MISC 122857

January 21, 1988

Worcester, ss.



In this appeal, pursuant to the provisions of G.L. c. 41, §81BB, from the denial by the Millbury Planning Board of approval of a definitive subdivision plan filed on behalf of the plaintiff, Francis J. Castagnetti, Trustee of the Clearview Realty Trust, the principal question for decision is whether a planning board properly can deny approval on the sole ground that an abutting public way is inadequate. Two subsidiary questions are presented as to whether the Rules and Regulations of the Millbury Planning Board clearly inform those submitting plans that the adequacy of the public way may be an issue and the validity of the Board's decision as framed.

There also is a Worcester Superior Court Case, No. 87-0612, Miles v. Philip Dumas, et al, on which I sat by designation, wherein an abutter appealed the Planning Board's decision on the ground that the Board's decision was too narrowly based and that reasons other than the inadequacy of the public way should have formed a basis for disapproving the plan. In the Superior Court action the present plaintiff was allowed to intervene and on his motion the case was dismissed on the authority of Prudential Insurance Co. of America v. Board of Appeals of Westwood, 18 Mass. App. Ct. 632 (1984), it appearing to the Court that Miles was not a party aggrieved. That decision has been appealed.

A trial was held at the Land Court on November 13, 1987 at which a stenographer was appointed to record and transcribe the evidence. Fifteen exhibits were introduced into evidence, and three Chalks were filed for the assistance of the Court, all of which are incorporated herein for the purpose of any appeal. The plaintiff called two expert witnesses, Andrew Liston, a civil engineer and land surveyor and president and chief executive officer of Thompson-Liston Associates, Inc., and Robert A. Belknap, a traffic engineer; he also called Christopher Nelson, the Millbury town planner. The defendant Planning Board called Joseph Chase, the Millbury highway surveyor, Arthur Moore and Anna Lewandowsky, both members of the Planning Board.

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

1. The plaintiff filed with the Millbury Town Clerk on October 31, 1986 the so-called Forms C, D and E (Exhibit No. 1) for approval of a definitive subdivision plan entitled "Clearview Estates in Millbury, Massachusetts Owned and Developed by: Clearview Realty Trust, Francis J. Castagnetti, Trustee," dated October 22, 1986 by Thompson-Liston Associates, Inc., consisting of 27 sheets (Exhibit No. 2).

2. The plaintiff subsequently filed revisions thereto, the latest set of which, as amended through February 25, 1987, is Exhibit No. 3.

3. The definitive plan contemplates a subdivision comprised of 113 lots and six private ways within the development. Two of such ways run from the subdivision into Park Hill Avenue, the public way on which the development fronts. The total area of the site on which the proposed development is to be located is 130 acres, and it has approximately one thousand six hundred sixty (1660) feet of frontage on the public way, Park Hill Avenue. The plaintiff is planning to erect two hundred twenty-six (226) duplex homes as permitted by the zoning by-law.

4. The public hearing pursuant to the statute (G.L. c. 41, §81T) was held on February 26, 1987 at which concern was expressed as to whether Park Hill Avenue was adequate to carry the traffic to be generated by Clearview Estates.

5. The plaintiff, based upon recommendations of his traffic consultant, Rizzo Associates, Inc. (Exhibit Nos. 8 and 10), proposed certain mitigation measures to alleviate the Board's concerns, but the Board took no official action on these (Exhibit No. 4, p. 8). They included the following:

a) At the intersection of Park Hill Avenue with another public way, Martin Street, about 1500 feet southerly of the plaintiff's land, the striping of the roadways with double yellow lines for 100 to 150 feet in each direction from the intersection.

b) The installation of a stop sign as far to the south as possible on Park Hill Avenue at its intersection with Martin Street for cars proceeding in a southerly direction and the possible installation of a flashing yellow light in the area.

c) The construction of sidewalks on the plaintiff's land abutting Park Hill Avenue and the granting of an easement to the Town of Millbury to maintain them.

d) Restriping of the intersection of Route 20 and Park Hill Avenue to provide for a clearly delineated travel lane.

