterion. Id. (citation omitted).
Here, the Board provided significant direction for the pertinent provisions of the Home Owners Association Covenants and the maintenance plan for the detention basins. Furthermore, since all of these agreements are relatively minor issues and not central to the Boards Decision, I find that the Board was reasonable in conditioning approval at a later date. Mass. Broken Stone Co., 45 Mass. App. Ct. at 746-47. The plaintiffs claims on these issues are thus DISMISSED, in their entirety.
For the foregoing reasons, I find and rule that the plaintiffs did not sustain their burden in showing that the Board acted improperly when approving the Foxwood Lane Subdivision definitive plans, with the exception of the issues related to implied waivers. The Boards decisions in both cases are therefore AFFIRMED, in part. Specifically, I find and rule that the portion of Bee Hill Road between Foxwood Lane and Taconic Trail provides adequate access to the proposed subdivision and that the Board was reasonable in waiving certain requirements to the extent that this section of Bee Hill Road does not comply with them.
I also find and rule that the plaintiffs other criticisms (allegedly failing to address reviewers concerns, improperly reserving issues for later determination, failing to ensure conditions will be performed, failing to require additional tests, failing to evaluate the project under the Public Shade Tree Law and Scenic Roadway Regulations, and failing to require an independent engineer to supervise and inspect construction) are not supported by the evidence and are often not required by relevant town regulations. Accordingly, I AFFIRM the Boards Decision with respect to these issues and DISMISS the plaintiffs claims on these issues, in their entirety.
I also find and rule that the Applicants submitted an environmental analysis and therefore the plaintiffs claims regarding Rules and Regulations § 170-3.5.D are DISMISSED, in their entirety. The Applicants also met the requirements of Rules and Regulations §§ 170-3.3.C(8), 170-3.5.A(1)(f), and 170-4.3.A(3)(a) and Zoning Code § 70-5.3.B. The plaintiffs claims regarding these issues are thus DISMISSED, in their entirety.
As set forth in this Decision, however, the Applicants did not meet the literal requirements of certain rules and regulations and the Board failed to explicitly waive compliance with such sections. Accordingly, these cases are REMANDED to the Board for further findings consistent with this Decision (and, if necessary and deemed appropriate by the Board, explicit waivers) for the following issues: (1) the adequacy of Bee Hill Road to provide access between Foxwood Lane and Cold Spring Road, (2) Rules and Regulations § 170-4.3.d(1)s requirements regarding overspill height and the slope of basins, (3) § 170-4.3.D(2)(a)s requirements regarding the two-foot separation between the base of basins and the water table and the timeframe for collecting data, (4) § 170-4.3.D(2)(b)s requirement regarding the construction of basins below grade and on fill, and (5) the timing of improvements to Bee Hill Road.
Keith C. Long, Justice
Dated: 10 July 2009
[Note 1] Marjorie Wylde and Paul Maher live at 603 Bee Hill Road. Ronald and Judith Turbin live at 644 Bee Hill Road. David and Erin Keiser-Clark live at 839 Cold Spring Road. Henry Bratcher, Jr. (as trustee of the Cold Spring South Nominee Trust) owns the property at 734 Cold Spring Road. James MacGregor Burns lives at 604 Bee Hill Road. Nicholas and Joan Wright live at 80 Old Farm Way. Patricia Patterson and Alan Evenson live at 261 Bee Hill Road. With the exception of Alan Evenson, the plaintiffs are the same in both cases. Mr. Evenson is a plaintiff only in Misc. Case No. 370547.
[Note 2] The view was held prior to the hearing on the defendants motion for summary judgment in Misc. Case No. 324035.
[Note 3] Contrary to the plaintiffs arguments in their post-trial briefs, it is not the defendants burden to show that the Boards Decision was proper. Bd. of Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548 (1975).
[Note 4] The court notes that, despite extensive argument at trial and in their post-trial briefs that certain regulations were (or were not) implicitly waived by the Board, the parties entirely failed to bring this provision to the courts attention. Timely notice of this provision would have resulted in an expeditious remand to the Board and ultimately, perhaps, a considerably shorter trial.
[Note 5] Ms. Burns is the owner of Lot 8b and an adjacent parcel.
