MISC 125004

November 15, 1988

Bristol, ss.



The action of the Westport Planning Board in approving a definitive plan entitled "Subdivision of Land in Westport, MA Prepared for Frank Long," dated August 3, 1987, by Arthur C. Thompson, Inc. (the "Plan") filed on behalf of Ethyl Gifford [Note 1] was appealed to this Court by the southerly abutter to the land shown on said plan, E. Ernst Meyer, also known as Elizabeth Ernst Meyer. The intervener, Francis Long, is the developer and is the real party in interest so far as the subdivision is concerned. The complaint which was filed pursuant to the provisions of G.L. c. 41, §81BB and c. 185, §1(k) alleges that the Planning Board failed to observe its regulations pertaining to the length of dead end ways and certain other of its rules and regulations, without specificity, and that the Board also gave little weight to the wetlands problem.

A trial was held at the Land Court on June 24, and July 6, 1988 at 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 the plaintiff called as witnesses Katherine Preston, a member of the Planning Board; Ann McMenemy, a biologist employed by an environmental consultant firm; James Whittall, the director of archeology for Early Sites Research Society, and former resident of the neighborhood; Clark Chase, also a resident of Westport who farms the plaintiff's land; E. Ernst Meyer, the plaintiff; Francis Aruda, a member of the Westport Board of Health; and C. Lee Hopkins, a member of the Westport Planning Board. The defendants called Michael Thompson, an employee of the firm of Arthur C. Thompson which prepared the subdivision plan; Joseph Castonguay, a member of the Planning Board; and Robert Stevens, a geologist employed by Goldberg Zaino & Associates.

On all the evidence I find and rule as follows:

1. The rules and regulations of the Planning Board were being reprinted in the late summer of 1987, and the plaintiff was unable to obtain a copy thereof from the Westport town officials prior to the Planning Board hearing. However, the rules and regulations were filed at the Bristol County Registry of Deeds as requi red by G.L. c. 41, §81Q and were available to the public from this source.

2. The minutes of the Planning Board for the regularly scheduled meeting held on August 3, 1987 (Exhibit No. 3) reveal that Mr. Thompson presented the Plan showing a parcel of vacant land situated on the west side of Horseneck Road for review by the Board. The plan showed 13 lots on a 1,600 foot long proposed road. At the hearing it was noted by the Board that engineering and drainage calculations had to be submitted, that the "squared off" cul-de-sac must also be changed and a turn around provided in the middle of the road because of its excessive length. A hearing then was scheduled for September 21, 1987.

3. At the meeting of September 21, 1987 the proponents of the plan, the intervener Long, Mrs. Gifford, and Mr. Long's attorney, were present with Michael Thompson. The plaintiff and her attorney also were at the hearing and raised questions about the plan. The parties expressed their differing views on the wetness of the area where the proponents planned to place the proposed road and discussed the regulations as to the length of a dead end road. At the hearing the issues of the length of the road and the wetlands were discussed by the Board, the parties and their witnesses and counsel. There does not appear to have been a specific exchange of views on the regulations which apply to the underground installation of utilities or as the necessity of showing buildings on adjoining properties.

4. The Conservation Commission reported to the Planning Board prior to the hearing and made the following suggestions:

Where long streaches (sic) of impervious road surface are proposed vegetated swales along the road or retention basins should be used to prevent environmental damage from point-source discharge. This would be appropriate in this particular instance.

Wetland lines as shown on the plan are approximate only and have not been accepted by the Commission. Lots 4 and 5 may have a problem with the setback requirement of the BOH concerning septic systems. The fields are 200+ feet across.

Road location should be moved to cross wetlands at the north property edge as it would lessen the negative impact to the environment.

(Exhibit No. 6).

5. Subsequently, and several months after the Planning Board approval, the Conservation Commission issued an Order of Conditions pursuant to the provisions of G.L. c. 131, §40 which approved the intervener's proposed work subject to sixteen (16) conditions which included requirements for retention areas, wetland replication areas and a wetland crossing, prohibiting road salt and other deicing chemicals, for sloping of the pavement to correct runoff in the road drainage system, for availablility of hay bales and for emergency work (Exhibit No. 12).

6. At the close of the hearing held by the Planning Board on September 21, 1987, the Board unanimously approved the subdivision plan subject to the following modifications and conditions:

1) vegetated swales or retention basins be provided per request of Conservation Commission;

2) the 20' path to the River be eliminated;

3) a street name be given to the proposed road;

4) grease traps be provided in the drainage plans;

5) lots 4 and 5 must be merged;

6) Lots 10 and 11 must be merged;

7) Owner's name be changed to Ethel F. Gifford;

8) an island/bump/culdesac combination be provided in the road just before reaching wetlands.

