RONALD DONOHUE and PAUL DONOHUE, doing business as Innitou Contracting vs. PAUL DOHERTY, JAMES FELD, MICHAEL MAHER, EDWARD PASQUARELLO, JAMES GARVEY, And CLAUDIA BOLGEN, as they are the PLANNING BOARD OF THE CITY OF WOBURN

By virtue of the instant action, initiated pursuant to G.L. c. 41, § 81BB, plaintiffs sought judicial review of a City of Woburn Planning Board (Board) decision denying approval of a definitive subdivision plan. The plaintiffs sought declaratory relief pursuant to G.L. c. 231A, § 1, as well. The primary issue centered upon the proposed construction of a T-shaped, or hammerhead shaped [Note 1] drive intended to accommodate a turn-around space. The parties agree that the parcel (Locus) to be served by this “access way” is exempt from the subdivision control law under G.L.c. 41, § 81FF. However, the proposed access way would be constructed so as to transect an undeveloped paper road, Leslie Ave., thereby providing direct access to Main Street, Woburn, which is also known as State Highway Route 38 (Route 38/ Main Street), a busy thoroughfare. [Note 2]

From the beginning, plaintiffs offered two arguments: first, that, by virtue of the § 81FF exemption, the subject parcel cannot be regulated by Woburn’s Planning Board at all with regard to access; and, second, in the alternative, should the Board retain jurisdiction over this development notwithstanding the exemption, the standard for compliance with Board regulations must be diminished from that applied to non-exempt parcels. Since the filing of the complaint, the plaintiffs have retreated from the first argument and focus squarely on the second, asking that this court delineate what this lesser standard of regulation might be, in a manner consistent with the subject parcel’s § 81FF exemption. Following a one day trial on December 4, 2007, [Note 3] at which a stenographer was sworn to take the testimony of Ronald Donahue, Daniel Donahue, William Carlson, Edmund Tarallo, Police chief Philip Mahoney, Fire Chief Paul Tortolano, and John Corey, eleven exhibits were admitted into evidence. These exhibits are incorporated by reference into this decision for purposes of appeal. On all testimony, [Note 4] exhibits and other evidence properly introduced at trial or otherwise before me and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, I find as follows:

(1) The plaintiffs, Ronald Donohoe and Paul Donohoe (Plaintiffs) reside in the City of Woburn. They are contractors who conduct a business under the name and style of Innitou Contracting. [Note 5]

(2) The defendants Paul Doherty, James Feld, Michael Maher, Edward Pasquarello, James Garvey, and Claudia Bolgen (Defendants) are named herein as members of the Planning Board of the City of Woburn (Board).

(3) The subject parcel (Locus) derives its frontage from Leslie Ave., an unconstructed paper street and private way. [Note 6] It has no frontage on Route 38. It is shown on a Plan recorded on May 18, 1916 with the Middlesex South District Registry of Deeds (Registry) in Plan Book 248, Page 5. [Note 7] The Locus is also shown on the municipal assessors Map 8 as Parcel 28. [Note 8]

(4) The plaintiffs wish to construct a two family dwelling on the Locus. To this end they have formulated a plan for improving an appurtenant portion of Leslie Avenue, thereby affording the Locus direct access to Route 38. [Note 9]

(5) As noted, while the Locus clearly fronts on Leslie Ave., the plaintiffs refer, assiduously so, [Note 10] to the proposed improvement over Leslie Ave., as an “access way” to the Locus, rather than a “driveway.” [Note 11] According to the uncontroverted testimony of the City Engineer, John Corey, a driveway accesses a property from its street frontage. In the case at hand, the proposed improvement to Leslie Ave. does not access the Locus from its “legal street frontage.” [Note 12] It is clear in any event, that the said improvement is to be constructed over a portion of Leslie Ave.

(6) There is no evidence to indicate that the designation “access way,” is the subject of any Planning Board Regulation. [Note 13]

(7) Route 38 is an undivided two-lane highway having limited sidewalks on its westerly side, and full sidewalks on its easterly side. [Note 14]

(8) As noted, the Locus itself has no frontage on Main Street, fronting solely on Leslie Ave. [Note 15] At its closest corner, the Locus is approximately 30 feet from Route 38, while its farthest corner is approximately 60 feet therefrom. [Note 16] As such, the area between the highway and the front property line consists entirely of the southerly triangular portion of Leslie Ave. [Note 17]

(9) Plaintiffs propose to improve that portion of Leslie Ave. in order to provide direct access from the Locus to the highway. [Note 18] Such improvements would include a “T” or hammerhead configuration. A narrow neck connecting with Main Street would open up to a turnaround area to the east, extending out into the Leslie Ave. right of way.