[Note 6] The actual application is not part of the record. It was identified as Trial Exhibit 55 for identification purposes only. The plaintiffs objected to its admission and it was not admitted into evidence.
[Note 7] Lot 9 also is restricted to future conveyance according to the plans. Trial Ex. 8(1), Overall Site Plan (Dec. 16, 2005); Trial Ex. 8(13), Building Envelope Plan (Jan. 6, 2006).
[Note 8] So far as the court can ascertain from the plaintiffs submissions and evidence submitted at trial, the plaintiffs are not contesting this finding. Accordingly, I do not address this issue and this portion of the Boards Decision shall remain undisturbed.
[Note 9] See n.8, supra.
[Note 10] See n.8, supra.
[Note 11] See n.8, supra.
[Note 12] See n.8, supra.
[Note 13] Although the plaintiffs do make arguments that the amount of tree clearing, lawn and impervious areas are inappropriate, they do not contend that the Applicants have violated § 170-4.5.D(1-7). Accordingly, I do not address this issue.
[Note 14] On July 16, 2007, a hearing was held on defendants Charles Foxs and Joan Burns motion for summary judgment in that case. That motion was denied since I found that the plaintiffs submitted sufficient evidence showing that they had standing and because there were material issues of fact in dispute. The Applicants arguments at trial regarding standing for both cases are essentially the same, so my ruling remains. At least one of the plaintiffs has standing to raise each of the issues addressed herein.
[Note 15] In its complaint, the plaintiffs contend that [t]here is no evidence in the record that the Application for Modification was filed with the Board of Health and/or with the Fire Department. Complaint in Misc. Case No. 370547 at 3, ¶ 21 (Feb. 11, 2008). This issue was not addressed at trial or in the plaintiffs post-trial brief. Accordingly, I do not address this issue.
[Note 16] Although the parties agreed to the deposition transcripts being admitted into evidence, the plaintiffs objected to the deposition exhibits being admitted. In the deposition (and the plaintiffs post-trial brief), plaintiffs attorney extensively quoted from the deposition exhibits (the deponents letters to the Board regarding Bee Hill Road). Since the exhibits were not admitted into evidence, I disregarded such quotations and only relied upon the deponents independent testimony. Although neither transcript is signed by the deponent, the parties agreed to their admission and, consistent with Mass. R. Civ. P. 30(e), I take this as their waiver of the signing requirement and treat the depositions as being signed.
[Note 17] The plaintiffs did not address this precise issue in either their pre-trial or post-trial memoranda. I therefore find that the plaintiffs have waived this issue. They did, however, argue that test pits were needed at the detention basins. This issue is discussed in detail below. As noted below, the Applicants submitted sufficient soil information. See Analysis section, infra.
[Note 18] Although I cannot (and do not) take it as evidence of the fact, the Boards Decision itself also states that an environmental analysis was submitted.
[Note 19] The neighbors also argued that construction of the subdivision will worsen the condition of Bee Hill Road. This argument is without merit due to the conditions imposed by the Board. As noted above, the Decision requires the Applicants, at their own expense, to maintain Bee Hill Road in a passable condition during construction, to promptly repair any and all construction damage, to post assurances to ensure this condition is complied with, and to provide contact information for residents to use when they have concerns regarding the condition. This court can presume that the Applicants will comply with the orders of the Board and therefore, any degradation of the road caused by construction activities will be repaired immediately.
[Note 20] Joseph Romano testified that Bee Hill Road has slopes in the range of ten to fifteen percent. Trial Ex. 32 at 23. Based upon testimony, it appears that many of the parties experts refer to the hillside requirements (e.g., the twenty-foot pavement width requirement).
[Note 21] The seventy-two-foot measurement is an outlier, corresponding to the width of the end of Bee Hill Road at its intersection with Taconic Trail (Route 2). Trial Ex. 44.
[Note 22] See n.21, supra.
[Note 23] See n.21, supra.
[Note 24] See n.4, supra.
