HARROWBY PROPERTY CO., LTD. vs. DAVID O. DOUGLAS, SUSAN S. SILVA, VIRGINIA C. JONES, LEAH SMITH, EILEEN MALEY and JAMES POWELL, as they constitute the Planning Board of the Town of West Tisbury, and THE PLANNING BOARD OF THE TOWN OF WEST TISBURY

Plaintiff filed its unverified complaint on July 10, 2009, appealing, pursuant to the provisions of G. L. c. 41, § 81BB, a decision (“Planning Board Decision 2”) of Defendant Town of West Tisbury Planning Board (the “Planning Board”) which denied approval of a modification to a subdivision plan. The Planning Board filed its Answer on July 31, 2009. A case management conference was held on September 16, 2009. This court issued a Remand Order (the “Remand Order”) dated October 30, 2009, for the limited purpose of having the Planning Board set forth findings and specific reasons for Planning Board Decision 2. The Planning Board issued a Supplemental Decision (“Planning Board Decision 3”) dated November 23, 2009. Plaintiff filed its First Amended Complaint on December 9, 2009, appealing Planning Board Decision 3. The Planning Board filed its Answer on December 24, 2009.

Plaintiff filed its Motion for Summary Judgment on January 20, 2010, together with supporting memorandum, Statement of Material Undisputed Facts, and Affidavit of Erica Mastrangelo (attorney). On March 1, 2010, the Planning Board filed its Cross-Motion for Summary Judgment, together with supporting memorandum and Affidavit of Simone A. DeSorcy (Board Administrator to the Planning Board). Plaintiff filed its Reply on March 26, 2010, together with Supplemental Affidavit of Richard Gallogly. [Note 1] On April 30, 2010, the Planning Board filed its Reply, together with Motion to Strike the Supplemental Affidavit, and Second Affidavit of Simone A. DeSorcy. Plaintiff filed its Opposition to Motion to Strike on May 10, 2010. A hearing was held on all motions on August 25, 2010, and at that hearing the parties discussed mediation. By letter to this court dated October 13, 2010, the parties reported that mediation would not be productive, and the matter was taken under advisement.

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

I find the following material facts are not in dispute:

1. On April 12, 1993 the Planning Board approved a definitive subdivision plan of registered land (“Planning Board Decision 1”) located off John Cottle Road in West Tisbury, MA and titled “Subdivision Plan of Land in West Tisbury” prepared by Vineyard Land Surveying and dated December 30, 1993 (the “1993 Plan”), creating Lots 1-5 as shown on Land Court Plan No. 28839-B. [Note 2] Lots 1 and 5 were not buildable lots. The Planning Board granted no waivers in Planning Board Decision 1. The subdivision road, as show on the 1993 Plan, was a dead-end street longer than 500 feet (the “Subdivision Road”). [Note 3] As a part of the subdivision, an Irvine Road Association Agreement dated December 6, 1994 (the “ Road Maintenance Agreement”), relative to road maintenance, was filed with the Dukes County Registry of Deeds. The Road Maintenance Agreement was created, “to manage and maintain the ‘traveled dirt road’ and the ‘40 foot wide right of way’ ... as shown on [the 1993 Plan].” [Note 4]

2. On April 3, 2009, Plaintiff filed with the Planning Board an Application for Approval of a Modified Subdivision Plan (the “Modified Subdivision Plan”) which proposed to relocate and abandon the Subdivision Road and create a new subdivision road (the “Modified Subdivision Road”) to the west of the Subdivision Road pursuant to a plan titled, “Sketch Plan of Land in West Tisbury, Mass. Prepared for Harrowby Property Company, Ltd.” dated February 2, 2009, and prepared by Vineyard Land Surveying & Engineering, Inc. (the “February 2009 Plan”). [Note 5] The Modified Subdivision Road, as proposed, will also be a dead-end street longer than 500 feet. [Note 6]

3. Vineyard Land Surveying and Engineering, Inc. prepared a plan for Plaintiff titled, “Plan of Land in West Tisbury, Mass. Prepared for Harroby Property Co.” dated May 19, 2009 (the “May 2009 Plan”). The May 2009 Plan shows both the Subdivision Road and the Modified Subdivision Road, as well as the portion of the Subdivision Road to be abandoned.