(10) The design was ostensibly intended to permit a person driving his or her automobile to “turn out…so that when you face out onto Main Street, you’re heading out with your car, not backing out.” [Note 19] Plaintiffs’ expert, a registered civil engineer, [Note 20] readily acknowledged that the “turnaround” was designed so that motor vehicles would not have to back out onto Main Street. “I don’t like backing out…not with a street this busy.” [Note 21]

(11) Moreover, the development plan includes the construction of a retaining wall at the edge of the turnaround area crossing the right of way, Leslie Ave. [Note 22] Consequently, only a modest portion of Leslie Ave. would be constructed for purposes of providing the requisite access.

(12) Seeking authorization to construct this improvement over Leslie Ave., the plaintiffs on February 17, 2000 submitted a plan (Plan) to the Woburn Planning Board. The Board considered the Plan at its meeting of June 12, 2001, issuing its written decision on June 15, 2001, in which it voted not to approve the Plan.

(13) The definitive subdivision plan filed with the Board provides as follows::

Definitive Subdivision Plan of Land, Woburn, Massachusetts’ prepared by: Daniel Donahue, P.E., and dated: October 15, 1999 and revised May 25, 2000. Said Definitive Plan, hereinafter referred to as the “Plan” was originally filed with the Planning Board on February 17, 2000 and consists of Sheets 1-3. the Plan shows… an unimproved lot, consisting of 9,471 square feet, and having frontage along Leslie Avenue (a paper street). Said lot is shown on the City of Woburn’s Assessors Map 8, as Parcel 28…. (emphasis added) (14) The City of Woburn adopted the Subdivision Control Law, G.L. c. 41 §§ 81K-GG, in 1953.

(15) The Locus consists of Lots numbered 16, 17, 35 and 36, as shown in Plan Book 248 on Plan 5, recorded with the Middlesex South Registry of Deeds on May 18, 1916. These lots are contiguous and have been held in separate ownership segregated from other contiguous lots on said plan, from on or before 1926.

(16) The plaintiffs therefore asserted an § 81FF exemption from the Subdivision Control Law while their application for Board approval was being processed.

(17) The Board acknowledges that, under its practices and procedures, it treats requests to improve paper streets as requests for approval of development pursuant to the Subdivision Control Law.

(18) At the May 22, 2001 meeting, the Board made a preliminary decision to deny approval to the plaintiffs, and, upon reconsidering this denial, the Board decided to obtain the city solicitor’s legal opinion. After reviewing same, the Board, at its meeting of June 12, 2001, voted to uphold the initial denial. The Board’s formal, written decision, filed at the office of the City Clerk cited non-compliance with the Board’s sight distance requirements together with the failure to comply with certain street design standards, as the primary bases for its denial of plaintiffs’ proposal.

(19) Relying in large measure upon Chapter VII, TABLE II- STREET DESIGN STANDARDS of the Planning Board’s 2000 Land Subdivision Rules and Regulations (Regulations), the Board concluded as follows:

The [M]inimum Vertical Alignment, i.e. clear sight distance at 4.5 ft. above pavement in linear feet, for a Collector Street, [Note 23] which Leslie Av[enue] entering onto Main St./Rte. 38 represents, is 350 feet. The Plan shows a maximum southerly sight distance on Main St., at said vertical alignment, of 80 linear feet. (emphasis added)

It recited further that:

The Plan also fails to conform to the following street design standards, per said …Subdivision Rules and Regulations:

a) Minimum Intersection Radius for a Collector Street intersection [is] 50 feet. The Plan shows intersection radii of 5 feet. (emphasis added)

b) Turnaround right-of-way diameter in feet of 106 ft. and turnaround pavement width (edge of curbing to edge of curbing) of 86 ft. The Plan shows a T-shaped turnaround, having a pavement width measuring approximately 22.5 ft. in width x 20.5 in length.

c) Both sides of roadway require 4 ft. in width cement concrete sidewalks, vertical granite curbing…and 3 ft. interior and 3 ft. exterior planting strips…. The Plan does not include the foregoing design standards, nor does the Plan include the drawn design detail, per Chapter VIII-CROSS SECTIONS for Short Cul-de-Sac as required by said regulations.

(20) Subsequent to the appeal to this court, the parties agreed that § 81FF does apply to the Locus. [Note 24] Consequently, by order dated August, 6, 2004, the matter was remanded to the Board for a determination consistent with the parties’ stipulation. [Note 25]

(21) I credit the uncontroverted testimony of Edmund P. Tarallo, the Woburn City Planner, as follows:'

Q [Upon remand), [d]id you…have discussions with the plaintiffs or any of their representatives about making changes to the plans ?

A Yes, I did.

Q And can you tell the court what those conversations were?

A [W]hen the plan was given to us on remand…[[I asked] the attorney representing them [plaintiffs],…whether or not there would be any modifications to the plan from the original submissions; and I was told “no.”

Again…after the hearing had begun…I again asked whether or not there would be changes to the plan, and again was told there would not be. [Note 26]

Q Is it normally the planning board’s role to redesign a plan that is proposed to it?

A No.

Q Then, if a plan is presented…that [the Board] finds objectionable, and the applicant states that no changes will be made, what does the…board do as a matter of course?