[Note 25] Very little evidence was submitted regarding the other requirements in Article IV (e.g., minimum center-line radius, pavement edge radius) and therefore it is unclear whether Bee Hill Road met the other requirements or not. However, as discussed below, Bee Hill Road does meet sight distance requirements for the minimum design speed of twenty mph. In any event, the plaintiffs largely focused their criticisms on width and paving requirements, which were explicitly waived. As noted above, it is the plaintiffs burden to show that the Boards approval (including its explicit waiver of Article IV requirements) was not appropriate. I therefore assume, without deciding, that the remaining requirements were met.
[Note 26] Some neighbors testified about a couple of accidents. Police records regarding accidents on Bee Hill Road were not admitted into evidence. Trial Ex. 68 (for identification purposes only).
[Note 27] Mr. Kaiser did acknowledge, however, that he did not have an opinion as to whether Bee Hill Road provides adequate access. Trial Transcript, Day Three at 205.
[Note 28] The plaintiffs argue that since the town amended the definition of a major development (which defines a Major Residential Development as one that increase[s] the number of buildable lots (unless restricted from residential use) by more than seven, regardless of the timeframe), Trial Ex. 58, the development now qualifies as a Major Residential Development and the Applicants must now meet the requirements of § 70-5.2.A(2). This argument ignores the fact that the subdivision was initially approved under the old definition and thus the Applicants secured a zoning freeze. G.L. c. 40A, § 6; Patelle v. Planning Bd. of Woburn, 20 Mass. App. Ct. 279 , 284 (1985). The petition for modification (filed after the amendment was enacted) only sought to change the location of the entrance to Foxwood Lane and added underdrains to the detention basins. Thus, the new definition would not apply to the subdivision.
[Note 29] No evidence was submitted regarding the capacity ratio. Since it is the plaintiffs burden to show the plan should have been disapproved, I presume (without deciding) that this requirement also was met.
[Note 30] The plaintiffs appear to contest the classification of Bee Hill Road as a local road. AASHTO guidelines state that [a] local road is a road whose primary function is to provide access to residences, farms, businesses, or other abutting property, rather than to serve through traffic. Although some through traffic may occasionally use a local road, through traffic service is not its primary purpose. Trial Ex. 41. Although there was anecdotal testimony that some drivers use Bee Hill Road as a short cut to New York state, I find that this testimony does not suggest that through traffic service is the primary purpose of the road. This conclusion is supported by the fact that Bee Hill Road currently experiences only 129 daily trips on average and, after the development is constructed, will have 219 daily trips. Since testimony indicated that, in general, a home generates approximately ten vehicle trips per day, Trial Transcript, Day One at 170 (David Loring), the numbers for Bee Hill Road are consistent with the conclusion that its traffic is largely local in nature. Indeed, the plaintiffs own trial expert, Mr. Loring, agreed that the number of vehicle trips for Bee Hill Road is significantly less than the AASHTO definition of a very low-volume road. Id.
[Note 31] The plaintiffs also appear to argue that Bee Hill Road also should meet MassHighway Standards. There is no provision in the Zoning Code or the Rules and Regulations that require this; therefore, I will not address their arguments on it. See Fairbairn, 5 Mass. App. Ct. at 177 (even if the boards fears were directed to matters of legitimate public concern, this court must find [a] rule or regulation of the board which justified its refusal to approve the plan).
[Note 32] Higher risk locations are locations near intersections, narrow bridges, or railroad-highway grade crossings, or in advance of sharp curves or steep downgrades. Trial Ex. 41 at 39. Here, the stopping sight distance is for a location at an intersection and Bee Hill Road does have some steep and curvy sections.
[Note 33] Since the ninetieth percentile speed is 30 mph (corresponding to the design speed), 165 feet is the relevant distance. However, some of the trial exhibits discuss a design speed of 40 mph (a more conservative figure); therefore, I have included this figure as well.
[Note 34] The plaintiffs appear to contest the accuracy of this calculation. According to testimony, the 30 mph figure was calculated on two separate occasions, one using a stop watch and one using a radar gun. For arguments sake (I do not have evidence before me to decide the issue), using a stop watch may not, as the plaintiffs argue, be the best way to calculate average traffic speeds. However, in this case, the results of such an experiment were corroborated using a radar gun (which the plaintiffs advocate using). Furthermore, the plaintiffs own expert, David Loring, stated that he did not have any reason to refute such findings. Trial Transcript, Day One at 174. Since there is no evidence suggesting a contrary figure, I find that it is credible. Finally, it should be noted that this speed is a conservative estimate since most engineers will calculate stopping sight distances for the observed speed at the eighty-fifth percentile (not the ninetieth), which would presumably be less than 30 mph. Trial Testimony, Day Four at 248.