4. At a public hearing on June 22, 2009, the Planning Board issued a Certificate of Denial, denying the Modified Subdivision Plan. Planning Board Decision 2 stated,

The Planning Board finds that, per Section 4.5-5 of the Rules and Regulations, the proposed plan does not give adequate protection to the health, safety, convenience and general welfare of the present and future inhabitants of the Town or of prospective purchasers of land within the subdivision.

5. By Remand Order (the “Remand Order”) dated October 30, 2009, this court ordered that Planning Board Decision 2 be remanded to the Planning Board

for the limited purpose of setting forth findings and specific reasons in support of the Board’s decision to deny a modification to the approved subdivision plan. The original decision shall not be superceded by any supplemental written decision of the Board ... The Board shall not conduct a new public hearing, the original public hearing having been closed on June 22, 2009, and shall not accept or consider any new evidence with respect to the proposed modification.

6. The Planning Board held hearings on November 16, 2009 and November 23, 2009. By Supplemental Decision dated November 23, 2009 (“Planning Board Decision 3”), the Planning Board made additional findings and statement of reasons for the denial, as follows:

Planning Board Decision 3 also granted sixteen waivers of the Rules.

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Motion to Strike

The Planning Board moves to strike the Supplemental Affidavit of Richard Gallogly (Plaintiff’s attorney) and a supplemental plan titled, “Plan of Land in West Tisbury, Mass. Prepared for Harrowby Property Co.” dated March 24, 2010 (the “2010 Plan”) attached thereto. As grounds for its motion to strike, the Planning Board argues that the 2010 Plan was not presented to the Planning Board prior to Planning Board Decision 3 and the corresponding hearings on the matter on November 6, 2009 or November 23, 2009. The 2010 Plan is dated March 24, 2010, four months after the final hearing on November 23, 2009. Moreover, on October 30, 2009, the Remand Order stated “the Board ... shall not accept or consider any new evidence with respect to the proposed modification.” Plaintiff contends that the 2010 Plan should be admitted into the record because the Planning Board refused to engage in constructive negotiations with Plaintiff in regards to the common driveway issue. See MP Corp. V. Planning Bd. of Leominster, 27 Mass. App. Ct. 812 , 820 (1989) (indicating subdivision application process is intended to prompt the Planning Board to make “definite suggestions for amendment of the plan”).

It is true that the subdivision application process provides a convenient forum for the Planning Board to suggest changes to a subdivision plan. Plaintiff contends that there was never any discussion with the Planning Board in regards to the common driveway issue, and that issue first arose in the Planning Board’s Cross-Motion for Summary Judgment. The fact still stands, however, that the Remand Order prohibited the Board from accepting any additional plans or other evidence pertaining to the subdivision modification. The Planning Board did not have the benefit of the 2010 Plan. It would be inequitable for this court, in its consideration of the legitimacy of Planning Board Decision 3, to make its finding based on evidence that this court explicitly prohibited from the Planning Board’s consideration. As a result, I ALLOW the Planning Board’s Motion to Strike the Supplemental Affidavit and the 2010 Plan.

Planning Board Decision 3

The modification of a subdivision plan is controlled by G.L. c. 41 § 81W, which states,

A planning board, on its own motion or on the petition of any person interested, shall have power to modify, amend or rescind its approval of a plan of a subdivision, or to require a change in a plan as a condition of its retaining the status of an approved plan. All of the provisions of the subdivision control law relating to the submission and approval of a plan of a subdivision shall, so far as apt, be applicable to the approval of the modification, amendment or rescission of such approval and to a plan which has been changed under this section.

Moreover, G.L. c. 41 § 81U provides that,

When a definitive plan of a subdivision is submitted to the planning board, as provided in section eighty-one O, a copy thereof shall also be filed with the board of health or board or officer having like powers and duties. Such health board or officer shall, within forty-five days after the plan is so filed, report to the planning board in writing, approval or disapproval of said plan, and, in the event of disapproval, shall make specific findings as to which, if any, areas shown on such plan cannot be used for building sites without injury to the public health, and include such specific findings and the reasons therefor in such report, and where possible, shall make recommendations for the adjustments thereof. Failure of such board or officer to report shall be deemed approval by such board or officer. Such health board or officer shall send a copy of such report, if any, to the person who submitted said plan.

