MISC 07-345917

January 11, 2010


Piper, J.


This action concerns the appeal of Mark Kitner (“plaintiff” or “Kitner”), pursuant to G. L. c. 41 § 81BB, from the April 4, 2007 decision of the Town of Winchendon Planning Board (“Board”) denying Kitner’s application for subdivision approval. Kitner alleges that the Board, whose members are the defendants in this action, wrongfully denied his application on the basis of an aspect of the plan which had already received a waiver from the Board, and the Board’s later denial therefore amounted to an unlawful, arbitrary or capricious decision. The Board maintains the denial was based on the facts presented in the definitive plan, was within the Board’s power, and was not arbitrary or capricious.

The complaint in this action was filed April 24, 2007. The case came before me for hearing on cross-motions for summary judgment on November 2, 2007. Following argument, I denied the cross-motions for summary judgment without prejudice, and instead directed counsel to collaborate and submit proposed forms of an order of remand. On January 29, 2008, the court issued a Remand Order, remanding this case to the Board for the purposes of:

(a) receiving from Plaintiff a revised definitive subdivision plan which addresses those items identified in a letter dated March 29, 2007, from consulting engineers Tighe and Bond to the defendant Board, and (b) conducting a new public hearing. ... If, after considering the Plaintiff’s revised definitive subdivision plan application, the Board votes to disapprove that plan either wholly or in part on the basis of the length of the cul-de-sac road to be constructed, then the Board also is to consider, and to provide in its revised written decision the reason(s) why its disapproval of the revised definitive plan is appropriate given the Board’s earlier decision, dated August 4, 2006 and filed with the Town Clerk August 9, 2006, which approved the Plaintiff’s preliminary subdivision plan on the condition, among others, that the cul-de-sac length not exceed 1200 feet....

See Kitner v. Winchendon Planning Bd., Land Court Misc. Case No. 345917 (January 29, 2008) (remand order)(Piper, J.).

On remand, the Board again denied plaintiff’s application. Plaintiff filed an amended complaint on April 28, 2008.

I tried the case in Boston on January 15, 2009. Court reporter Wendy Thomas was sworn to transcribe testimony at trial and produce a transcript. Four witnesses testified at the trial: the Plaintiff, Denis J. McLaughlin III (engineer acting for Kitner), Ellen DeCoteau (Planning Agent for the Board), and David J. Partridge (engineer hired by the Board). Twenty-three exhibits were entered into evidence and are incorporated in this decision for the purpose of any appeal. At the close of the evidence, I suspended the trial, allowing the parties to await the receipt of the trial transcript, to submit to the court posttrial briefs and proposed findings of fact and rulings of law. On April 27, 2009, trial resumed for closing arguments. I now decide the case, as it has been submitted to me.

On all of the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into consideration the pleadings, memoranda, and argument of the parties, I find the following facts and rule as follows:

1. The subject property (“locus”) is a 26.75 acre parcel in Winchendon, Worcester County, Massachusetts, identified as Parcel 97 on Map 8 of the Winchendon Assessor’s maps, described in a deed recorded in Book 35480, Page 338 with the Worcester County Registry of Deeds, and located in Winchendon’s R2 zoning district. 2. On May 22, 2006, Denis J. McLaughlin, III, of PLACES Site Consultants, Inc., (“McLaughlin”), acting as Kitner’s engineer, submitted two preliminary subdivision plans to the Board. One depicted a Conventional Subdivision Plan (“Conventional Preliminary Plan”) and the other depicted a Flexible Residential Development Subdivision Plan (“Flexible Preliminary Plan”). The flexible plan required a special permit as well as subdivision approval.

3. A Flexible Residential Development (“FRD”) is governed by Section 5.6 of the Winchendon Zoning Bylaw. The Board must consider the application for a special permit for a Flexible Residential Development “in addition to any other requirements of the Subdivision Control Law.” This section of the bylaw allows the Board to award a “density bonus to increase the number of dwelling units” beyond what would be available under conventional subdivision regulations, in certain circumstances. One such circumstance is for each additional ten percent open space (above required minimums) a developer may be awarded a five percent increase in density.