6. Park Hill Avenue is a public way running roughly north and south from the City of Worcester where it affords access north of the Massachusetts Turnpike to Route 20 and downtown Worcester, and in the opposite direction proceeds southerly by the site of the proposed development to its intersection with Martin Street where it turns in a westerly direction and runs to Massachusetts Route 146. Traffic proceeding up Martin Street has to turn sharply to the right to proceed in the direction of Worcester up Park Hill Avenue, or alternatively crosses the path of traffic coming down Park Hill Avenue to go toward Route 146. According to the Millbury highway surveyor, Mr. Chase, there are on average at least two or three accidents at the intersection each year in which speed combines with grades and icy conditions caused by poor drainage to cause vehicles to fail to make the corner. An open drainage ditch parallels Park Hill Avenue for at least part of the distance from the end of the plaintiff's property to the Martin Street intersection, brush grows freely along the shoulder requiring frequent maintenance, and at least one house is built so close to the road as to interfere with visibility.

7. An official layout of Park Hill Avenue has not been located. It is a paved road approximately twenty to twenty-five feet in width as constructed. It is difficult for a car and a larger vehicle such as a truck or bus to pass, and the Massachusetts Department of Public Works is said to have recently banned truck traffic from both Martin Street and Park Hill Avenue. Park Hill Avenue traverses generally hilly terrain and has a steep grade as it descends to its intersection with Martin Street.

8. The high school is located on Martin Street, and students walking to and from school along Park Hill Avenue are somewhat at risk at present and may be increasingly so due to increased traffic generated by the plaintiff's development unless some way can be found to construct a sidewalk along the roadway where there are presently open drainage ditches which particularly restrict the shoulder on the hill and near the intersection with Martin Street.

9. The plaintiff's traffic expert, Mr. Belknap, testified as to additional vehicular trips which might be generated by the development. He calculated that the 226 duplex units contemplated would generate 1,718 daily trips per unit. The existing daily counts for Park Hill Avenue he found to be from 950 to 1,000 vehicles per day. Thus he expected a daily trip figure of about 2,700 vehicles for a roadway which he estimated to have an hourly capacity of 2,000 vehicles per hour. The proposed development he projected to generate morning peak of 136 trips (32 in and 104 out) and an evening peak total of 176 trips (113 in and 63 out).

10. Between the locus and the Worcester city line there is a small cluster of homes where the occupants are accustomed to parking on each side of Park Hill Avenue, a problem for the Town Planner, but not a factor which should impede the plaintiff's plans.

11. Rizzo Associates, Inc. prepared traffic analyses for presentation to the defendant on behalf of the plaintiff. The original report (Exhibit No. 8, see also Exhibit No. 9), considered existing conditions at five intersections, only two of which related to Park Hill Avenue, of which one was in Millbury. The recommendations made in the report did not relate to the latter. A subsequent report to Mr. Nelson dated January 12, 1987 (Exhibit No. 10) did evaluate the Park Hill Avenue/Martin Street intersection which emphasized the low volume of present traffic, the four accidents occuring between March and November of 1986 (two of which involved single cars travelling at excessive speeds) and suggested as mitigations, yellow striping and a stop sign. The plaintiff's expert witness, Robert Belknap, now has his own firm, but he previously worked for Rizzo Associates, Inc. and supervised their reports. He testified that the capacity of Park Hill Avenue easily could handle the expected trip generation. The paved surface of the public way is twenty to twenty-five feet wide, varying along its entire length, and is winding in some areas. In his opinion the proposed subdivision would not strain the capacity of the road. The posted speed now is 30 miles per hour and north of the site near the Massachusetts Turnpike it was suggested that the maximum speed should be decreased to 25 miles per hour. The Board engaged Central Massachusetts Regional Planning Commission to prepare a "Traffic Impact Analysis" which was substantially in accordance with that of the plaintiff (Exhibit No. 11). The Town safety officer also reported by letter to the Town Planner as did the highway surveyor, and also, of course, the Town Planner reported to the Board (Exhibits Nos. 12 to 15, inclusive).

12. By decision dated February 27, 1987 the Planning Board disapproved the definitive plan (Exhibit No. 5) for the following abbreviated reason:

The Planning Board determined, under the authority granted by Section 1.01, and Section 7.02, 3c, that it can be reasonably assumed that Park Hill Avenue can not safely provide access for the proposed subdivision.

