BRET ASSOCIATES, INC. vs. MARTIN JOYCE, PAUL M. DILLON, THOMAS J. LINDSAY, WILLIAM J. BEGLEY, TIMOTHY E. GAGE, ROBERT S. LANG, and MARY S. McELROY, as members of the Planning Board of the Town of Weymouth, FRANKLIN FRYER, as Town Clerk of the Town of Weymouth, and the TOWN OF WEYMOUTH.

The issue in this appeal, pursuant to the provisions of General Laws chapter 41, §81BB, for a declaration pursuant to the provisions of G.L. c. 231A, is a narrow one: the propriety of the requirement by the defendant Weymouth Planning Board (the "Planning Board") that the plaintiff put the existing utility services in a way owned by the Town of Weymouth underground as a condition of the approval of the plaintiff's definitive plan (the "Plan"). The narrow issue presently before me has spawned a series of related questions that may be relevant although this action can be decided without ruling on each of them. These in part include consideration of several related problems.

1. The proper interpretation of the Planning Board Rules and Regulations must be decided and a determination made as to their clarity relative to the central issue of the case in the light of the decision in Castle Estates, Inc. v. Park and Planning Board of Medfield, 344 Mass. 329 (1962).

2. If the rules and regulations are clear that the plaintiff must put the services underground, the propriety of requiring that this be done if it is a private way in the light of Miles v. Millbury, 26 Mass. App. Ct. 317 (1988) and if a public way, pursuant to the caveat set forth in North Landers Corp. v. Planning Board of Falmouth, 382 Mass. 432 , 439 (1982) must be determined.

3. A related consideration to be weighed is whether there can be a parcel owned in fee by a municipality and devoted to use as a way which is not a public way.

4. If the answers to any of the foregoing favor the Planning Board, the Court must determine whether the requirement that existing utilities be placed underground is arbitrary and unreasonable under all the circumstances; and finally

5. There is an argument to be weighed that there has been constructive approval of the Plan without any conditions by failure of the Board to file a certificate of the extension of time with the Town Clerk as required by Section 81U of Chapter 41.

A trial was held on August 30 and September 15, 1988 at each day of which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

At the trial Frank LaGrotteria, the Director of Public Works for the Town of Weymouth, Raymond Hanian, one of the principals of the plaintiff, Aldo Barresi, District Supervisor of Field Engineering for Massachusetts Electric Company, and James F. Clark, Jr., Planning Director for the Town of Weymouth, were called as witnesses by the plaintiff, and Brian Currie, Economic Development Planner for the Town, and Paul Dillon, a member of the Planning Board were called as witnesses by the Town. The plaintiff then called Raymond Hanian as a rebuttal witness.

On all the evidence, I find and rule as follows:

1. Libbey Industrial Parkway (now Libbey Parkway) parallels Route 3 (viewed by many as an extension of the Southeast Expressway) in Weymouth between Middle Street on the north and Pleasant Street on the south. For many years Weymouth authorities have sought to have the land abutting thereon developed to increase the Town's taxable base, and over the years the town has made a considerable investment in approving the amenities available to abutting property owners.

2. The saga began in 1959 when the Town built a pumping station near or on Whitman's Pond and constructed a road to it from Pleasant Street for the installation of water pipes and for a roadway. An easement was taken for these purposes by instrument dated May 4, 1959 and recorded with Norfolk Deeds (to which all recording references relate) in Book 3722, Page 502 (Exhibit No. 8). Not long thereafter in 1962 the Town voted to take in fee a fifty foot wide strip of land from Pleasant Street for the purpose of developing an emergency water supply and roadway thereto.

3. The original way in which the Town had an easement was approximately fifteen feet wide with an oil surface. At some point approximately $500,000 was obtained to advance the project by improving access, but delays in plans for area resulted in the moneys being used for other projects.