(See Exhibit Nos. 38 and 5).

7. The standard certificate of approval requires the modifications to be shown on the plan before its endorsement and recording. The plan revised in accordance with the Planning Board requirements was not introduced as an exhibit. However, the so-called "Drainage Study Plan" which was prepared to accompany the notice of intent filed with the Conservation Commission was marked as Chalk D and incorporates the conditions imposed by the Planning Board.

8. The Westport Board of Health, a defendant in this action, made no report to the Planning Board. The locus is not served by a municipal sewer and the proposed homes will require septic systems which must meet the requirements of the Board of Health.

9. The applicable zoning by-law requires a minimum lot size of 60,000 square feet and a frontage of at least 100 feet for a buildable lot, minimum conditions which are met by the plan.

10. The Planning Board was aware of the comments made by the Conservation Commission prior to the approval of the Plan and chose not to adopt them so far as relocating the access road to the north. There was expert testimony that the locus is not of sufficient width to allow for the construction of a road with a loop to meet the requirements of the Board's rules and regulations as to dead end ways and the Conservation Commission's suggestions. There also was testimony at the trial that to construct the road near the northerly boundary of the property would destroy many standing trees and detract from the natural beauty of the site.

11. The applicable provision of the rules and regulations as to the length of a dead end road reads as follows:

IV - A, 4. Dead-End Streets

a. Dead-end streets shall not be longer than five hundred (500) feet unless, in the opinion of the Board, a greater length is necessary because of topography or other local conditions.

12. In addition to the non-compliance with this provision, the plan did not show the buildings and physical features of abutting property within fifty (50) feet of the boundary line as required by III - B, 3k.

13. The Planning Board customarily requires that a turn around be placed in the road with an island where it is not feasible to limit the length of a dead end road. That practice was followed in the present case. The Board considered this an appropriate method to control speed which otherwise may be a problem in a long straight dead end road.

14. The Planning Board was aware at the time of the hearing that a brook ran through the locus and that there were wetlands thereon.

15. The plaintiff also had made an offer to purchase the locus; and she was unsuccessful in the bid which she made therefor.

16. At the close of the evidence counsel for the Board of Health of the Town of Westport, also named as a defendant, moved that the complaint be dismissed as against the Board. The motion was taken under advisement, and it is hereby denied for reasons that will hereafter appear in this decision.

The law is well settled that the plaintiff has the burden of proof in convincing the trier of fact that the Planning Board in approving the definitive subdivision plan exceeded its authority and acted improperly. Strand v. Planning Board of Sudbury, 7 Mass. App. Ct. 935 , 936 (1979). The trial is de novo and the Court is to determine whether the Plan conformed to the Board's rules and regulations and to the recommendations of the Board of Health. Canter v. Planning Board of Westborough, 4 Mass. App. Ct. 306 , 308-309 (1976). See also Strand v. Planning Board of Sudbury, 5 Mass. App. Ct. 18 (1977). The principal attack on the Planning Board's decision made by the plaintiff is the contention that it failed to require that the Plan comply with its rules and regulations. It is, of course, not subject to dispute that the Planning Board, pursuant to the provisions of §81R of c. 41, may waive strict compliance with its rules and regulations if such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law. Caruso v. Planning Board of Revere, 354 Mass. 569 , 572 (1968); Canter v. Planning Board of Westborough, supra, at page 812. The Appeals Court, in Arrigo v. Planning Board of Franklin, 12 Mass. App. Ct. 802 (1981) stated that if consonance with the public interest is a justiciable standard, "it is obviously one that involves a large measure of judgment or discretion. If, in a given case, it is one as to which reasonable minds might in good faith differ, without doubting the reasonableness of the opposing view, the conclusion reached by the Planning Board should be sustained on judicial review." Id. at 809. The Board can decline to apply a regulation or by-law if the application will serve no public purpose and has no rational relation to the public safety, health, morals, welfare, and convenience. Lyman v. Planning Board of Winchester, 352 Mass. 209 , 214 (1967).

