BELLINGHAM RESIDENTIAL #2 REALTY, LLC v. ROLAND R. LAPRADE, BRIAN J. SUTHERLAND, EDWARD W. GUZOWSKI, GLENN C. WOJCIK, THOMAS J. GUERIN, DAVID H. BROWN, and KATE BUYUK, as they are members of the TOWN OF BELLINGHAM PLANNING BOARD and the TOWN OF BELLINGHAM

Introduction

This case is plaintiff Bellingham Residential #2 Realty, LLC’s appeal from two decisions of the defendant Town of Bellingham Planning Board (the “Board”). The plaintiff first appeals, pursuant to G.L. c. 41, § 81BB, the Board’s decision disapproving the plaintiff’s Definitive Subdivision Plan for a twenty-four-lot subdivision in Bellingham. [Note 1] It also appeals, pursuant to G.L. c. 40A, § 17, the Board’s decision denying the plaintiff’s application for a Major Residential Development special permit. [Note 2] Finally, the plaintiff seeks a declaratory judgment (pursuant to G.L. c. 231A, §1, G.L. c. 240, § 14A, and G.L. c. 185, § 1(j1/2)) that the Town of Bellingham Code of By-Laws Division II Zoning (the “Bylaw”) Article IV, § 4300 is invalid.

The plaintiff has filed a motion for partial summary judgment. [Note 3] For the reasons set forth below, I ALLOW the plaintiff’s motion in part and DENY the plaintiff’s motion in part. Specifically, I find and rule that Bylaw Article IV, § 4300 is invalid and, therefore, the Board’s decision denying the plaintiff’s application for a Major Residential Development special permit is hereby ANNULLED. I also find and rule that the Board’s decision disapproving the plaintiff’s Definitive Subdivision Plan was proper, within its authority, and is thus upheld. [Note 4]

Facts

Summary judgment is appropriately entered when, as here, “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The following facts are undisputed. [Note 5]

The plaintiff owns 164 acres of vacant land, bounded by South Main Street, Center Street, Cross Street and Silver Lake Road in Bellingham. It proposes to develop approximately twenty-five acres of the property into a twenty-four-lot subdivision; it currently does not plan to develop the remaining portion of the property. However, the plans submitted by the plaintiff identify the remaining portion of the property as the twenty-fifth lot. [Note 6] The proposed subdivision contains a new, sixty-foot-wide road running between South Main Street and Cross Street for access and frontage requirements. The proposed twenty-four lots are completely located within Bellingham’s suburban zoning district. The remaining property, lot twenty-five, is located in suburban, residential and agricultural zoning districts. In all of these districts, single-family dwellings are allowed as of right. Bylaw Article II, § 2400.

On January 4, 2006, the plaintiff submitted a Definitive Subdivision Plan and Application to the Board and also filed an application for a Major Residential Development special permit. [Note 7] At its March 23, 2006 meeting, the Board disapproved the Definitive Subdivision Plan and denied the plaintiff’s application for a special permit. The Board filed written decisions for both applications on April 14, 2006. [Note 8]

The Board unanimously voted to disapprove the Subdivision Plan for the following reasons:

3291.B. It cannot be determined that the 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. The hazards of the project as a whole cannot be determined because the project as submitted is a segmented portion of the whole parcel. Only approximately 25± acres of the entire 164.1 acres was shown as developed, yet roadway access to the remainder of the undeveloped parcel was designed. No plan or phasing for the remainder of the parcel was given. The environmental impacts for the entire parcel cannot be . . . evaluated as no environmental analysis for the entire 164.1 [acre] parcel was submitted. In addition, the application does not comply with Section 324 of the Subdivision Rules and Regulations, which requires an environmental analysis for any subdivision of more than 20 dwelling units. The traffic hazard cannot be determined because the traffic study submitted was neither for this project, nor for the entire 164.1 acre parcel; it only includes the 24 lots as part of the baseline analysis, not as a separate impact on the Town. Since the parcel has the potential to be developed into more than 24 lots, traffic impacts cannot be determined.