13. Section 1.01 of the Board's subdivision rules and regulations (Exhibit No. 7) referred to in the decision follows the language of Section 81M of G.L. c. 41. [Note 1] More specifically the fifth paragraph of section 7.02, 3c, reads as follows:

The Board may disapprove a plan where it determines that dangerous traffic conditions may result from inadequacy of the proposed access or of the proposed ways within the subdivision or of any of the ways adjacent to or providing access to the subdivision.

It has long been established that judicial review of an appeal under G.L. c. 41, §81BB, is de novo, wherein the Court must make its own findings of fact in order to determine the validity of the Planning Board's decision. Mac-Rich Realty Constr., Inc. v. Planning Board of Southborough, 4 Mass. App. Ct. 79 , 81 (1976) citing Rettig v. Planning Board of Rowley, 332 Mass. 476 , 479 (1955). The review is limited to the reasons for disapproval of the subdivision plan stated by the planning board. Canter v. Planning Board of Westborough, 4 Mass. App. Ct. 306 , 307 (1976); Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). The Planning Board here gave as its sole reason for disapproving the plan "that it can be reasonably assumed that Park Hill Avenue can not safely provide access for the proposed subdivision".

The Massachusetts appellate courts have never held that a planning board may disapprove a subdivision plan solely because of the inadequacy of the adjoining public way. In North Landers Corp. v. Planning Board of Falmouth, 382 Mass. 432 (1981) the Court discussed the question at length with an extensive review of the authorities within and without the Commonwealth. There are cases like Canter, 4 Mass. App. Ct. at 309-310, where the issue was raised but not decided, because the planning board regulations did not put the developer on notice that the adequacy of the public way was an issue. In Canter, at page 309, Justice Armstrong wrote:

We do not reach, therefore, the principal issue argued before us - namely, whether the planning board has the power to disapprove a subdivision plan due to traffic problems and access problems caused not by any inadequacy of the ways set out on the subdivision plan, but rather by inadequacies in the public ways adjacent to or providing access to the proposed development. We only point out that we do not regard that issue as necessarily having been concluded by such cases as Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass. at 152-156, and Mac-Rich Realty Constr. Inc. v. Planning Bd. of Southborough, ante, at 84, which apply in other contexts the principle that a planning board should not disapprove a plan on the basis of inadequacies in utility or municipal services outside the proposed subdivision. The language of § 81M could be read to suggest that a developer may be required by appropriate planning board regulations to take into account deficiencies in "adjacent public ways," and the concept of "adequate access" may itself involve consideration of the adequacy of connecting ways. Compare United Reis Homes, Inc. v. Planning Bd. of Natick, 359 Mass. at 625. See also Rounds v. Board of Water & Sewer Commrs. of Wilmington, 347 Mass. 40 , 46-47 (1964).

After Canter the question of the nature of adjacent public ways again was raised. In "Approval Not Required" cases under section 81P of chapter 41, for example, it has been held that the condition of the public way adjacent to the site is relevant on the question as to whether a plan shows a subdivision if all lots therein front on a public way. See, e.g., Perry v. Planning Board of Nantucket, 15 Mass. App. Ct. 144 (1983).

It was in North Landers, 382 Mass. 432 (1981), however, that the thorny issue of disapproval of a definitive plan solely because of the inadequacy of an adjacent public way was raised but not decided. The Superior Court, the Appeals Court and the Supreme Judicial Court all had considered the disapproval of a subdivision which abutted on Sam Turner Road, a public way, to which there was but a single access road through the eastern neck of the subdivision. The Superior Court judge did not rule that inadequacy of Sam Turner Road alone would be a valid basis of disapproval, but he considered it together with the inadequacy of the interior access road out to the public way. The Supreme Judicial Court therefore was careful to point out that it was not deciding "whether inadequacy of the public way alone would justify disapproval." Id. at 437, n. 6. The Court then went on to review the rules and regulations of the Planning Board in the light of the standards established in Castle Estates, Inc. v. Park and Planning Board of Medfield, 344 Mass. 329 (1962). It disagreed with the Appeals Court and concluded that the Falmouth regulations met the Castle Estates test. Id. at 439. Finally, the Supreme Judicial Court reviewed the Board's decision and found that its "statement of reasons for its decision falls seriously short of the statement 'in detail' required by G.L. c. 41, §81U". [Note 2] Id. at 445. The Court then vacated the Superior Court decision and remanded to that Court with instructions it was to direct the Planning Board of Falmouth to provide a detailed statement of the reasons for disapproval of the definitive plan.