In the present case, the Planning Board did not expressly waive any named sections of its rules and regulations, but it is clear that the Board clearly had in mind the regulation relative to the length of a dead end road and specifically provided an alternate method of dealing with the safety aspects of such a street. It is not only express waivers but those implied as well which are sufficient in cases such as this. See Wheatley v. Planning Board of Hingham, 7 Mass. App. Ct. 435 , 450-451 (1979). Hahn v. Planning Board of Stoughton, 24 Mass. App. Ct. 553 , 556 (1987). The traditional reason given for such a regulation is the concern that a disabled car or a fall entree, for example, might block the passage of security vehicles such as ambulances, police cars or fire engines. See Wheatley, supra, at page 451. However convincing (or unconvincing) such an explanation may be there is no doubt that the regulation can be waived under appropriate circumstances and safeguards which the Board ordered.

The plaintiff also complains about the action of the Board of Health which failed to make any recommendations to the Planning Board. It is now clear from Loring Hills Developers Trust v. Planning Board of Salem, 374 Mass. 343 (1978), that the decision of the Board of Health may be reviewed through an appeal from the decision of the Planning Board. Cf. Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 , 173-174 (1977). The appeal taken by the plaintiff in this case, therefore, was an appeal also from the inaction of the Board of Health which by virtue of the provisions of §81U constitutes an implied approval of the plans for purposes of the subdivision control law insofar as they relate to areas within the purview of the Board of Health. It is for this reason that I decline to allow the motion to dismiss the Board since it is only through this appeal that their action can be questioned. There was no evidence, however, from which their implied approval could be set aside. As is the case in all developments without municipal sewerage systems, each lot must meet the requirements for a successful percolation test and must comply with all the applicable provisions of the State Building Code, Title V and the rules and regulations of the Board of Health. Indeed G.L. c. 41, §81U recognizes that where there is no public sewer system, approval of a subdivision plan does not constitute approval of a permit for an individual sewage system or an application therefor.

Both for reasons of concern for appropriate waste disposal and for protection of the wetlands, the Planning Board required in two instances that two lots on the proposed plan be merged. The plaintiff nonetheless has complained about the treatment of the wetlands by the Planning Board and its disregard of the suggestions made by the Conservation Commission. So far as the location of the road is concerned, that is within the ultimate authority of the Planning Board, and it has the final decision as between the town boards on this aspect of the case. The Board recognizes, however, that the requirements of the Conservation Commission also must be met, and the proponents of the plan have done this by obtaining the Order of Conditions pursuant to the provisions of G.L. c. 131, §40.

The plaintiff also argues that the Board should not have approved the Plan since no utilities are shown thereon. The rules and regulations do not specifically require that the utilities be shown, but they do contain provisions relative to their placement below ground. At the trial, witnesses for the defendants testified that usual practice was to consult with the utility company after the Board has reviewed the Plan to obtain the company's advice as to the proper location of the utilities. The procedure followed here, therefore, follows the provisions of V - 22 of the rules and regulations which calls for the Board to insure that the utility companies are notified during the early stages of the proposed subdivision so that the construction and development will be better coordinated. It should be noted that in Miles v. Planning Board of Millbury, 26 Mass. App. Ct. 317 (1988), the Appeals Court has held that the provisions of §81Q of Chapter 41 to the effect that no rules or regulations regarding the construction of ways within a subdivision can impose stricter standards than the municipality requires for its own publicly financed streets and ways applies to the installation of the utilities. The Supreme Judicial Court has recently granted further appellate review in this case so a definitive answer on this interpretation lies ahead. In any event the Board was aware of this provision and impliedly waived it.

The plaintiff also points to the failure of the Plan to show the buildings on the abutting properties within fifty (50) feet of the locus. The rationale for this rule is not clear, but for the purposes of this case I assume it to be a valid rule. On this record I do not know whether there are in fact any such buildings, but the Planning Board was aware of the plaintiff's ownership of the adjoining properties and could have required the addition of this information to the Plan if it had been concerned. I find and rule that this rule and regulation also impliedly was waived. See Hahn v. Planning Board of Stoughton, 24 Mass. App. Ct. 553 , 556.

On all the evidence I therefore find and rule that the subdivision plan as approved by the Board complies with its rules and regulations, as modified by valid waivers and with the implied decision of the Board of Health; I further find and rule that the decision by the Planning Board to approve the plan was in the public interest and not inconsistent with the intent or purposes of the subdivision control law. I also find and rule that the plaintiff has not borne her burden in showing that the Board acted improperly in any material way or that it exceeded its authority.

The intervener filed numerous proposed findings of fact and rulings of law on which I decline to rule specifically since I have made my own extensive findings of fact and rulings of law.

Judgment accordingly.


[Note 1] Mark C. Gifford originally was shown as a co-owner on the plan legend, but a deed of his interest to Mrs. Gifford subsequently was shown to the Planning Board.