The Summary Judgment record does not disclose any evidence that the Board of Health or any other municipal agency made any recommendation relative to the Modified Subdivision Plan. I shall address each of the four reasons stated in Planning Board Decision 3 relative to the denial of the Modified Subdivision Plan.

The burden of proof is on the appellant to show that the planning board acted improperly in disapproving the subdivision plan. Selectmen of Ayer v. Planning Board of Ayer, 3 Mass. App. Ct. 545 , 548 (1975). A planning board’s decision not to grant a waiver can be overturned if it is based on legally untenable grounds or is unreasonable, whimsical, capricious or arbitrary. Wine v. Planning Board of Newburyport, 74 Mass. App. Ct. 521 , 526 (2009). A court’s review is confined to the reasons stated by the planning board for its disapproval of the subdivision plan. Fairbarn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 (1977). A planning board does not have “freedom to disapprove plans which comply with applicable standards merely because the board feels general public considerations make such action desirable.” Castle Estates, Inc. v. Park and Planning Board of Medfield, 344 Mass. 329 , 333 (1962).

A. Common Driveway

Finding 5 of Planning Board Decision 3 states in part, “[a]llowing the applicant to leave in place the existing subdivision road, on the ground, and use it as a common driveway for Lots 2, 3, and 4 would violate Section 3.3 of the Town’s Zoning By-Laws.” Plaintiff contends that the Subdivision Road shall be abandoned and is not a common driveway. The Planning Board contends that the Subdivision Road will not be abandoned and will remain as a common driveway between Lots 2, 3, 4, and two lots outside of the subdivision; thus the Modified Subdivision Plan does not conform with the West Tisbury Zoning Bylaw (the “Bylaw”). [Note 7] Section 14.2 of the Bylaw defines a driveway as “[a] private way providing vehicular access from a public or private road to a residence...”, and a common driveway as, “[a] driveway serving no more than four lots, owned in common or created by reciprocal easements”. Section 3.3 of the Bylaw states,

In addition to the principal uses permitted in a district, accessory uses which are subordinate and customarily incidental to such permitted uses shall be allowed on the same terms as the principal use (i.e. by right, with Site Plan Review, and/or by Special Permit), except that Site Plan Review shall be required for residential accessory structures that exceed 2,500 square feet, including barns or stables (unless exempted as agricultural structures), riding arenas, or other recreational facilities. Common driveways shall be considered customary accessory uses, allowed with Site Plan approval unless the principal use involves the review of a Site Plan or subdivision plan showing the common driveway in connection with a Special Permit or subdivision approval.

The Planning Board points to Beale v. Planning Board of Rockland, 423 Mass. 690 , 695 (1996), which states, “The subdivision control law contemplates that the planning board shall ensure compliance of subdivision plans not only with the zoning by-law, but also with the [subdivision] rules and regulations...” Id.

The May 2009 Plan (in conjunction with the February 2009 Plan) shows that the Subdivision Road will be abandoned and used exclusively for the benefit of Lot 4. Additionally, the May 2009 Plan (in conjunction with the February 2009 Plan) indicates that the Subdivision Road is a portion of John Cottle Road. The May 2009 Plan shows “Existing John Cottle Road” traversing property located to the east of Lot 4, as well as Lots 2, 3, and 4.

The Planning Board’s contention is that the Subdivision Road constitutes a common driveway between Lot 4 and two lots to the south and east of the subdivision. [Note 8] The May 2009 Plan indicates that the driveways that service the two lots to the south and east of the subdivision have access exclusively from a portion of John Cottle Road that is not located within the subdivision. John Cottle Road is a private road and there is nothing in the Bylaw prohibiting more than one driveway intersecting with a private road.