[Note 35] Presumably, the westbound traffic figures were not provided since the applicants (and the Board) only considered access to be to/from Taconic Trail.
[Note 36] The stopping sight distances for the observed speed of 30 mph were not provided. It appears that the Applicants provided the (stricter) 40 mph measurements at the request of certain comments made to the Board.
[Note 37] Since Mr. Dietrich testified that this was the measured distance, I assume that this measurement did not take the improvements to Bee Hill Road into consideration (as Mr. LaBatt did in his recalculation described in Trial Ex. 11).
[Note 38] Based upon this statement, I presume that Mr. Dietrichs measurements were for the 30 mph design speed, rather than Mr. LaBatts 40 mph speed. Regardless, all calculations meet AASHTO standards.
[Note 39] I note again that the road does meet the required AASHTO guidelines.
[Note 40] This concern is supported by testimony at trial. David Loring agreed that, in general and all other things being equal, there are fewer accidents on narrow, unpaved roads than on paved, wider roads. Trial Transcript, Day One at 178.
[Note 41] To be clear, I agree with the Applicants that Rules and Regulations § 170-2.3 does not require adequate access to two numbered state highways. However, the evidence suggests that the entire length of Bee Hill Road will serve as access and § 170-2.3 states that roads provide adequate access when they continuously meet the standards of Article IV, except for right-of-way width. Rules and Regulations § 170-2.3.B(2) (emphasis added). Certainly, the Board may waive such requirements, particularly with the flexibility provided for in that section (using the term normally). Here, however, the Board explicitly noted that it only considered access to Taconic Trail.
[Note 42] The Board found that Foxwood Lane subdivision is a dispersed hillside subdivision type. Decision at 2.
[Note 43] David Keiser-Clarks testimony that there is flooding on Route 7 near the Jaes Inn approximately once a year does not contradict these conclusions. It was unclear whether such flooding was due to runoff from the proposed Foxwood Lane subdivision and, even if it was, there was no specific (and certainly no persuasive) testimony to indicate that such sporadic flooding would worsen after the subdivision is developed. Although Mr. Houston speculated that if the detention basins completely failed, the Keiser-Clarks would experience flooding, there also was testimony that contradicted such theories. Specifically, there was testimony that there almost no chance that the basins would fail and, if they did, the water would flow towards the ravine and away from the Keiser-Clarks. See, e.g., Trial Transcript, Day Six at 137-43. I agree with this testimony.
[Note 44] Related, the plaintiffs argue that the failure of the Applicants to include topographical information in a small portion of the plans (near the northeast corner of the property) violates Rules and Regulations § 170-3.3.C(8). Mr. LaBatt testified that the topographic lines were omitted due to that area having a dense canopy of trees that prevents the ground contours from being viewed in aerial photography. Trial Transcript, Day Four at 107-08. The plaintiffs claim that without such information, the Board and this court cannot conclude that properties in the area will not be impacted by the development. The plaintiffs concerns, however, are unwarranted based upon the credible testimony outlined above many testified as to the general topography in that area and the fact that any discharges of water from the detention basins will flow towards the ravine and not impact the neighbors (particularly the Keiser-Clarks). In addition, § 170-3.3.C(8) is a requirement for preliminary plans. There is no corresponding requirement for definitive plans. See § 170-3.5.B. Thus, the Board could not have disapproved the plan based upon this lack of information. Moreover, even if it applied, I find that the plans meet the requirements of § 170-3.3.C(8) since it calls for topographic information in a general manner and I thus DISMISS the plaintiffs claims regarding this issue, in their entirety.