A In general…if there are no changes to be made, the board then makes its determination on the plans as submitted.

Q And that is what happened in…the 2004 remand hearing?

A Yes. [Note 27]

(22) Furthermore, the plaintiffs were asked to provide a list of waivers [Note 28] so as to provide the Board with a better understanding of the issues. In similar fashion, the plaintiffs refused that request, as well. “So basically, the board was left to deal with the plan as [originally] submitted.” [Note 29] That testimony of the City Planner gains support from plaintiffs’ own expert, Daniel T. Donahue, a licensed civil engineer, who testified on cross examination as follows:

Q Were you ever asked by your clients to redesign this plan for the second planning board hearing in 2004, to address the numerous issues raised in its decision?

A No, I was not.

Q Had you been so asked, would you have redesigned the plan to address those issues?

A If my client…asked me to; yes.

Q But they didn’t ask you to do that?

A They didn’t ask me.

(23) At a public hearing held on November, 9, 2004, the Board voted to deny approval of the proposed limited development over the paper way, Leslie Ave.

(24) As noted, the parties had agreed prior to remand, that the Locus was exempt from the Subdivision Control Law under G.L. c. 41, § 81FF. As a consequence, the Remand Decision reflects the Board’s attempt to modify its usual policies and procedures through the application of lesser standards pertaining to minor streets. In its earlier decision, the Board recognized Leslie Ave. as constituting a collector street, subject to more stringent regulatory standards. However, the Board concluded that the Plan failed to satisfy even these lesser standards, and so denied the application.

The Board’s Remand Decision was filed with the City Clerk on December 21, 2004. It provides in relevant part as follows:

After considering evidence presented at the public hearing including concerns from the Fire Chief, the Engineering Department, the planning director and abutters and after evaluating the “Plan” with regard to the Planning Board’s Land Subdivision Rules and Regulations for a minor street and allowing for the modification of the minor street layout to 40’ for Leslie Ave. with 26’ of pavement and the elimination of the 5’ grass strip on both sides that are required in the 50’ right of way layout for a minor street. The “Plan” still fails to meet the modified Rules and Regulations for a minor street including the lack of adequate pavement width, sidewalks, grass strips, curbing, turnaround, water main, sewer main, intersection radius, and sight distance. In addition, the “Plan” proposes construction of walls within the right of way limiting use of the street by other properties. (emphasis added)

(25) It is well to examine the Board’s decision in order to focus upon its component elements. Recognizing that Leslie Ave., for much of the way depicted on the plan, was 40 feet in width, the Board modified the usual 50 foot width requirement for a minor street, to 40 feet. [Note 30]

In its Remand Decision, the Board highlighted the bases for their denial. They specified that the Plan’s failure to meet the modified Regulations for a minor street, centered upon the lack of:

Adequate pavement width;

Sidewalks;

Grass strips;

Curbing;

Turnaround;

Water main;

Sewer main;

Intersection radius; and

Sight distance.

Each of these elements will be addressed, in turn, below.

(26) The “T” or hammerhead configured access way was intended by the plaintiffs to permit a “car” to enter the way and park in one of four designated spaces or stalls [Note 31] located on the grounds of the Locus itself. Rather than having to back out onto the highway, a driver could effect a turn within the access way, allowing her to face out to Main Street before proceeding. [Note 32] As noted, plaintiff’s own expert acknowledged that he configured the access way in this fashion inasmuch as he didn’t “like backing out…not with a street [Route 38] this busy.” [Note 33]

(27) As to the requirement for 4 feet concrete sidewalks on both sides of the roadway (Leslie Ave.), none were depicted on the Plan given the proposed hammerhead configuration. Under cross-examination, plaintiffs’ expert Daniel T. Donahue readily acknowledged that from an engineering standpoint he could have included a sidewalk on Leslie Ave. He did not do so however, as a sidewalk would have been wholly inconsistent with his intent and design. He was seeking to design no more than an access way. “I wasn’t looking to design a roadway; so I wasn’t looking to design a sidewalk.” [Note 34]

(28) In its Remand Decision, the Board referenced the absence of grass strips in the plaintiffs’ Plan. Such strips would typically be required on either side of a minor street. Thus, a 50 foot minor street would require a 5 foot grass strip, a 4 foot sidewalk, and a 3 foot grass strip on either side of the way, together with 26 feet of pavement. [Note 35]

(29) In its Remand Decision, the Board altered those requirements so as to take into account the 40 foot width of Leslie Ave. Specifically, the Board modified the minor street requirements themselves, in order to permit a 40 foot wide layout for Leslie Ave. [Note 36] The 10 foot reduction in its minor street requirements was accomplished through the elimination of the 5 foot grass strip on either side of the 26 foot pavement. [Note 37] In so doing, the Board sought to retain a 3 foot grass strip and 4 foot sidewalk on either side of the 26 foot pavement. [Note 38]

(30) At that, the width of the plaintiffs’ proposed access way¸ the pavement width, at the point of intersection with Route 38, was 20 feet only [Note 39] rather than the 26 feet of pavement otherwise be required by the Board. [Note 40] No reason was presented which would justify the plaintiffs’ failure to propose construction of a 26 foot way even in that relatively modest portion of Leslie Ave. intersecting Main Street.