The May 2009 Plan indicates that a portion of the Subdivision Road is to be abandoned between a point on the eastern boundary of Lot 4 and a point approximately thirty feet to the west. The Planning Board argues that at the point on Lot 4 where the Subdivision Road is to be abandoned, there will be created a new way that meanders to the northeast of John Cottle Road (the Subdivision Road) on Lot 4, which links up with the existing driveway servicing the two lots to the south and east of the subdivision. As a result, the Planning Board contends that Lot 4 and the other two lots share a common driveway for a short distance outside of the subdivision before the “common driveway” connects to a portion of John Cottle Road located outside of the subdivision. Even if the Planning Board’s contention is correct, this issue is easily remedied by a condition in the approval of the Modified Subdivision Plan mandating that the Lot 4 driveway cannot connect with the driveways for the other two lots, but must connect with the Modified Subdivision Road. Similarly, a condition could be added mandating that the thirty foot portion of the Subdivision Road on Lot 4 shall not be abandoned and John Cottle Road (the Subdivision Road) shall intersect with the existing driveway on Lot 4. Either, or both, of these conditions would remedy the issue of a common driveway. [Note 9] As a result, I find that denying the Modified Subdivision Plan because of a common driveway is arbitrary and capricious.

B. Dead-End Street in Excess of 500 Feet

Finding 2 of Planning Board Decision 3 states in part,

The proposed relocated road is approximately 850 feet in length ... Allowing a dead-end street in excess of 500 feet in length in addition to the existing subdivision road does not give adequate protection to the safety and convenience of the present and future inhabitants of the Town...

Section 5.1-4 of the Town of West Tisbury Planning Board Rules and Regulations Governing the Subdivision of Land (the “Rules”) states,

Dead-end streets shall not be longer than five hundred feet unless, in the opinion of the Planning Board, a greater length is necessitated by topography or other local conditions.

The Modified Subdivision Road, as proposed, will be approximately 850 feet in length; longer than the 500 feet maximum length allowed in the Rules for a dead-end street. Plaintiff points out that the Subdivision Road (which is to be abandoned) is nearly the exact same length as the Modified Subdivision Road, and as a result argues that the Planning Board acted arbitrarily in denying the Modified Subdivision Plan. Plaintiff also contends that the Modified Subdivision Road is not a dead-end street. The Planning Board counters by arguing that there are no topographic or other local conditions that require the Modified Subdivision Road to be in excess of 500 feet, as required by the Rules, and that the Planning Board never granted a waiver of this Rule. The Planning Board also argues that the Modified Subdivision Road is a dead-end street.

Plaintiff’s contention that the Modified Subdivision Road is not a dead-end street is in error. Plaintiff argues that at its terminus, the Modified Subdivision Road intersects with John Cottle Road, and as such is not a dead-end street. There is no definition of dead-end street in either the Rules or the Bylaw. The Appeals Court articulated the definition of a dead-end street as “a single, continuous stretch of road open at one end and closed at the other ...” See Sparks v. Planning Bd. of Westborough, 2 Mass. App. Ct. 745 , 748 (1974). See also Tassinarri v. Massachusetts Turnpike Authority, 347 Mass. 223 -224 (1964) (noting that a dead-end street is closed at one end and open at another with vehicular access from one end of the dead-end street only). John Cottle Road is a private way that amounts to little more than an unpaved way beyond the terminus of the Subdivision Road. At the point where the Subdivision Road (to be abandoned) ends, John Cottle Road continues across Lots 2, 3, and 4 with the beach as its terminus. Beyond the Subdivision Road, John Cottle Road does not connect to another access road. As a result, I find that the Modified Subdivision Road is a dead-end street.

The Subdivision Road, as shown on the 1993 Plan and approved in Planning Board Decision 1, is longer than 500 feet. Planning Board Decision 1 does not explicitly indicate that the Planning Board granted a waiver of the maximum dead-end street length requirement. A planning board is not required to specify in writing those rules and regulations which it had waived, so long as the record disclosed evidence of an implied, conscious waiver. Meyer v. Planning Board of Westport, 29 Mass. App. Ct. 167 (1990). “In the absence of an express waiver of regulations, a planning board must demonstrate, through conduct reflected in the record, that it purposefully consents to deviations from the regulations.” Id. at 171. “The Board’s [implied waiver], given the shape and topography of the locus, was comfortably in the realm of rational choice and, hence, not contrary to the public interest.” Id. at 167. See also Arrigo v. Planning Board of Franklin, 12 Mass. App. Ct. 802 , 809 (1981).