The plaintiffs argue that the decision of the Planning Board does not meet statutory requirements, that Planning Board could not validly disapprove a plan solely because of factors without the subdivision, that if the Board was entitled to do so, its rules and regulations did not fairly give notice of this requirement and finally that with the mitigation for which the plaintiff is willing to pay the plan in any event should have been approved.

Although North Landers in fact does not so decide and the language therein on the central point of this action is dicta, it appears that the Supreme Judicial Court may decide in an appropriate case that inadequacy of an adjoining public way is sufficient to justify disapproval. This doctrine seems harsh as applied to the circumstances presented here where zoning authorizes the proposed use, the public way is within the control of the municipal authorities and the plaintiff has offered to mitigate the inadequacies of the public way. It is impossible, however, from the brief statement of the reason for disapproval to evaluate the legal sufficiency of the grounds for the Board's decision. The finding is framed improperly in the language of a presumption rather than in the context of facts found. The decision fails to find that the way in fact is inadequate and if so, in what respects it does not meet the statutory standards. In addition, it does not deal at all with mitigation or afford the plaintiff any guidelines as to how he now should proceed.

I agree with the, plaintiff that the rules and regulations of the Board are not precise in the area of adequacy of abutting public ways. Taken alone they might well violate the Castle Estates standard that they must be neither too vague nor too general to inform owners about the standards which they must meet. In the present case the plaintiff, however, had interpreted the rules and regulations correctly, had secured a viable traffic study and had responded to the Board's concerns as to the adequacy of Park Hill Avenue for the intended use. There would seem therefore no reason at this juncture of the appeal to invalidate the section of the regulations upon which the Board relies.

On all the evidence, I find and rule that (a) the decision of the board does not comply with the requirements of said section 81U as it fails to state in detail the grounds on which it is based; (b) the action of the Board is annulled; and (c) the Board is to hold a public hearing on the plan within thirty days of the date of the judgment and to take final actions within forty-five days from the date of the judgment in a manner consistent with the applicable rules and regulations and with this opinion. The Land Court shall retain jurisdiction over the case pending final action by the Board.

Judgment accordingly.


[Note 1] G.L. c. 41, §81M reads in part as follows:

The powers of a planning board and of a board of appeal under the subdivision control law 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 lessening congestion in such ways and in the adjacent public ways; 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 insuring compliance with the applicable zoning ordinances or by-laws; for securing adequate provision for water, sewerage, drainage, underground utility services, fire, police, and other similar municipal equipment, and street lighting and other requirements where necessary in a subdivision; and for coordinating the ways in a subdivision with each other and with the public ways in the city or town in which it is located and with the ways in neighboring subdivisions. It is the intent of the subdivision control law that any subdivision plan filed with the planning board shall receive the approval of such board if said plan conforms to the recommendation of the board of health and to the reasonable rules and regulations of the planning board pertaining to subdivisions of land; provided, however, that such board may, when appropriate, waive, as provided for in section eighty-one R, such portions of the rules and regula­ tions as is deemed advisable. (1953, 674; 1957, 265; 1969, 884, §2.)

[Note 2] G. L. c. 41, §81U reads in pertinent part as it did at the time of North Landers, i.e., "After the hearing required by section eighty-one T ... the planning board shall approve, or, if such plan does not comply with the subdivision control law or the rules and regulations of the planning board or the recommendations of the health board or officer, shall modify and approve or shall disapprove such plan. In the event of disapproval, the planning board shall state in detail wherein the plan does not conform to the rules and regulations of the planning board or to the recommendations of the health board or officer and shall revoke its disapproval and approve a plan which, as amended, conforms to such rules and regulations or recom­ mendations" (emphasis supplied).