4. Both the Conventional Preliminary Plan and the Flexible Preliminary Plan depicted a twelve-lot subdivision, however, the Flexible Preliminary Plan contained smaller lots and more open space. Both plans proposed a single cul-de-sac roadway. The proposed length of the cul-de-sac in the Conventional Preliminary Plan was 1450 feet; in the Flexible Preliminary Plan, the cul-de-sac was under 1000 feet.

5. The Board held a meeting on July 18, 2006 during which both preliminary plans were reviewed. It was, however, clear that the Board preferred the Flexible Plan, and while the Conventional Plan was not withdrawn, the focus of the discussions from this point forth was the Flexible Plan.

6. On August 4, 2006, the Board issued a letter approving the preliminary plan. First, the Board requested that the plaintiff reduce the number of lots, and that a one hundred-foot buffer be used in three of the most south and western lots in the subdivision. Second, “[s]ubdivision approval was also given with the caveat that the cul-de-sac length not exceed 1200' total, with the roadway beginning at the Zink property line.” [Note 1] (“Preliminary Approval”)

7. On November 9, 2006, McLaughlin submitted to the Board definitive plan applications, styled as a “Combined Flexible Residential Development and Definitive Subdivision Submission” (“Definitive Plan”). The November 9, 2006 submission included, among other documents, an application for an FRD special permit, an application for subdivision approval, a “Project Narrative - Environmental Assessment Report,”a Drainage System Analysis, earth removal analysis, and a Draft Open Space Restriction.

8. Appended to the Definitive Plan submission were two site plans: one, dated October 10, 2006, depicted a twelve-lot cluster development (“Flexible Definitive Plan”) and the other, dated October 31, 2006, depicted an eleven-lot conventional layout (“Conventional Definitive Plan”).

9. The Flexible Definitive Plan featured several areas that would be preserved as open space, fifty-foot vegetated buffers strips, and a “multi-purpose ballfield area, with parking[.]”

10. The Definitive Plans included a “Project Narrative - Environmental Assessment Report” intended to comply with Section 3.024 of the Subdivision Rules. The Project Narrative - Environmental Assessment Report included the subtitle “Joslin Meadow Estates Cluster Subdivision”

11. The Definitive Plans of November 9, 2006, included a request for four waivers from various sections of the Subdivision Rules, namely:

from Section 3.022, which requires plans be prepared with India ink on tracing cloth;

from Section 4.0216, which requires property line roundings at intersections;

from Section 4.0231, [Note 2] which provides for a maximum length of 600 feet for dead-end streets; and

from Section 4.022, which requires four-foot sidewalks on each side of the street.

12. Section 4.0231 of the Winchendon Rules and Regulations Governing the Subdivision of Land (“Subdivision Rules”) provides the following:

4.0231 Dead-end streets shall not be longer than 900' in R1, 600' in R2 and 500' in all other zones unless, in the opinion of the Board, a greater length is necessitated by topography or other local conditions.

13. Section 6.02 of the Subdivision Rules provides, in part, that, “Strict compliance with the requirements of these Rules and Regulations may be waived when, in the judgment of the Board, such action is in the public interest and not inconsistent with the intent of the Subdivision Control Rules and Regulations.”

14. The Board engaged the engineering firm Tighe & Bond to review the Definitive Plans prior to the Board’s hearing on December 5, 2006. At the public hearing, the Board provided the plaintiff a copy of the review comments from Tighe & Bond. The meeting was continued until December 19, 2006.

15. A site walk of the locus occurred on December 9, 2006. Public hearing resumed on December 19, 2006, and was continued until January 16, 2007. McLaughlin provided the Board with a written response to the Tighe & Bond review, dated December 19, 2006.

16. At the January 16, 2007 meeting, Kitner and McLaughlin provided the Board with further written responses, dated January 11, 2007, and revisions to the plans that were intended to respond to the review comments of Tighe & Bond.