(31) As to the requirement that there be curbing on the edge of the pavement area, plaintiffs proposed none. According to plaintiffs’ expert, his design proposal omitted the traditional six inch curbing. “[M]y curbing, in this case, is the retaining wall here… which is two or three feet high.” [Note 41] The retaining wall would be located at the northerly end of the proposed turnaround. [Note 42] Once again, the failure to comply with the Board’s requirements for curbing appear to relate primarily to convenience factors associated with the plaintiffs’ Plan, rather than to any § 81FF related issues. This court is unconvinced in any event, that a retaining wall crossing Leslie Ave. constitutes an acceptable substitute for the required sidewalk curbing.

(32) The Board was concerned in its Remand Decision with the lack of an adequate turnaround. The Board alluded to the plaintiffs’ self-described T-shaped or more aptly described hammerhead turnaround and found it wanting. The Board was primarily concerned with the inability of municipal emergency vehicles to safely and efficiently navigate the turnaround as depicted in the Plan.

(33) The portion of the access way fronting at a ninety degree angle directly onto Main Street [Note 43] is approximately 20 feet wide. [Note 44] Plaintiffs’ expert believed that the 20 foot wide opening would accommodate an ambulance or police vehicle. “And I could bring a small fire truck in, and have it swing back [in the hammerhead portion]; and have it come and face out Main Street. “Certainly, a hook and ladder would not be possible to bring into this site.” [Note 45] (emphasis added) As will be detailed infra, a hook and ladder truck is the only fire apparatus available to service that location.

He went on to explain that in designing the access way he was “looking for the ability to turn an emergency vehicle around, a smaller emergency vehicle…. [A] hook-and-ladder truck could not…make the turns in here… they could pull in, but then they have no way to turn the ladder around.” In leaving the scene of any fire, “[t]hey would have to back out onto Main Street.” [Note 46] However, this “back out” option is one that the plaintiffs’ own expert sought to avoid, deeming it unsafe.

(34) According to Police Chief Mahoney, the overwhelming majority of emergency calls in the City are for medical aid purposes. Consequently, there would typically be four pieces of emergency equipment responding to a call, a fire truck, police cruiser, an ambulance and a paramedic vehicle. [Note 47] Given the configuration of the relatively narrow twenty foot access way, this court is not satisfied that the access way could accommodate those vehicles at one time. In any event, “whoever pulled in would likely have to back out” directly onto Route 38. [Note 48]

This potentially confusing and unsafe situation would be further compounded by the absence of any provision for parking [Note 49] either within the access way proper or in the immediate area.

(35) Plaintiffs’ expert readily acknowledged that the Locus with four parking spaces for its two family dwelling might not provide sufficient parking for visitors to the Locus, or even for the family members residing there. Given the limited parking availability, he acknowledged that visitors would likely park, albeit illegally, in the hammerhead itself thereby hindering or even precluding the use of the turnaround for its intended purpose. [Note 50]

(36) On cross examination, plaintiffs’ expert testified regarding the difficulty that would pertain if there were cars parked in the hammerhead at a time when emergency vehicles were seeking to access the Locus. When asked “Isn’t that one of the reasons why you have parking lanes on subdivision roads?” he responded in the affirmative. [Note 51]

(37) However, plaintiffs made no provision in their proposal for parking of any sort, beyond the four spaces adjacent to the dwelling, and situated within the Locus itself.

(38) Plaintiffs’ expert acknowledged that as no parking was permitted on Route 38, or in the access way, those in need of parking might seek to utilize North Maple Street for that purpose. North Maple Street, a narrow way, lies across Route 38 from the proposed Leslie Ave. / Main Street intersection. Persons utilizing North Maple Street for parking purposes would have to cross Route 38 on foot in order to reach the Locus. The evidence compels the conclusion that crossing Route 38 on foot is an unsafe exercise under relatively favorable circumstances, but even more so at night or in inclement weather. [Note 52] Consequently, the failure to provide for adequate parking in the plaintiffs’ Plan further exacerbates a potentially hazardous situation.