In the case at bar, Planning Board Decision 1 approved the 1993 Plan that depicted a subdivision road of approximately 850 feet in length. Other than the text of Planning Board Decision 1, the record is void of any evidence relating to Planning Board Decision 1, e.g. meeting minutes or express waivers of the Rules. Planning Board Decision 1 states,

The access roads within the property bounds shall comply with the West Tisbury Rules and Regulations Governing the Subdivision of Land per Sections IV and V. All work done for the roads and turnaround shall be subject to approval in writing of the road inspector.

It was inconsistent for the Planning Board to have approved the 1993 Plan with a condition that there shall be no dead-end street greater than 500 feet (see Section 5.1-4 of the Rules) considering that the 1993 Plan, relied upon by the Planning Board, depicted a dead-end street longer than 500 feet. [Note 10] Despite this inconsistency, the record indicates that Planning Board Decision 1 implicitly waived the 500 foot maximum dead-end street rule. The subdivision was approved in 1993 and the Subdivision Road exists on the ground and has been in use by the property owners within the subdivision. The approval of the 1993 Plan, i.e. Planning Board Decision 1, and the subsequent use of the Subdivision Road for many years is evidence that the Planning Board implicitly and consciously granted a waiver of the dead-end street length requirement for the Subdivision Road.

The Modified Subdivision Road is substantially the same shape and length as the Subdivision Road, as shown on the 1993 Plan. Finding 2 of Planning Board Decision 3 merely states that a “dead-end street in excess of 500 feet in length in addition to the existing subdivision road does not give adequate protection to the safety and convenience of the present and future inhabitants of the Town ...” (emphasis supplied). The only stated reason for this finding is that the Subdivision Road will remain on the ground. The meeting minutes of the three Planning Board hearings prior to Planning Board Decision 2 indicate that neighbors expressed concern about the “parallel roads”, i.e. the existence of both the Subdivision Road and the Modified Subdivision Road. [Note 11]

As discussed, supra, the Subdivision Road will serve as a driveway exclusively for Lot 4. The Subdivision Road is not a common driveway, nor is it appropriate to refer to it as a “parallel road” because it will be a driveway, not a road. Planning Board Decision 3 merely mimics the language in Section 4.5-5 of the Rules (with regards to considerations of public safety and protection) and gives lip service to the Remand Order that required the Planning Board to specifically state the reasons for its denial of the Modified Subdivision Plan in Planning Board Decision 2. The Planning Board points to no evidence, nor is there evidence in the Summary Judgment record, indicating that the Modified Subdivision Road, in conjunction with the Subdivision Road to be used as a driveway, does not give adequate protection to the safety of West Tisbury residents. [Note 12] As a result, I find that denying the Modified Subdivision Plan because the Modified Subdivision Road is greater than 500 feet in length is arbitrary and capricious. [Note 13]

C. Absence of a Cul-de-sac

Finding 3 in Planning Board Decision 3 indicates that the Modified Subdivision Road does not contain a turnaround or a cul-de-sac that has the required radius and dimensions mandated by the Rules. Rule 5.1-4. states,

Dead-end streets shall be provided at the closed end with a turnaround having an outside roadway diameter of at least one hundred feet and a property line diameter of at least one hundred and fifteen feet”. [Note 14]

Plaintiff points out that the Modified Subdivision Road has a similar hammer head shape as does the Subdivision Road, which also did not conform to the turnaround requirements of Rule 5.1-4. The Planning Board argues that non-compliance with Rule 5.1-4 will make it difficult for emergency vehicles to navigate the Modified Subdivision Road, and therefore the Modified Subdivision Road does not provide adequate safety and protection for the present and future residents of West Tisbury. The Planning Board also argues that Plaintiff never received a waiver from this provision of the Rules.

As Plaintiff points out, the closed end of the Modified Subdivision Road has substantially the same shape as the closed end of the Subdivision Road. Conditions 8 and 9 of Planning Board Decision 1 (those pertaining to the $5,000 donation and the approval of the road inspector) indicate that in 1993 there was not a legitimate concern about the ability for emergency vehicles to safely navigate the Subdivision Road. [Note 15] Planning Board Decision 1 contains no other conditions relative to road safety.