17. The review comments by Tighe & Bond raised several issues other than roadway length. Several of the reasons the Board ultimately relied on to support its denial originally appeared in the December 5, 2006 review comment.

18. The next hearing occurred on February 27, 2007. At this meeting, McLaughlin delivered to the Board a set of revised plans (“Modified Plan”) and a request to withdraw without prejudice the FRD special permit application. The Modified Plan differed from any previously submitted Definitive Plan. The Modified Plan adhered to the roadway geometry of the Definitive Flexible Plan, but re-divided the lots to meet conventional zoning criteria. The Modified Plan depicted nine lots instead of the original twelve, realigned the emergency access right-of-way and drainage basin orientation, included a notification of intent to install residential sprinkler systems, and did not include the proposed ball field. The Board engaged engineer David Partridge (“Partridge”) to review the Modified Plan.

19. At the March 6, 2007 hearing the Board allowed Kitner to withdraw the Flexible Definitive Plan without prejudice.

20. On March 29, 2007, Partridge submitted to the Board an evaluation of the Modified Plan (“Partridge Review”). McLaughlin responded to the Partridge Review in a letter dated April 3, 2007. Following a hearing on April 3, 2007, the Board denied approval of the Modified Plan.

21. The Board’s decision denying subdivision approval to the Modified Plan, dated April 4, 2007, and filed with the Town Clerk on April 5, 2007 (“Initial Denial”) stated denial was appropriate because the plan depicted a road in excess of 600 feet. [Note 3]

22. In accordance with the Remand Order, the Board held a hearing on the plaintiff’s application for subdivision approval on April 1, 2008, and again denied the application. In a decision dated April 2, 2008 and filed with the Town Clerk on April 11, 2008, the Board explained its reasons for denial despite the approval given to the preliminary plan, and also explained other reasons for denial. All but four of the reasons the Board relied upon for denying the application appeared in the March 29, 2007 Partridge Review; several of those appeared also in the December 5, 2006 review comment 1.

* * * * *

In reviewing appeals brought pursuant to G. L. c. 41, § 81BB, the trial judge hears the matter de novo, makes independent findings of fact and, on the facts so found, determines whether the plan submitted to the planning board conforms to the reasonable rules and regulations of the board. Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 478, (1955). “[T]he developer 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) (citation omitted). While a trial judge may not substitute his or her own judgment for that of the planning board, see Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 21 (1977), the Board’s decision will not be sustained where it has acted outside of its authority under the subdivision control law.

Section 81M of G. L. c. 41 “requires approval of any subdivision plan which conforms to the . . . reasonable rules and regulations of the planning board.” See Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 84-85 (1976). For a denial to be upheld, the planning board must “state in detail wherein the plan does not conform to the rules and regulations of the planning board or the recommendations of the health board or officer[.]” G. L. c. 41, § 81U. A court’s review of such a denial “must be confined to the reasons for disapproval of the subdivision plan stated by the planning board.” Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306 , 307 (1976).

“A planning board may in any particular case, where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law, waive strict compliance with its rules and regulations.” G. L. c. 41, §81R. The decision whether to grant a waiver involves a great deal of discretion, and if “reasonable minds might in good faith differ, without doubting the reasonableness of the opposing view, the conclusion of the planning board should be sustained on judicial review.” Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 809 (1981). The waiver of a subdivision regulation need not be specified and listed in writing. Meyer v. Planning Bd. of Wesport, 29 Mass. App. Ct. 167 , 170 (1990). An implied waiver may be demonstrated by showing evidence of a “conscious waiver.” Id.

Length of the Subdivision Road

The first issue is whether the Board did or did not grant a waiver as to roadway length. The Preliminary Approval of August 4, 2006 stated that it came with the “caveat” that “the cul-de-sac length not exceed 1200' total[.]” The Board argues, essentially, that the absence of the word “waiver” in the Preliminary Approval compels the conclusion that no waiver was granted. This argument would carry some weight, perhaps, if the Preliminary Approval letter were silent as to the issue of road length, and merely recited an approval. Here, however, where the Board explicitly inserted a “caveat,” a condition that a street ending in a cul-de-sac not exceed 1200 feet in length, the only conclusion is that they consciously waived the requirement that a cul-de-sac not exceed 600 feet.