(39) Those safety concerns become all the more worrisome considering the proximity of the access way to an elementary school which is 800 feet to the south. [Note 53] Moreover, the Leslie Ave. / Route 38 intersection is on a portion of the state highway that is somewhat hilly and “curvy.” The proposed access way opens onto the steepest point in one such curve. [Note 54] Looking south toward the elementary school plaintiffs’ own expert described that area as follows: “[T]he road sort of goes up and dips down, and has some curvature to the right.” [Note 55]

Further, I specifically credit the uncontroverted testimony of Woburn Police Chief Mahoney that “[i]t’s an inherently dangerous curve….and the neighbors pulling out of their driveways, have a very difficult time pulling..out…. And I believe it’s unsafe to cross the street [on foot] at any time….” [Note 56] (emphasis added)

(40) It is significant too, that the Leslie Ave. access way would fall on the westerly side of Route 38. For the testimony is uncontroverted that the westerly side of the Route 38 “is the most dangerous side.” [Note 57]

(41) According to Police Chief Maloney, while the posted speed limit is 30 miles per hour, many motorists travel in excess of that limit, thereby exacerbating the safety concerns at that location. He took note of the 107 traffic citations and 7 accidents in a 23 month period, and described them as excessive for a 1500 foot stretch of highway. Of those citations, 25 percent were issued to motorists proceeding at least 14 miles per hour over the 30 mile per hour limit. [Note 58] He cited too, chronic complaints from the neighbors, owing to that unfavorable situation. [Note 59] And while he acknowledged on cross-examination that the number of citations averaged out to one per week on the 1500 foot portion of Route 38 in question, he observed that the area of Woburn at issue is “one of our highest patrolled for radar due to the safety issues”, the concerns of the neighbors, and the proximity of the elementary school. [Note 60] He noted too, that the police “are not there the whole week, but are there on average once or twice a week for twenty minute increments.” [Note 61]

(42) Citing what he believed to be excessive speeds on this portion of Route 38, Chief Maloney expressed concern regarding the adequacy of site distances southerly from Leslie Ave. toward the elementary school. [Note 62]

(43) William Carlson, the plaintiffs’ traffic engineer, testified as to the relevant sight distances and the manner in which appropriate sight distances vary with the speed of the vehicles approaching an intersection. [Note 63] [Note 64] In the case at hand, he determined that the sight distances to the north of Leslie Ave. were over 300 feet, “probably close to 400 feet.” [Note 65] As to the south of Leslie Ave., however, he had determined in 2001 that the sight distances was “about 200 feet or maybe [225 feet].” [Note 66] He testified that his more recent measurement was approximately 250-260 feet which would “satisfy the requirement for a travel speed of 35 miles per hour. [Note 67] However, I conclude, predicated upon his testimony, that the discrepancy in sight distances looking south is attributable solely to seasonal change along with a diminished level of vegetation occasioned thereby. It is this court’s view, that safety considerations warrant the use of the more conservative, shorter sight distances.

On cross-examination, Carlson responded in the affirmative when asked if “there are standards that apply to your profession that require that you act on the assumption that people don’t always travel at the posted speed limit.” [Note 68] :

Q And what are those standards?

A Sometimes you could put out a…speed classification counter to determine what your average travel speed is.

Q Did you do that here?

A No, I did not.

Q Okay. You drove up and down Main Street once or twice, to see what speed people were going; right?

A Yes; and notice the prevailing speed.

(44) In its 2001 decision, the Board had referenced a turnaround pavement width requirement of eighty-six feet within a cul-de-sac circle or bulb. The Board compared this requirement unfavorably to the plaintiffs’ proposed turnaround of 22.5 feet x 20.5 feet in its access way. Asked to describe a cul-de-sac, plaintiffs’ expert offered the following explanation:

The right of way, the legal right of way, what we do is, we make a legal definition at the end of that road in the shape of a circle or “bulb”…. And that’s to allow fire trucks, an police, and school buses, and—people to come down to the end of the road, and be able to turn around in the road and come back. (emphasis added) [Note 69]

As to the derivation of the 86 foot turnaround requirement, defendants’ counsel posed the following to plaintiffs’ expert witness.

Q So, it would not surprise you… if I told you that the 86-foot is the minimum required for the city’s hook and ladder truck to turn around safely?

A I don’t know if they ever did a turning exercise. If they did with a hook and ladder, then they probably did; and that’s how they came up with the 86 feet.

Q And that wouldn’t surprise you.

A That wouldn’t surprise me.

Q Now if you had chosen to have the constructed portion of Leslie Avenue run up Leslie Avenue, to Summit, [Note 70] and have a T intersection at Summit, [Note 71] you would be able to construct enough of an area for a hook-and-ladder truck to turn around; isn’t that true? (emphasis added)

A Correct.

Q But you didn’t do that; correct?

A I didn’t do that. [Note 72]

It is clear to this court that the turnaround requirements sought by the Planning Board were primarily if not exclusively safety related and could have been met if the plaintiffs were so inclined.

Plaintiffs’ expert Daniel T. Donahue offered uncontroverted testimony to the effect that an 86 foot cul-de-sac could not be accommodated within Leslie Ave. I specifically find however, that an appropriate T shaped turnaround at the intersection with Summit Avenue could have been satisfactorily constructed so as to accommodate the City’s emergency vehicles, including its 40 foot ladder truck.