3291.D. It could not be determined, based upon the environmental analysis, 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. No environmental analysis for either the proposed 24-lots or, more importantly, the entire 164.1 [acre] parcel as a whole was submitted as required in Section 324 of the Subdivision Rules and Regulations. Although both an Environmental Notification Form (ENF) and Notice of Project Change (NPC) were submitted to the Massachusetts Environmental Protection Agency (MEPA), the applications were withdrawn at the request of MEPA.

3291.G. The proposed project is not consistent with the purposes of the Subdivision Control Law. The project is segmented without providing any analysis for the parcel as a whole in order to allow the Planning Board to determine the impacts to the Town. Only approximately 25 acres of the 164.1 acre parcel was shown as developed, yet the subdivision plan shows two roadway access points to the remainder of the parcel. Due to this segmentation, the Planning Board cannot determine that the safety, convenience and welfare of the residents of the Town of Bellingham will be protected; that the proposed subdivision will be safe and convenient for travel; that congestion on the adjacent public roadways will be lessened; that the danger to life and limb in the operation of motor vehicles will be lessened; and that there is adequate provision for water, sewerage, drainage, underground utilities, fire, police and other municipal services (MGL. Ch. 41, Section 81). In addition the submitted plans do not comply with applicable zoning by-laws (see Major Residential Special Permit Decision).

Certificate of Disapproval of a Definitive Subdivision Plan Shores of Silver Lake III at 1-2 (April 13, 2006, filed with the clerk April 14, 2006) (hereinafter, the “Subdivision Decision”).

The Board also unanimously voted to deny the special permit application for the following reasons: 4371(a). Section 1100 Purpose.

The proposed plan does not lessen congestion in the streets; prevent overcrowding of land; avoid undue concentration of population; encourage housing for persons of all income levels; facilitate the adequate provision of transportation, water supply, drainage, schools, parks, open space, and other public requirements; to conserve the value of land and buildings, including the conservation of natural resources and the prevention of blight and pollution of the environment; to encourage the most appropriate use of land throughout the Town; and to preserve and increase amenities, pursuant to Chapters 40A, 40B, and 41 of the Massachusetts General Laws as amended, and Article 89 of the Amendments to the Constitution.

The application was for market rate housing and did not encourage housing for people of all income levels; the application did not provide public value through parks and provided approximately only 1.5 acre of open space on a 164.1 acre parcel; the application did not attempt to conserve land or natural resources as the alternate plan had the same layout as the conventional plan.

4371(b). Section 1530 Special Permit Criteria.

The proposed project does not meet the following criteria:

1530(a) social, economic or community needs which are served by the proposal; The application did not provide housing for numerous income levels or adequate open space for the community[.]

1530(b) traffic flow and safety; The application did not address traffic and safety issues as the traffic study submitted included traffic counts as part of a baseline for a different project. In addition, the safety of exiting/entering the project at the chosen locations was not addressed.

1530(d) neighborhood character and social structures; The proposed market rate housing was different than the smaller, older homes in the existing neighborhood.

1530(e) qualities of the natural environment; The application could not be evaluated for impacts to the natural environment as the application only included a small portion of the whole parcel, rather than the entire parcel.

4371(c). Section 3420 Major Proposal Criteria.

The proposed project does not meet the following criteria:

3421. Location (c). It cannot be determined that the site would be able to accommodate the proposal without substantial environmental damage due to wetland loss, habitat disturbance or damage to valuable trees or other natural assets. Impacts could not be determined because the application did not address the parcel as a whole but only a small section of the parcel and no phasing plan for the entire parcel was submitted.

3422. Activity Type and Mix (b). The proposal does not add to the range of housing choices available locally. Only market rate housing was proposed.

3423. Visual Consequences (a). The project does not include scenic views from public ways. The alternative plan did not cluster homes together as is typical, it used the same straight layout as the conventional subdivision, to provide any scenic views from the public way.