The Board next argues that a waiver, if granted, was intended to apply only to the Flexible Preliminary Plan and not to the Conventional Preliminary Plan. Even if the Board did so intend, the Preliminary Approval letter did not accomplish this. The Board could easily have made the distinction explicit, but instead chose to issue a single letter, and deal with the issue of road length in a single paragraph. The May 22, 2006 submission to the Board included two preliminary plans, and the Board thus was required to differentiate between the two if it intended to make a distinction. In the absence of such a distinction, I find and rule that the Preliminary Approval of August 4, 2006 granted a waiver of 600 foot road length regulation for both the Conventional and Flexible Preliminary Plans.

Legal Consequence of a Preliminary Waiver

This waiver, as I have said, was given as to the preliminary plans Kitner submitted. The second issue I thus must address is, having concluded that the Board waived the roadway length requirement for both preliminary plans, whether the approval of the preliminary plans, pursuant to G. L. c. 41, § 81S, carries with it any binding effect on the Board when it comes to consideration of a definitive plan. Specifically, if a Board approves a preliminary plan prepared in such a manner, as here, that would require waivers from subdivision rules, are they then bound by the preliminary approval to the degree that the Board essentially is estopped from denying the definitive version of that plan based on the needed waivers?

The appellate caselaw provides little guidance on this question. A footnote in a 2009 decision of the Appeals Court reads,

Submission of a preliminary plan for a residential development is not required. See G. L. c. 41, s. 81S. However, an applicant might wish to submit a preliminary plan to test a planning board’s reaction. See Eno & Hovey, Real Estate Law s. 24.11 (4th ed. 2004). Approval or disapproval of a preliminary subdivision plan has no legal consequence “beyond freezing zoning requirements for a definitive plan.” Id. s. 24.10 n.2, at 678_679. Should an applicant submit a preliminary subdivision plan and within seven months thereafter seek definitive subdivision approval, the zoning laws in effect at the time of the filing of the preliminary plan will control. See G. L. c. 40A, s. 6.

Wine v. Planning Bd. of Newburyport, 74 Mass. App. Ct. 521 , 523 n.3 (2009) (emphasis supplied). This understanding of the preliminary approval process is consistent with the idea that 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[.]” Meyer v. Planning Bd. of Westport, 29 Mass. App. Ct. 167 , 170 (1990), and that “[t]he provision allowing preliminary plans (now § 81S) was first added by St. 1947, c. 340, §4. The planning board was allowed to give only tentative approval, with or without suggested modifications. Board action at this stage was not intended to be binding; rather it was merely a step toward a final decision which would later be made on a complete and detailed definitive plan.” Paul Livoli, Inc. v. Planning Bd. of Marlborough, 647 Mass. 330 , 334 (1964).

I am further guided by the fact that law plainly provides that disapproval of a preliminary plan gives rise to no right of appeal. See Paul Livoli, Inc., 647 Mass. at 333-34. An appeal may not be taken from the denial of a preliminary plan because “no final determination” by the Board has been made at that “preliminary stage of the proceedings” when only a preliminary plan has been presented. See Paul Livoli, Inc., 647 Mass. at 334. Concomitantly, a potentially aggrieved abutter has no right to appeal a planning board decision that approved merely a preliminary subdivision plan. [Note 4] The fact that neither a denial nor an approval is appealable confirms that preliminary plans lack the finality that binds a Board to waivers granted at this stage.

For a valid preliminary plan, the applicant need only show existing and proposed streets, drainage systems, and topographical features “in a general manner” and need only provide lot “approximate” locations and dimensions of proposed lots and adjacent streets. G. L. c. 41, § 81L. [Note 5] The emphasis on generality and approximations is telling. A preliminary plan might not include enough detail to reveal a potential area of concern for the planning board. In fact, the defendant Board in the case at bar makes this argument, stating in their April 2, 2008 decision following remand that the full extent of the cuts and fill required to construct the proposed subdivision road was not apparent based on the preliminary plans, which were not required to include fulsome or exact topographic details.