(45) In critical respects, Fire Chief Paul Tortolano echoed the position taken by the Chief of Police. He expressed concern that the proposed access way would prohibit his emergency vehicles from turning around and driving directly onto Route 38, “as opposed to backing into the street.” [Note 73] The Locus is in District 2 which is served by a single piece of fire apparatus. That apparatus, at approximately forty feet long [Note 74] is a combination ladder truck and pumper truck. It would generally be the first to respond to an emergency at the Locus. [Note 75] As the proposed access way does not include a turnaround that could accommodate this fire truck, [Note 76] the fire apparatus would have to back out onto Route 38, pull forward and back up again in order to proceed southerly to its quarters. [Note 77] If the emergency were of a medical nature, [Note 78] as is the case 90 percent of the time, the fire apparatus would be followed by 2 or 3 additional emergency vehicles. It is abundantly clear that not all of these emergency vehicles could be readily accommodated in the access way. This difficult situation would be even more problematic were other vehicles to be parked in the access way or the hammerhead turnaround area at the time of an emergency response. [Note 79] In that event, the ambulance “would have to back out [onto Route 38] after another piece of apparatus [had first] backed out” [Note 80] in order to reach the hospital.

(46) Not surprisingly, the Fire Chief believed that in order to provide appropriate public safety services to the Locus, it would be preferable to have a suitable turnaround constructed on Leslie Ave. itself. [Note 81]

(47) According to Police Chief Maloney, “there’s no parking lane there [in the access way], which really is a tremendous safety issue for us.” [Note 82] He concurred that “a larger area of construction on Leslie Ave. that also included a parking lane, [would] address” his safety concerns regarding those who might feel compelled to park on North Maple Street and cross over to plaintiffs’ property. [Note 83]

(48) Other issues addressed by the Board concerned the appropriate turning radius for entry into Leslie Ave. The purpose of the turning ratio requirement is to assure safe “access and egress in going from one street to another…”, [Note 84] i.e. to assure the safety of persons turning into a roadway. [Note 85] The plaintiffs’ proposal provided for a turning radius into the access way of 5 feet. According to the Woburn city Engineer, John Corey, a radius of 5 feet might be acceptable for a driveway only, but not for a roadway. The Regulations require a 30 foot turning radius for access into a minor [Note 86] street.

I specifically reject the notion advanced by plaintiffs’ expert that the regulatory turning radius requirement pertains not to the road as actually constructed, but relates solely to the legal layout. [Note 87] In the final analysis, I note that Leslie Ave. is shown on a plan as a subdivision roadway.

(49) Further, the Board referenced water and sewer issues. The Regulations call for a hydrant on every subdivision way that is laid out together with an 8 inch water main [Note 88] and 8 inch sewer line. [Note 89]

(50) Plaintiffs’ expert, Mr. Donahue readily acknowledged that he provided for no hydrant on Leslie Ave. in his plans inasmuch as the proposed dwelling would be no more than 120 feet from an existing hydrant on the across Route 38 on its easterly side. [Note 90] As a consequence, he initially made provision for no more than an inch and a half water connection to the proposed two family dwelling. [Note 91] However, I credit the testimony of both the Police and Fire Chiefs regarding the need for a hydrant on Leslie Ave. By relying upon an existing hydrant on the opposite side of Route 38, that highway would have to be closed to vehicular traffic [Note 92] should the need arise to run hoses from that hydrant to the Locus. I am satisfied that the need to run hoses in this fashion would exacerbate an already unfavorable safety situation along that portion of Route 38. [Note 93]

Pursuant to G.L. c. 41, § 81BB a court shall, on appeal “hear all pertinent evidence and determine the facts, and upon the facts so determined shall annul such [Planning Board] decision if found to exceed the authority of the Board.” The duty of the judge is to conduct a hearing de novo and on the facts to rule upon the validity of the planning board’s determination. Rettig v. Planning board of Rowley, 332 Mass. 476 (479 (1995).

In defining the applicable law, the case of Toothaker v. Planning Board of Billerica, 346 Mass. 436 (1963) is especially instructive. Toothaker concerned lots that were determined to be exempt under § 81FF. [Note 94] At issue, the court observed “is the meaning of the exemption in Section 81FF of appurtenant rights of way.” [Note 95]

In this regard, the Court offered the following observations:

Section 81FF provides in part that the “recording of the plan of subdivision in the registry of deeds before the subdivision control law was in effect…shall not exempt the land within such subdivision from the operation of said law except with respect to lots which had been sold and were held in ownership separate from that of the remainder of the subdivision when said law went into effect…and to rights of way and other easements appurtenant to such lots.”