4. Title to a parcel, adjoining the, locus, by A. Schofield Corporation, et als, was registered in Land Court Registration Case No. 36248. The "B" plan, a subdivision of the original premises, of which the Court takes judicial notice, was endorsed "approval not required'' on behalf of the Planning Board by its then Chairman. It was on some portion of this property that Westinghouse Corporation, or one of its subsidiaries, was said to have constructed a building as part of the industrial program. Several other plans were introduced into evidence bearing a similar endorsement (see Exhibits Nos. 6A -16) some of which were entitled to such an endorsement apart from the status of Libbey Industrial Parkway, but others of which were not unless the plans met the criterion of §81L of chapter 41, that "every lot within the tract so divided has frontage on (a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way". Said section 81L further provides that a division of a tract of land into two or more lots does not constitute a subdivision if the way has been "shown on a plan theretofore approved and endorsed in accordance with the subdivision control law." The Weymouth Town Clerk has certified that Libbey Parkway is maintained and used as a public way (Exhibit No. 10), but its status does not appear on Land Court Plan No. 362488 (Exhibit No. 6E). However, the Weymouth street list shows it as a public way (Exhibit No. 22).

5. In connection with the development of the Westinghouse property, the Town of Weymouth caused electric light poles and wires for electricity and transmission of intelligence by electricity to be installed on the poles. The poles are within the fifty foot parcel owned in fee by the Town except for one close to Pleasant Street which is within land owned by a third party.

6. For reasons unrelated to this action, the project was dormant for some years but ultimately the Town meeting voted an appropriation of $200,000 for the installation of a sanitary sewer and storm drain in the road and $150,000 for the construction of the road, and the road was constructed in the winter and spring of 1985-86. The westerly end of Libbey Parkway close to Middle Street was built thereafter in part, at least, with state funds. Sigma Company has recently dedicated a new building thereon. The easterly end was built without state funds, but the plaintiff contributed thereto by completing part of the work for the sewerage and providing labor for part of the drains and labor and materials for the paving as well as paying $75,000 to other contractors to supplement the Town's funds.

7. In 1982 the principals of the plaintiff became interested in developing land on Libbey Parkway. One of the problems with the attempts to develop locus earlier was a lack of ownership of a large tract along the parkway and a multiplicity of owners of smaller areas. Two of the principals of what became Bret Associates already owned land in the area, and an approach was made to the Weymouth planning department to see whether the planners would be interested in having the plaintiff proceed to acquire a large tract of land on the parkway which might be developed for industrial purposes. After an affirmative reply the plaintiff acquired sixty acres from several owners. The plaintiff's representative met with the planning department from time to time, and was part of a subcommittee which, during the years 1984 and 1985 was attempting on behalf of the Town to develop the area. Simultaneously, the Industrial Development Commission of the Town was working on the problem and was weighing various financial approaches.

8. During one of the meetings between plaintiff and the planning staff, Mr. Clark told representatives of the plaintiff that the Town needed a definitive plan to be prepared so that the engineering data would be available in order to obtain funding for the roadway. The planning staff apparently also believed that the standard form agreement that land owners were being asked to sign in connection with a grant by the Town of an easement to use the road required that a definitive subdivision plan, rather than an ANR plan, be filed with the Planning Board. The agreement and grant of easement from the Town of Weymouth to Bret Associates, Inc., dated February 4, 1988 and recorded on February 20 of that year, provided in subparagraph 3 thereof that:

3. Grantees may, but shall not be required to do so, grade, improve, and pave the Parkway, at their own cost and expense, provided, however, that such improvement and paving comply with the requirements of the Town of Weymouth Planning Board under the provisions of the Subdivision Control Law, Chapter 41, Sections 81L-88GG, as to location, width, construction, design, and specifications, including the installation of sidewalks, landscaping and curbing. . . .