This is not to say that the preliminary plan process is grounded in futility. An applicant for subdivision approval receives at least two benefits from submitting a preliminary plan for approval. First, it is the filing of a preliminary plan that starts the so-called “zoning freeze” in the fifth paragraph of G. L. c. 40A, § 6. See generally Mass. Broken Stone Co. v. Weston, 430 Mass. 637 (2000). Second, the preliminary plan process allows the applicant to “test a planning board’s reaction,” see Wine v. Planning Bd. of Newburyport, 74 Mass. App. Ct. at 523 n.3, and engage in the “working out of difficulties and solutions”contemplated in Meyer v. Planning Bd. of Westport, 29 Mass. App. Ct. at 170. It has not escaped my attention that when a planning board grants a preliminary waiver, and then denies the same waiver after definitive plans are submitted, there is little chance for a “give-and-take,” see Meyer, supra at 170, and little chance for an applicant to tailor the subdivision plan into something suitable to all parties. A property owner is entitled to notice as to what rules and regulations a subdivision application must comply with, and a preliminary waiver that is not binding and thereafter changed adds uncertainty to the process, not resolution of open issues.

Although no reported case so holds, it may be that where a preliminary plan is approved which required and received one single waiver, an argument for estoppel might lie if the board subsequently denies the definitive plan based solely on the one waiver. In that case the expense borne by the applicant in producing fully detailed definitive versions of the preliminary plan, relying on the fact that the roadway length would not be a problem, might compel the conclusion that the Board was bound by the preliminary waiver. That, however, is not the case here. The Modified Plan finally submitted for approval was not merely a fully-detailed version of either the Flexible Preliminary Plan or the Conventional Preliminary Plan; the Modified Plan added new design elements and combined elements from both preliminary plans.

Board Had Discretion to Deny Waiver

Having concluded that the waiver of the 600 foot maximum cul-de-sac length in the Preliminary Plans was not binding on the Board, I must determine whether the Board abused its discretion in not granting the same waiver to the Modified Plan. A subdivision plan “may not be disapproved ‘merely because the board feels general public considerations make such action desirable,’” Mac-Rich Realty Constr., Inc., 4 Mass. App. Ct. at 84, however, the decision to grant a waiver requires a determination whether “such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law.” G. L. c. 41, §81R. Moreover, a “planning board may properly regulate the length of dead_end streets within a subdivision.” Federline v. Planning Bd. of Beverly, 33 Mass. App. Ct. 65 , 68 (1992) (and cases cited). It would not be permissible for the Board to have denied the Modified Plan (had it otherwise complied with all the rules) merely because the Board preferred the flexible plan, but the Board has broad discretion to deny a request for a waiver. I cannot conclude that the Board’s decision not to waive the maximum road length requirement was an abuse of discretion.

Additional Grounds for Denial

The Board was given the opportunity to offer reasons for denying the Modified Plan other than the roadway length. In its Disapproval of a Plan Subsequent to Court Remand, dated April 2, 2008, the Board set forth a number of additional reasons for denying the application. With the exceptions detailed in the following paragraphs, the April 2, 2008 decision of the Board is to be upheld and the denial sustained.

Invalid Grounds for Denial

The December 5, 2006 review comments from Tighe & Bond claimed there was a discrepancy between an outlet pipe as depicted on Sheet 8 and titled “outlet Structure,” and as depicted on the plan view. In his December 19, 2006 response, McLaughlin wrote “The detail in question is utilized in the fire pond outlet control.” Nonetheless, the Partridge Review again asked that the plans be revised to show where the outlet pipe would be used. McLaughlin again responded, in the April 3, 2007 letter, that “The outlet structure is located at the fire pond outlet. The detail in question is utilized in the fire pond outlet control.” Partridge testified at trial that he believed the Outlet Structure “pertains to the fire pond[,]” but that it was “hard to follow as to which detail that really pertained to. . . .” I conclude that Outlet Structure depicted on Sheet 8 is for use in the fire pond outlet, and that the Board was not entitled to base their denial on this alleged discrepancy.