The Planning Board first raises the concern that it will be difficult for emergency vehicles to navigate the Modified Subdivision Road when it denied the Modified Subdivision Plan. The record does not indicate that the fire chief was consulted with regards to this finding. In fact, there is no evidence in the record relative to safety issues for the Modified Subdivision Road. It appears that the Planning Board unilaterally and arbitrarily concluded that emergency vehicles would have difficulty navigating the Modified Subdivision Road. [Note 16]

Moreover, as discussed, supra, the Planning Board, in Planning Board Decision 1, was not required to specify in writing the particular provisions of the Rules that it had waived. See Meyer 29 Mass. App. Ct. at 171. The record indicates that Planning Board Decision 1 implicitly waived the requirement that the Subdivision Road’s terminus be a cul-de-sac, in strict compliance with Rule 5.1-4. [Note 17] Planning Board Decision 1 approved the 1993 Plan, which depicted the Subdivision Road heaving a hammerhead shape at the closed end of the road. The approval and use of the Subdivision Road is convincing evidence that Planning Board Decision 1 implicitly and consciously granted a waiver for the diameter and cul-de-sac requirements of Rule 5.1-4. As a result, I find that the Planning Board acted arbitrarily in denying the Modified Subdivision Plan on account of the Modified Subdivision Road not conforming with Rule 5.1-4. [Note 18]

D. Absence of Road Maintenance Agreement:

Finding 4 of Planning Board Decision 3 states in part,

The applicant has not made any provision for the maintenance of the proposed relocated roadway as required by Section 6.1-12 of the Rules ... In the absence of any [road maintenance agreement] for the proposed relocated roadway, the safety and convenience of the present and future inhabitants of the Town ... will not be adequately protected...”

Section 6.1-12 of the Rules require that the developer shall either (a) retain ownership of such roads and make provisions satisfactory to the Town for perpetual maintenance thereof; (b) agree to convey such roads and common lands to an association of lot owners under terms satisfactory to the Planning Board or (c) combination of (a) and (b). Plaintiff argues that it has substantially complied with this requirement and points to the recorded Road Maintenance Agreement for the Subdivision Road. The Planning Board contends that this instrument is irrelevant to the Modified Subdivision Road, and as such Plaintiff has not complied with Section 6.1-12 of the Rules.

The existing Road Maintenance Agreement can easily be modified and duly recorded to be appurtenant to the Modified Subdivision Road. Moreover, Condition 13 of Planning Board Decision 1 states that, “[a] road maintenance agreement shall be established to ensure maintenance of the access road within the property bound and shall be appurtenant to each lot.” There is no reason why the Planning Board could not have included a similar condition to an approval of the Modified Subdivision Plan, [Note 19] or a condition adopting the Road Maintenance Agreement, as established in Planning Board Decision 1. As a result, I find that the Planning Board’s denial of the Modified Subdivision Plan on the grounds that a Road Maintenance Agreement did not exist is arbitrary and unreasonable.

Conclusion:

Section 4.5-5 of the Rules gives the Planning Board discretion to approve, modify and approve, or a disapprove a Definitive Plan. If the Planning Board determines that certain provisions of a plan are detrimental to the health and safety of West Tisbury, the Planning Board may require modification of the plan if feasible remedies exist, i.e. impose reasonable conditions, or otherwise deny approval of the plan.

As a result of the above discussion, I find that there are feasible remedies to each concern expressed in Planning Board Decision 3. If the Planning Board is concerned about parallel roads and makes specific findings in this regard, it may impose a condition that the Subdivision Road may not be used for access for Lot 4. Additionally, Planning Board Decision 3 indicates that the Planning Board was concerned that the hammerhead shape of the Modified Subdivision Road will make it difficult or impossible for emergency vehicles to navigate. The Planning Board may, after making specific findings in this regard, impose a condition to the Modified Subdivision Plan mandating strict compliance with the turn around provisions of Section 5.1-4 of the Rules. Finally, the existing Road Maintenance Agreement shall be applicable to the Modified Subdivision Road. This should mitigate any concerns about the maintenance of the Modified Subdivision Road.

As a result of the foregoing, I REMAND this matter to the Planning Board to issue a new decision in accordance with this Decision.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: April 26, 2011