9. The definitive subdivision plan entitled "Libbey Park" (Exhibit No. 1) was filed on April 1, 1985 with the Planning Board, together with a covering letter from Charles F. Arnold Associates (Exhibit No. 25A), the so-called Form C, which is an application for approval of a definitive plan (Exhibit No. 258), and Form E, the certified list of abutters (Exhibit No. 25C). Mr. Arnold, acting on behalf of the plaintiff requested certain waivers from the Board of the provisions of its rules and regulations including a request that the Board waive the requirement for underground utilities. This request was not granted, for in the certificate of approval of a definitive plan, Form C1 (Exhibit No. 15) there is a Condition No. 6 which provides: "[f]inal placement, design and intensity of the street lighting system shall be determined by the Street Lighting Committee, provided that all utility wires are underground."

10. The plaintiff is agreeable to installing all utility connections from the existing poles to the buildings erected or to be erected on its property underground, but it does not wish to remove the existing poles and wires which are in Libbey Parkway and to replace them with an underground installation. Massachusetts Electric Company has a policy by which at the time of the original installation it charges the developer only the difference between the cost of overhead and underground installation, but it refuses to afford any relief in circumstances where the utilities already are in place and are adequate to serve the proposed development. The utility company representative who testified at the trial stated that the present service was 9400 KVA with 13,800 voltage which in his opinion is adequate to serve the buildings contemplated. He further testified that developers would have to pay all charges in dismantling the present system and installing a new system underground for a cost of approximately $600,000 and that the utility would grant no allowance.

11. The Town had in the initial stages of the proposed development of the area engaged Charles E. Maguire Associates to provide an environmental impact report for the Commonwealth of Massachusetts, and this report was prepared and filed on behalf of the Town without the necessity of the plaintiff contributing thereto. In addition to the Sigma Building recently opened at the far end of Libbey Parkway, the Essex Land Corporation has built, or is building, two new buildings at the Pleasant Street end of the Parkway, but it is unclear what the situation is as to the utilities in the road in the latter instance.

12. The Town attempted to obtain funding for the replacement of the utilities underground at the easterly end of Libbey Parkway, but it was unsuccessful. Subsequently, funding was obtained from the Community Development Block Grant Funds and the Massachusetts Department of Public Works for the opposite end of Libbey Parkway. Otherwise, in areas zoned as is the locus, the Town of Weymouth does not install the utilities underground in publicly financed roads. Indeed this very street is an example of this. In fact it is only in residential subdivisions that this practice is found in Weymouth, which is an older Town settled prior to the more recent practice of placing conduits for electricity below ground.

13. A member of the Planning Board who is the Technical Coordinator of Operations for Channel 56 in Boston, gave as his reasons for denial of the plaintiff's request (a) that standards in Weymouth's office industrial parks should be upgraded, (b) the importance of the aesthetics of underground utility installation, and (c) his opinion that underground installation was safer and more reliable, evidence which was in conflict with testimony of the utility company representative that it was easier to remedy problems overhead than those in underground situations. The Planning Board representative also took the position that first class office parks do not have above ground installations in other communities.

14. The rules and regulations of the Planning Board (Exhibit No. 2) provide in Section IV - I that "all utilities shall be placed underground at the time of initial construction." (emphasis supplied).

15. At some time during the controversy the then-Town Counsel ruled that Libbey Parkway was not a public way.

16. In 1987 plaintiff applied for an amendment of the Conditions of Approval to eliminate the requirement as to the utilities and its application was denied. This appeal followed.

17. All the lots shown on the plaintiff's Definitive Plan front on Libbey Parkway, and there are no interior ways to be constructed. The plaintiff has constructed new buildings on its land and retained ownership thereof.