We hold that the words emphasized in the foregoing quotation from Section 81FF relate only to each lot sold before the subdivision control law became applicable and refer to the substance of the rights of way or easements appurtenant thereto. The words of the statute do not exempt the owners of the other lots from compliance with the subdivision control law. Nor does the statue fix the location or extent of the rights of way appurtenant to lots sold before the subdivision control law became applicable. Those rights are determined by private grants. [Note 96]

Of course, both the owners and the planning board must so apply the law that the existing exempt rights of way of the lots…are not destroyed or substantially limited or interfered with…. In any event, nothing would preclude application of regulations requiring construction of ways and installation of municipal services. [Note 97]

T]he planning board as a condition of approving a subdivision plan for the plaintiffs’ land, may impose any lawful requirements, and may disregard the 1914 plan and its scheme except so far as regard thereto is necessary in order to leave the lots which were separately owned in 1951 with the substance of their rights of ways. For example, although there is no suggestion…that, apart from the lack of dead end turning circles, the 1914 ways are too narrow, nothing in the [§ 81FF] exemption would bar a requirement of greater width of so much of the way as is not adjacent to an exempt lot. Wise planning might point to eventual widening of way throughout its entire length by requiring by purchase or eminent domain the necessary part of the frontage of an exempt lot. The broad purpose of the subdivision law calls for a consistent construction of its exemption provisions. The purpose is set out in G.L. c. 41, Section 81M. Except only as stated, any or every aspect of this statutory purpose may be served in applying the law to the plaintiff’s land. [Note 98] (emphasis added) (internal citations omitted)

It is clear that the Toothaker Court viewed the § 81FF exemption “very narrowly.” [Note 99] For example, it indicated that the § 81FF exemption is to apply not necessarily to an entire way upon which an exempt lot fronts, but only to that portion of that way that is adjacent to the exempt lot. But for the narrow exemption enunciated by the Court, the municipality may appropriately apply its regulations concerning the “construction of ways and installation of municipal services.” In this connection, the Toothaker Court stressed that the purposes underlying the subdivision control law as set out in § 81M “may be served in applying the law to the plaintiff’s land.”

The narrowness of the § 81FF exception is to be contrasted with the breadth of the public safety concerns enumerated by the General Court in G.L. c. 41, § 81M; they are as follows:

[P]rotecting the safety, convenience and welfare of the inhabitants of the cites and towns in which it is, or may hereafter be, put in effect by regulating the laying out and construction of ways and subdivisions, providing access to the several lots therein, but which have not become public ways, and ensuring sanitary conditions in subdivisions… The powers of a planning board… shall be exercised with due regard for the provision of adequate access to all of the lots in a subdivision by ways that will be safe and convenient for travel…; for reducing danger to life and limb in the operation of motor vehicles; for securing safety in the case of fire, flood, panic and other emergencies;…for securing adequate provision for water, sewerage, drainage, underground utility services, fire, police, and other similar municipal equipment…. [A]ny subdivision plan filed with the planning board shall receive the approval of such board if such plan conforms to…the reasonable rules and regulations of the planning board….; provided however, that such board may, when appropriate, waive, as provided in section eighty-one R, such portions of the rules and regulations as is deemed advisable. (emphasis added)

I conclude therefore, that the Board’s implementing regulations may be applied to the entirety of Leslie Ave., subject, however, to the § 81FF exemption as it pertains to that portion of the way which is adjacent to the Locus. [Note 100] As to so much of Leslie Ave. that is not so adjacent to the Locus, the Toothaker exception will not apply.

It is apparent from the decisional law that a municipality may not impose restrictions under the subdivision control law in a manner that would tend to destroy, substantially limit or interfere with existing exempt rights of way, i.e. to the extent they are adjacent to the exempt lot. [Note 101] Beyond that however, it may “impose any lawful requirements” except as may be required to leave the lot with “the substance of [its right] of way” intact. [Note 102] As specified in Toothaker, the municipality is not otherwise limited in “applying regulations requiring construction of ways and installation of municipal services.” Clearly, under that case, § 81FF would preclude the Board from imposing a greater width requirement on that portion of Leslie Ave. adjacent to the Locus than appears on the 1916 plan. In fact, upon Remand, the Woburn Board applied the less stringent standards applicable to a minor, rather than a collector, street. Even then, the Board carefully avoided applying those of its minor street regulations that would have necessitated the widening of any portion of that 40 foot way.

There is ample evidence on the record to support the conclusion that basic notions of safety, convenience and public welfare militate against the use of the hammerhead turnaround configuration for the access way proposed by the plaintiffs. It is that configuration that lies at the heart of plaintiffs’ Plan which the Board rejected.

For its part, the Board has presented in compelling fashion, the case for improving Leslie Ave. up to Summit Ave. in order to construct a T shaped or hammerhead turnaround at that intersection. [Note 103] Such a design would permit the City’s fire apparatus and other emergency vehicles to effect a safe turnaround while exiting onto Route 38. The preponderance of the evidence leads to the conclusion that the 40 foot ladder truck, the sole piece of fire apparatus assigned to District 2 [Note 104] cannot otherwise safely and effectively access the site or effect an egress therefrom in a secure manner. We have seen that the portion of Route 38 onto which the emergency apparatus would have to back out is somewhat hilly and curving, with motor vehicles traveling, not infrequently, at excessive speed. Darkness and/or inclement weather, such as snow and ice, would only serve to heighten safety concerns. Moreover, given the excess speed at that juncture, I conclude that the proposed sight distances in a southerly direction toward the elementary school, are insufficient. While the plaintiffs could have endeavored to controvert the Police Chief’s testimony as to vehicular speed by means of appropriate testing, they chose not to do so.