Tighe & Bond recommended a permanent sedimentation marker post be installed within each basin. This is not required by the Subdivision Rules. A planning board is not empowered to attach conditions to the approval of a definitive plan, as it might while serving as a special permit granting authority in the special permit process. Every requirement that an applicant must meet to get a subdivision approved must be set forth in the subdivision rules and regulations prior to the filing of the preliminary plan. To the extent that the Definitive Plan was denied based on the Applicant’s failure to install a sedimentation marker post, that denial was in excess of the Board’s authority.

The Partridge Review indicated that “[a]dditional information should be provided as to the intent and status of the right-of-way extension and fronting parcels. The Board based their denial in part on the claim that the Board never received a satisfactory explanation of this right-of-way extension and Parcels A, B, C, and D depicted on the Modified Plan. The Applicant, however, in its April 3, 2007 letter, explained that the right-of-way extension was to permit abutting property owners to connect to the public way system. There was testimony at trial that as early as the July 18, 2006 meeting, the Board requested that the subdivision road include an “extension easement or some access through the property to the rear rail corridor.” At trial, the Town’s consulting engineer, Mr. Partridge, testified that the depiction of this right-of-way is “not necessarily grounds for rejection[.]” I agree. In fact, Section 4.0212 of the Subdivision Rules provides that “[p]rovision satisfactory to the Board shall be made for the proper projection of streets, or for access to adjoining property which is not yet subdivided.” This was not a proper grounds for denying the application.

The Modified Plan provided no documentation as to how each of the nine standards of the Massachusetts Stormwater policy had been met, and the Board listed this as a reason supporting denial. The Subdivision Rules do not require such documentation, and the Applicant maintains that review by the Conservation Commission is a separate process. The Drainage System Analysis included in the November 9, 2006 submission represents that “The drainage system for the site also meets the requirements for the Massachusetts Stormwater Quality Policy.” To the extent that the Subdivision Rules do not require documentation that the Massachusetts Stormwater policy standards have been met, it is not a proper basis for denial.

Independent Sufficient Grounds for Denial

The remaining reasons for denial relied upon by the Board are supported by the record.

The Board claims the earth removal figures in the Applicant’s “Development Earthwork Volume Analysis” includes only volumes for the proposed roads, and not volumes to be removed from the lots shown on the plan. This is not correct. The Earthwork Volume Analysis clearly indicates that 28,890 cubic yards of earth removal is attributable to the building lots. The building lots referenced, however, are cluster lots pursuant to the FRD special permit. To the extent that the Earthwork Volume Analysis for the Flexible Plan is not applicable to the Modified Plan, the Board’s denial was proper.

The Partridge Review noted that the Modified plan lacked a Site Evaluation Statement. The Applicant contends that the Site Evaluation Statement contained in the original November 2006 is sufficient. It is not unfair or unlawful for the Board to require an updated Site Evaluation Statement to focus specifically on the lot configuration in the Modified Plan. It may be the case that substantial portions of the Site Evaluation Statement could have been copied and pasted, as it were, into a revised statement, to produce one with modest additional work, but that does not alter the propriety of the Board requiring the revised statement. The November 9, 2006 Site Evaluation Statement focuses almost exclusively on the flexible lot layout, and many of the stated impacts start with the assumption that large areas of permanent open space will be created. The switch from a cluster development to a conventional lot layout changes some of the basic assumptions under which the Site Evaluation operates.