3424. Access (a) and (b). It cannot be determined that the project does not increase existing traffic by no more than 10% at any point for residential developments and does not appear to provide pedestrian and vehicular movement to, from and within the site that is safe and convenient and arranged so as not to disturb abutting properties. A traffic study for the build-out of the entire parcel was not submitted and only a traffic study for the proposed 24 lots was included as part of the baseline for another project.

4371(d). Section 4310 Major Residential Development Intent.

4311. The proposed project does not provide for the:

• permanent preservation of open space for conservation or recreational use, especially in large contiguous areas within the site or linked to off-site protected areas; The entire parcel is 164.1 acres, but only 1.5± acres was provided for open space and this open space was not contiguous with any other open space.
• protection of water bodies, streams, wetlands, wildlife habitats, and other natural resources; This could not be determined as the application showed development [for] only a small portion of the site without accounting for development of the remaining site.
• protection of the character of the community through preserving open space within view from public roads, preservation of stone walls and other historic landscape features, preservation of scenic vistas, and siting of dwellings at low-visibility locations; The entire parcel is 164.1 acres, but only 1.5± acres of open space was provided and this open space was located in the middle of the proposed roadway development, not within view of any public road.
• protection of street appearance and capacity by avoiding development close to or having egress directly onto existing streets. The roadway exited directly on South Main Street.

4313. The proposed project does not promote social and economic diversity. The application is for market rate housing only.

4314. The proposed project does not provide for privacy for residents of individual lots. The houses are situated next to each other in a straight row without any buffering between buildings.

4315. The proposed project does not appear to avoid unnecessary development costs. The alternate plan has the same roadway length as the conventional plan.

4372. Disapproval. Neither the proposed conventional subdivision plan nor the proposed alternative cluster subdivision plan are feasible or responsive designs, and additionally, the alternative cluster plan does not conform to the requirements of the Zoning By-law in that it provides more dwelling units than allowable under the conventional plan (Section 4351). The conventional plan provides 24 houses, but the alternative plan has 30 houses – 6 more than are allowed. In addition, both the conventional plan and the alternative plan appear to segment the project by not including a plan (phased or otherwise) for the entire 164.1 acre parcel. Both the conventional and alternative plans only show development for approximately 25± acres of the entire parcel, and neither provide any indication of what will occur on the remaining 139± acres.

Major Residential Development Special Permit Decision Shores of Silver Lake III at 1-4 (April 13, 2006, filed with the clerk April 14, 2006) (hereinafter, the “Special Permit Decision”).

Other pertinent facts are included in the analysis section below.

Analysis

Validity of the Major Residential Development Bylaw and the Board’s Denial of the Plaintiff’s Application for a Special Permit Pursuant to Such Bylaw Provision

Bylaw Article IV, § 4300 requires a special permit for any Major Residential Development. A Major Residential Development is defined as follows:

• Development of ten or more dwelling units on a single lot, or
• One or more divisions of land (whether or not a ‘subdivision’ requiring Planning Board approval) that would cumulatively result in an increase by ten or more lots (excluding any restricted from residential use) above the number existing twenty-four months earlier on a parcel or a set of contiguous parcels which were in common ownership as of October 10, 2001, except that if each resulting lot has both lot area and frontage at least 50% greater than that required under Section 2600 Intensity of Use Schedule the land division shall not be considered to be a Major Residential Development.

Bylaw Article V. The Bylaw further notes that

[t]he Design Concept Plan, Special Permit application, and if a non-conventional layout is proposed, a Conventional Layout Plan (to allow for final determination of the number of lots) shall be prepared and submitted to the Planning Board concurrent with a Definitive Plan for subdivision of land. The applicant may submit a combined plan and application that conforms to all requirements of Section 4333 and all Definitive Plan requirements of the Subdivision Regulations of the Bellingham Planning Board.

Bylaw Article IV, § 4373. The plaintiff argues that Bylaw Article IV, § 4300 “is invalid because, among other reasons, it is inconsistent with and contrary to the subdivision review process and rights provided for by the Subdivision Control Law, G.L. c. 41, §§ 81K-81GG, inconsistent with the Special Permit provisions of c. 40A, § 9, and otherwise unlawful.” Complaint at 4, ¶ 16 (May 3, 2006). I agree that the Bylaw is inconsistent with G.L. c. 41, § 81M.