The appellate courts have ruled that a planning board may not require a proponent of a plan to furnish any additional information or assume any burdens other than those that are set forth in its rules and regulations. In Castle Estates, supra, the Supreme Judicial Court held that the planning board regulations must be comprehensive, reasonably definite and carefully drafted so that owners may know in advance what is and may be required of them and what standards and procedures may be applied to them. Reasonable persons may differ as to the compliance with the standards (compare the decision of the Appeals Court in North Landers Corp. v. Planning Board of Falmouth, 9 Mass. App. Ct. 193 (1980) with that of the Supreme Judicial Court at 382 Mass. 432 (1981). Applying the Castle Estates standard to the regulation of the Weymouth Planning Board relative to the underground placement of utilities on the facts of this appeal, it is apparent to me that the regulation is intended to apply only to the original layout of a subdivision. In the present case the Town of Weymouth arranged to have the utilities installed above ground at the time of the construction on adjoining property of a new building. This was the initial construction to which the regulation applies and in most cases where there is a true subdivision there would be no doubt that the reference in the regulation is to the utilities to be installed by the developer on the lots within the subdivision when streets are laid out and built. The case before us is unique in that all lots front on Libbey Park way and that, therefore, there may not even be a subdivision if in fact the roadway is a public way. The regulation obviously is intended to apply to a way interior to the division of the land onto lots and not to a way placed as is this street. The installation to which the regulation applies must be to the initial provision of utility services, at least in the circumstances here.

In the present case I find and rule that the utilities have already been installed in land owned by the Town of Weymouth (or by a third party) and that under the Castle Estates doctrine it is clear that the landowner may not now be required to dismantle the present service and to install it underground. Accordingly, the condition imposed by the planning board is without its stated rules and regulations and is of no force and effect. Moreover, there would be a serious question as to whether a landowner properly could be required to make improvements within a way owned by a third party or on land of an abutter who is a stranger to the proceedings. It is possible that under certain circumstances the private party may be required to make improvements in a public way to secure planning board approval. See, for example, Perry v. Planning Board of Nantucket, 15 Mass. App. Ct. 144 (1983). Cf. however, North Landers, supra. However, in view of the costs of installation and the opinion of the relevant utility representatives that the present service is entirely adequate, it would be arbitrary and unreasonable for the Board to require the installation of underground utilities if the Town of Weymouth at the time it first constructed Libbey Parkway did not believe this to be necessary.

The exact status of Libbey Parkway has been a matter of some dispute over the years, and the unusual background which appears in my findings has led to uncertainty on this score. It seems to me that when the language of the Town meeting votes and of the taking are considered, there can be no question that Libbey Parkway indeed is a public way within the rules laid down in Fenn v. Middleborough, 7 Mass. App. Ct. 80 (1979). Town monies have been extended on the improvement of the way as well as those of the Commonwealth of Massachusetts, appropriate actions have been taken pursuant to authorization by the Town meeting of the taking first of an easement and subsequently of the fee, and by the Selectmen. Services for water and sewer have been installed and the road constructed primarily by the Town but with the cooperation of the plaintiff in providing engineering expertise and additional construction monies. Regular Weymouth street rights are posted at the Pleasant Street end. Since I find Libbey Parkway to be a public way, the question posed but not answered by North Landers, supra, as to the ability of the Planning Board to require improvements in a public way, would be presented by the Planning Board's condition. If it is not a public way, then the approach evidenced by the recent Miles decision would be in point. However, in the view that I have taken in this case as to the proper construction of the rules and regulations, I need not reach resolution of this issue nor need I decide whether the plan in any event was constructively approved by the failure of the Board to file one of the extensions with the Town Clerk. Finally, I have not considered it necessary to discuss the propriety of requiring a subdivision, rather than an ANR plan, to be filed. That issue may well have been waived but in any event, need not now be reached.

On all the evidence, therefore, I find and rule that the condition imposed by the Planning Board for the underground installation of the utilities does not come within the scope of its rules and regulations and, therefore, is of no force and effect; that even if the rules and regulations could be read in such a way as to require the dismantling and installation of the existing utility service on Libbey Parkway underground, it would be arbitrary and unreasonable to require the expenditure of monies to accomplish this; that the certificate of approval of the Planning Board must be amended by deleting therefrom Condition No. 6; and that the Board is to file no more than twenty days after the entry of judgment herein an amended certificate with the Town Clerk setting forth the other conditions to its approval but eliminating therefrom that relative to underground installation of utilities.

Judgment accordingly.