[Note 45] The Stormwater Management Policy states that Stormwater Management Standards are intended to be applied during routine project review by issuing authorities under the Wetlands Protection Act. Trial Ex. 64 at 1. In the absence of a NPDES permit entitled to a presumption, local conservation commissions or the Department should comply with 310 CMR 10.05(6) which instructs issuing authorities to impose conditions on the quality and quantity of discharges from either closed or open channel point sources to protect the interests of the Act provided the point source is within a resource area or the buffer zone. Id. at 2 (emphasis in original).
[Note 46] The plaintiffs appear to argue that since this data was collected for the purposes of assessing soils for septic system purposes, it cannot be used for assessing detention basins. This argument is without merit. The data indicates the point at which the soil mottles, which indicates the maximum high water table. The purpose for collecting the data does not change the data itself.
[Note 47] Although Mr. Houston contends that interpolating the data is not appropriate in this case, he did note that he has interpolated average water levels in the past and that doing so was sufficient. Trial Transcript, Day Five at 137-38.
[Note 48] There also was testimony to suggest that the Board has accepted data in the past that was not collected between February 15th and May 15th and the Applicants argue that there has thus been a de facto amendment to the Rules and Regulations. Due to the remand of this issue, I do not reach it in this Decision.
[Note 49] As Mr. Bernardin testified, due to the slope, one side of the base will be cut into the slope and the other side of the base may need to be constructed on top of fill. Trial Transcript, Day Six at 111.
[Note 50] Testimony revealed that the Applicants installed an overflow weir based upon Mr. Houstons comments. Trial Transcript, Day Two at 96.
[Note 51] As part of its findings, the Board shall determine whether all of the basins must meet the requirements of § 170-4.3.d(1) (as the plaintiffs argue) or just basin 2C (as the Applicants argue).
[Note 52] This argument is slightly different than the previous argument regarding § 170-3.5.A(1)(f) and the one-hundred-year storm effects. See Analysis, supra.
[Note 53] In particular, they contend that the view easement depicted on Trial Exhibit 9 (the owner of Lot 8b is permitted to cut trees in a certain area) will result in significant loss of trees and other vegetation. The Boards Decision was clear, however, that tree clearing is limited. Decision at 5, Condition 8. This condition controls over any private easement agreement.
[Note 54] I also note that the plaintiffs have not brought to the courts attention any Rules and Regulations or Zoning Bylaw provisions that require such testing.
[Note 55] The plaintiffs did, however, cite to CHA testimony to support their arguments regarding the adequacy of Bee Hill Road.
[Note 56] Indeed, Mr. Romano (an engineer at CHA) testified that he would only be satisfied with Bee Hill Road as access if it could be built to the town road standard across its length. Trial Ex. 32 at 41. This would suggest that CHA would never support the Boards decision to waive requirements in the Rules and Regulations, a conclusion contrary to the focus of the subdivision control process. Meyer v. Planning Bd. of Weston, 29 Mass. App. Ct. 167 , 170-71 (1990) (Subdivision control has as its focus what the landowner shall do rather than not do. The subdivision control process contemplates a dialogue between board and developer and exhortative give-and-take, i.e., a working out of difficulties and solutions less rigid than the zoning process. Hard and fast rules need not apply to the process. (citations omitted)).
[Note 57] The plaintiffs also argue that the Board erred in approving the definitive plan without properly considering the maintenance of the detention basins. Specifically, they contend that the slopes surrounding the basins will hinder access and the basins are not visible to residents in order to monitor them. I disagree that these suffice as reasons to overturn the Boards Decision. First, the Board did in fact consider maintenance. As noted above, Conditions 9 and 10 require continual maintenance of the basins and require the Home Owners Association Declaration to require maintenance. Should the homeowners fail to maintain the basins, the town has reserved the right to do so. Second, there is nothing in the Rules and Regulations that limits the slopes for access, a point which Mr. Houston conceded. Trial Transcript, Day Two at 243-44. Mr. LaBatt further testified that, despite the steep slopes, the basins could be maintained by hand or could be accessed with a tracked vehicle. Trial Transcript, Day Four at 63-67. Even Mr. Houston conceded that maintenance could be performed. Trial Transcript, Day Two at 246-47 (along the drainage easement). This evidence shows that maintenance was considered by the Board and that the plaintiffs concerns were sufficiently addressed.