The Appeals Court has recently decided this very issue in Wall Street Development Corporation v. Planning Board of Westwood, 72 Mass. App. Ct. 844 (2008). In that case, the town of Westwood had a nearly identical “Major Residential Development” bylaw provision, which required

a landowner seeking a subdivision into four or more house lots . . . to file a special permit application accompanied (in outline or in preliminary subdivision plan for) by two plans, one “conventional,” showing complete compliance with all board rules and regulations and with the known requirements of the board of health and the conservation commission, and the other an “alternative” plan differing “substantially” from the conventional plan in various ways suggested in the by-law.

Id. at 848. The Appeals Court stated,

In our view the by-law and the power it gives to the board to reject so called “conventional plans” (i.e., plans in total compliance with applicable laws and regulations) may be more easily seen as presenting a facial conflict with the subdivision control law, specifically with G.L. c. 41, § 81M, as amended by St. 1957, c. 265:

“It is the intent of the subdivision control law that any subdivision plan filed with the planning board shall receive the approval of such board if such plan conforms to the recommendation of the board of health and to the reasonable rules and regulations of the planning board pertaining to the subdivision of land. . . .”

See Pieper v. Planning Bd. of Southborough, 340 Mass. 157 , 163-64 (1959) (legislative history of subdivision control law “gives no indication that planning boards were to have freedom to disapprove plans which comply with applicable standards merely because the board feels general public considerations make such action desirable”); Beale v. Planning Bd. of Rockland, 423 Mass. at 695-97 (discussing generally authority of planning board to reject subdivision only for violations of board’s rules and regulations, zoning by-law, subdivision control law, or recommendations of the board of health).

Id. at 854. Accordingly, the Appeals Court affirmed the judgment of the Land Court, ruling that the bylaw was invalid and unenforceable. Id. at 855. [Note 9]

The same is true here. Bylaw Article IV, § 4300 subjects certain subdivisions to the additional requirement of obtaining a special permit. In considering the special permit application, the Board may consider numerous issues, including the following:

4311. Location of development on sites best suited for building, and protection of land suited for development, reflecting such considerations as:

• permanent preservation of open space for conservation or recreational use, especially in large contiguous areas within the site or linked to off-site protected areas;
• protection of water bodies, streams, wetlands, wildlife habitats, and other natural resources;
• protection of the character of the community through preserving open space within view from public roads, preservation of stone walls and other historic landscape features, preservation of scenic vistas, and siting of dwellings at low-visibility locations;
• protection of street appearance and capacity by avoiding development close to or having egress directly onto existing streets.

4312. Efficient patterns for construction and maintenance of public facilities and services such as streets and utilities.

4313. Promotion of social and economic diversity.

4314. Privacy for residents of individual lots.

4315. Avoidance of unnecessary development cost.

Some of these considerations (e.g., “[p]romotion of social and economic diversity” and “protection of the character of the community”) are beyond the Board’s authority as part of the subdivision review process. See, e.g., Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 84 (1976) (“general public considerations” are not permissible matters to consider). In any event, the broad discretion that the Bylaw gives the Board to approve or deny a special permit is inconsistent with the Subdivision Control Law. Wall St. Dev. Corp., 72 Mass. App. Ct. at 854-55; see also Prudential Ins. Co. of America v. Bd. of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281 (1986) (“a use allowed as of right cannot be made subject to the grant of a special permit inasmuch as the concepts of a use as of right and a use dependent on discretion are mutually exclusive”); Coolidge Construction Co., Inc. v. Planning Bd. of Andover, 8 LCR 268 , 279 (2000) (Green, J.) (bylaw requiring special permit for earth removal for subdivision development or construction “subjects the use of locus for a residential subdivision, permitted by right under the zoning by-law, to a discretionary special permit procedure, in violation of the uniformity requirement of G.L. c. 40A, s. 4.”). The long list of reasons cited by the Board (see the facts section above) for denying the special permit in this case exemplifies the broad discretion the Board purports to have in reviewing the Major Residential Development special permit application. Such discretion is not permissible when reviewing a proposed subdivision for a use that is allowed as of right.