Further, the absence of parking facilities on Leslie Ave. proper, would require visitors to Locus to park across Route 38 on North Maple Street, or even park illegally within the proposed turnaround. In either event, a potentially dangerous situation would be created as (a) visitors are forced to cross the highway on foot in order to reach the Locus, or (b) motor vehicles are precluded from utilizing the proposed turnaround and must instead back out of the access way. The hammerhead turnaround was devised by the plaintiffs in order to eliminate just such an eventuality. [Note 105] In emergency situations, where up to four vehicles, including a 40 foot hook and ladder truck can be expected to respond, [Note 106] the lack of adequate parking, adequate access, or the need to back onto a busy highway, could be met with tragic results.

I conclude therefore, that the plaintiffs’ proposal would serve to exacerbate an already unsafe, if not dangerous situation.

Moreover, no evidence has been presented which would explain the plaintiffs’ failure to include adequate pavement width. The access way itself is to be no more than 20 feet wide, an amount less than the 26 foot pavement width deemed acceptable for a minor street. As to sidewalks, grass strips, and curbing requirements, no compelling reason, certainly none associated with § 81FF, has been advanced by the plaintiffs to explain the failure to comply with the relevant regulatory scheme. I specifically reject the notion offered by the plaintiffs that the 2-3 foot high retaining wall crossing the way may effectively substitute for the curbing requirement.

Turning to the water infrastructure required for a minor street, including a hydrant on Leslie Ave. and the regulatory requirement for an 8 inch water main, the plaintiffs have elected to forego both. On one hand they have chosen to rely upon a hydrant on the easterly side of Route 38 for emergency purposes; on the other hand, they assert that there is no need for an 8 inch water main to service a single two family dwelling. This court concludes however, that the need to utilize a hydrant in a manner that would likely require the closing of a well-traveled state highway, is not only unreasonable, but unsafe as well.

This court concludes, moreover, that the development of Leslie Ave. up to Summit Ave. for the construction of an appropriate T shaped turnaround and 6 foot parking lane is not only warranted, but is a requisite component of any residential development project fronting on Leslie Ave. [Note 107] Absent such turnaround, the public safety requirements enumerated in § 81M cannot, in the view of this court, be properly implemented. Along with such development of Leslie Ave., the Board would be well within its authority to require the inclusion, per its Regulations for a minor street, of water and sewer infrastructure, intersection radius, and the like.

In most, if not all areas of concern to the Board, the plaintiffs could have complied with the regulatory requirement had it so chosen. In the case of developing Leslie Ave. up to Summit Ave. for an acceptable turnaround, plaintiffs’ expert Daniel Donahue alluded to cost as a relevant factor. However, no approximation of the potential cost was offered and though Daniel Donahue referred to possible “damaging shockwaves” emanating from any needed blasting, his testimony was vague and speculative, at best. [Note 108] Even if more concrete testimony were forthcoming, however, no effort was made to relate the plaintiffs’ regulatory non-compliance to the § 81FF exemption.

Plaintiff Ronald Donohoe’s own explanation for the failure to propose the development of Leslie Ave. up to Summit Ave. is especially revealing:

One of the reasons we…settled on this plan, was to minimize the…development of Leslie Avenue for future development…. I’m just looking to build one house, and access that one house; and not make it easier for anyone else for future development. [Note 109]

Lastly, this court is mindful of the fact that, upon remand, the plaintiffs made the purposeful decision not to (a) alter their original proposal in any way, (b) seek waivers deemed necessary under § 81FF or otherwise, or (c) even identify to the Board, areas of potential concern under that section. [Note 110] At the same time, on remand, the Planning Board applied the lesser standards applicable to a minor street, further modifying the 50 foot road width requirement to 40 feet. Under these circumstances, I am of the opinion that the Board acted appropriately on the application then before it. [Note 111]

For the foregoing reasons, this court concludes that the plaintiffs have failed to demonstrate that the interests protected under § 81FF would be destroyed, substantially limited or even interfered with as a consequence of the Board’s Decision. I conclude further, that the plaintiffs have failed to demonstrate that Board acted beyond it authority or that its decision should be set aside.

Consequently, the plaintiffs’ complaint must be dismissed and the decision of the Board affirmed. Judgment to issue accordingly.

Harry M. Grossman

Justice

Dated: March 25, 2010.

ALLOWED, sustaining the defendant board’s decision to refuse approval to plaintiffs’ proposed development of Leslie Avenue.

Judgment to issue accordingly.

SO ORDERED.