The Partridge Review requested that the Modified Plan drawings be revised to “depict road underdrain locations and details that will draw groundwater away from the road” for those areas where road cuts could intercept seasonal high groundwater. The Applicant contends the construction detail plans do, in fact, depict the underdrain details, however, the Applicant has not offered any evidence where, specifically, this detail is to be found. Partridge testified at trial that road underdrains would be “pipes with drainage stone so that [water] would drain away from the bottom of the road. . . .” There is nothing on Sheet 7 or Sheet 8 that fit this description, and I conclude, as I must, that the Board was justified in denying the Modified Plan based on the failure to depict road underdrains.

Similarly, despite the fact that the Partridge Review requested details about a retaining wall to be constructed between STA 0+00 and STA 1+50, no detail was provided other than the Applicant’s statement that “Large masonry concrete blocks are anticipated.” No typical design for the box culvert at STA 6+16 is shown on the plan view, as required by Section 3.022165 of the Subdivision Rules, making it impossible to determine whether the design complies with Army Corps of Engineers standards (to the extent applicable). The Applicant did not provide the procedures and findings of percolation tests conducted on the locus, as required by Section 3.0242 of the Subdivision Rules. The Applicant requested a waiver from section 4.022 of the Subdivision Rules, which require sidewalks to be installed on both sides of the subdivision way. The waiver was not granted and the plans show no sidewalks. Denial on this ground was proper.

Finally, Tighe & Bond, in its December 5, 2006 review comment requested further drainage calculations, regarding the peak flow rate to Beaver Pond. McLaughlin provided a revised Drainage Systems Analysis, revised February 27, 2007. Tighe & Bond originally claimed that McLaughlin’s drainage numbers were skewed because “[b]y incorporating a large off-site watershed area into the runoff comparison, . . . the peak runoff rates from the project limits are supressed.” McLaughlin responded that, “[t]he impact of upland subcatchment flowing by this development cannot be ignored. The drainage from this site is specifically analyized [sic] to verify and ensure that it does not coincide with the peak flows from the larger upstream area and thereby contribute to downstream flooding impacts.” Section 4.07 of the Subdivision Rules states that an “increase in the volume of surficial drainage . . . onto abutting properties is not permitted.” No further evidence of the adequacy of the drainage systems was presented at trial. The Applicant here has not carried his burden of showing that the proposed project complies with Section 4.07 of the Subdivision Rules, and denial on this ground also was proper.

Judgment accordingly.

Gordon H. Piper


Dated: January 11, 2010


[Note 1] The Zink property fronts on Joslyn Road, and the line between the Zink property and the locus creates a substantial portion of the front lot line of the locus.

[Note 2] The November 9, 2006 document recites “Section 4.022,” however, the applicable provision of the Subdivision Rules is in 4.0231.

[Note 3] The decision also states that “[t]he Board now has to conclude that, in direct violation of the earth removal bylaw, the applicant’s principal intent is earth removal under the pretense of a residential subdivision.”

[Note 4] Paul Livoli, Inc. instructs that it is not only the lack of a final determination that prevents appeals from preliminary plan approval or denials, it is also a matter of statute. Section 81S of G. L. c. 41 states “Except as is otherwise expressly provided, the provisions of the subdivision control law relating to a plan shall not be applicable to a preliminary plan,” and the Supreme Judicial Court determined that G. L. c. 41, § 81BB is one of those provisions that does not apply to preliminary plans. See Paul Livoli, Inc., 647 Mass. at 333-34.

[Note 5] The full text of the definition from G. L. c. 41, § 81L is:

“Preliminary plan” shall mean a plan of a proposed subdivision or resubdivision of land drawn on tracing paper, or a print thereof, showing (a) the subdivision name, boundaries, north point, date, scale, legend and title “Preliminary Plan”; (b) the names of the record owner and the applicant and the name of the designer, engineer or surveyor; (c) the names of all abutters, as determined from the most recent local tax list; (d) the existing and proposed lines of streets, ways, easements and any public areas within the subdivision in a general manner; (e) the proposed system of drainage, including adjacent existing natural waterways, in a general manner; (f) the approximate boundary lines of proposed lots, with approximate areas and dimensions; (g) the names, approximate location and widths of adjacent streets; (h) and the topography of the land in a general manner.