The defendants’ contention that Bylaw Article IV, § 4300 is consistent with state laws and in accordance with Bellingham’s Home Rule power fails. Although the defendants are correct that “municipal action is presumed to be valid” and “the invalidation of a local regulation requires a ‘sharp conflict’ between it and the State legislation,” Connors v. City of Boston, 430 Mass. 31 , 35-36 (1999), the Appeals Court has directly decided that major residential development bylaws such as Bellingham’s conflict with state law. Wall St Dev. Corp., 72 Mass. App. Ct. at 855. Accordingly, Bylaw Article IV, § 4300 is invalid. Id.; see also Conroy v. Conservation Comm’n of Lexington, 73 Mass. App. Ct. 552 , 558 (2009) (“it is a fundamental principle of administrative law that even a properly promulgated regulation is not valid if it is inconsistent with the legislation it implements”). Since the Bylaw provision is invalid, the Board’s Special Permit Decision is hereby annulled.

The Board’s Subdivision Decision

At the March 23, 2006 meeting, the Board disapproved the plaintiff’s Definitive Subdivision Plan for a number of reasons, outlined above. [Note 10] In large part, the Board’s denial centers on the fact that the plaintiff purports to only be developing a portion of the larger, 164-acre property. The Board stated in the Subdivision Decision that it could not evaluate numerous issues such as environmental and traffic impacts because the plaintiff failed to submit plans for the entire property. “The question on appeal is whether the [Board’s] reasons . . . were within the scope of its authority under its rules and regulations.” Mass. Broken Stone Co. v. Planning Bd. of Weston, 45 Mass. App. Ct. 738 , 742 (1998). The plaintiff, however, “has the burden of proving that the planning board has exceeded its authority in disapproving the plan.” Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). “If the record discloses that any substantial reason given by the board for disapproval of the plan was proper,” the plaintiff cannot meet its burden and the Board’s Subdivision Decision must be upheld. Mac-Rich Realty Constr., Inc., 4 Mass. App. Ct. at 80-81.

The plaintiff has mischaracterized the proposed subdivision as a twenty-four-lot subdivision. As the plaintiff’s own plans depict, the property is actually divided into twenty-five lots. See, e.g., Definitive Subdivision Plan, Plan of Land, The Shores at Silver Lake III, sheets C1-C4 (Sept. 16, 2005). Although the plaintiff states that it is only subdividing a portion of the entire parcel, its plan identifies the remaining land as lot 25, containing 6,004,980.15 square feet. Id. Furthermore, the conclusion that the remaining portion of the property is a lot for purposes of the Subdivision Control Law is supported by G.L. c. 41, § 81L’s definition of a lot: “an area of land in one ownership, with definite boundaries, used, or available for use, as the site of one or more buildings.” (emphasis added). The Board was therefore well within its authority in seeking information for the entire 164-acre property when evaluating the Definitive Subdivision Plan for compliance with its Subdivision Rules and Regulations. [Note 11]

The plaintiff argues that it is not required to submit information regarding lot 25 since it “would require speculative evaluations of future potential subdivisions that the landowner does not currently propose and may never propose.” Memorandum in Support of Plaintiff’s Motion for Summary Judgment at 15. However, the Supreme Judicial Court has suggested otherwise in Loring Hills Developers Trust v. Planning Board of Salem, 374 Mass. 343 , 350-52 (1978), a case cited by the plaintiff itself. In that case, the Planning Board of Salem disapproved a definitive subdivision plan, in part, on the developer’s “failure to supply information called for by the planning board’s regulations promulgated under § 81Q.” Id. at 350. The proposed subdivision “showed eighty-one acres divided into eight lots, which could accommodate 2,532 dwelling units and about 6,000 people.” Id. As was the case here, the developer did not provide requested information such as dwelling unit location and impacts on municipal services, traffic, police and fire protection. Id. at 350-51. The court stated, we read the quoted portion of § 81Q to prohibit regulation of the subjects mentioned rather than to forbid inquiry about them. The regulations may require the developer to supply information reasonably necessary to enable the boards to perform their duties. . . In applying such requirements, we think the developer may be required to furnish information about the ‘prospective character’ of the subdivision, even though the information in a sense ‘relates’ to the ‘use of lots’ within the subdivision. So here, we think both boards could properly inquire into proposed grades and other information reasonably necessary to evaluate drainage. The fact that such information in a sense relates to the use of lots does not invalidate the regulations. . . . . We agree that it would often be premature and unreasonable to require the developer to settle on particular uses before his plan is approved. But if he wishes to retain the option to develop the locus in alternative ways, he may be required to disclose enough information about each alternative to enable the boards to perform their duties.”

Id. at 351 (internal citations omitted).

The same is true here. The plaintiff currently may not be seeking to further subdivide lot 25, but, as the plan indicates, it has kept that option open (unlike lots A and B, which have been identified as “not a buildable lot”). As a result, the Board may permissibly seek information regarding the entire 164 acres that is “reasonably necessary to enable the board[] to perform their duties” of evaluating the entire proposed subdivision pursuant to the Subdivision Control Law. [Note 12] Id.

In evaluating whether the Board’s disapproval was proper, this court is limited to reviewing the reasons cited by the Board. Fairbairn, 5 Mass. App. Ct. at 173. As stated above, so long as one of the reasons is proper, the Board’s Subdivision Decision must be upheld. Mac-Rich Realty Constr., Inc., 4 Mass. App. Ct. at 80-81. For the reasons discussed above, the Board’s last reason – failure to comply with the Bylaw (citing the Special Permit Decision) – is not a proper reason for disapproving a subdivision plan.

However, the Board listed at least one reason based upon its Subdivision Rules and Regulations, which is consistent with the Subdivision Control Law and case law. For example, within reason 3291.B, the Board specifically cited Section 324 of the Subdivision Rules and Regulations, which requires an environmental analysis for subdivisions with more than twenty units. Although the Supreme Judicial Court and the Appeals Court have not directly decided whether environmental regulations are proper under the Subdivision Control Law, see, e.g., Chira v. Planning Bd. of Tisbury, 3 Mass. App. Ct. 433 , 438 (1975), the environmental analysis requires information such as a traffic analysis and an analysis regarding the development’s impact on ground and surface water (including an analysis of drainage systems). [Note 13] The traffic analysis must include information regarding the “[a]bility of streets providing access to the subdivision to safely provide such access, including measurement of sight distances at each intersection with proposed streets, impact of development traffic on the traffic level of service, gap acceptance analysis, and analysis of hazards owing to limited sight distances, alignment or other characteristics of access roads.” Subdivision Rules and Regulations § 324(F). Certainly, such information is within the Board’s authority to require. See, e.g., North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432 , 438-42 (1981) (regarding adequate access); Loring Hills Developers Trust, 374 Mass. at 351-52 (regarding drainage); Vitale v. Planning Bd. of Newburyport, 10 Mass. App. Ct. 483 , 485 (1980) (same).

Here, the plaintiff failed to submit any information regarding lot twenty-five. [Note 14] As the Board stated, it was unable to analyze the entire proposed subdivision without such information. Accordingly, the Board’s disapproval of plaintiff’s Definitive Subdivision Plan was proper and is hereby upheld. Conclusion For the foregoing reasons, the plaintiff’s motion for summary judgment is ALLOWED in part and DENIED in part. Since Bylaw Article IV, § 4300 is invalid, the Special Permit Decision is hereby ANNULLED. However, the Board’s decision disapproving the plaintiff’s Definitive Subdivision Plan was proper and is hereby upheld. Judgment shall issue accordingly.

SO ORDERED.

By the court (Long, J.)

Attest:

Deborah J. Patterson, Recorder

Dated: 28 January 2009