J & C HOMES, INC. vs. HENRY S. MILLER, HAINES H. DANFORTH, DOUGLAS L. JAMES, JOSEPH C. SKINNER and EDNA B. WHITE, as they are members of and constitute the PLANNING BOARD OF GROTON.

The Plaintiff herein, J & C Homes, Inc. ("J & C"), is the owner of an undeveloped tract of land ("locus") in Groton, Massachusetts, consisting of approximately 40 acres. By this action, J & C appeals pursuant to the provisions of G.L. c. 41, §81BB from a decision of the Defendant, Planning Board of Groton ("Board"), dated May 22, 1980, denying its application for approval of a definitive subdivision plan (Exhibit No. 2) of the locus, entitled "Coachmans Estates II", dated November 1, 1976 ("Original Plan") and revised on November 27, 1979 ("Modified Plan"), and later on March 27, 1980 ("Final Modified Plan").

The case was transferred from Middlesex Superior Court to the Land Court on March 17, 1987. Thereafter, a trial was held on April 25 and April 26, 1988 at which times a stenographer was appointed to record and transcribe the testimony. Counsel stipulated to the admission of seven of the thirty-one exhibits introduced into evidence and to certain facts which are set forth below. Ten chalks were also presented to assist the Court. All exhibits and chalks have been incorporated herein for the purpose of any appeal. The Court viewed the locus in the presence of counsel on April 26, 1988.

On all of the evidence, I find the following facts:

1. The locus is situated in the "R-A Residential - Agricultural District", as defined in Section V-A of the Groton Zoning By-laws ("By-laws") (Exhibit No. 3). The entire tract is comprised of irregular and steep hills, as well as ridges and deep gullies. It is not situated within a sewered area nor is it near a public water supply. Accordingly, development of the locus as proposed will require extensive excavation and the construction of individual wells and subsurface sewage disposal systems to service the lots within the subdivision.

2. On December 22, 1976, J & C submitted its Original Plan of the proposed subdivision to the Board. Such plan depicted a three lot subdivision.

3. The Board's review of J & C's Plans was conducted in accordance with the Groton subdivision rules and regulations ("Regulations") (Exhibit No. 1) adopted on July 26, 1963.

4. A copy of the Original Plan was duly filed with the Groton Board of Health ("Board of Health") and, by letter dated March 15, 1977 (Exhibit No. 22), such Board reported to the Planning Board that the three parcels, numbered Lots 31, 32 and 33 on the Original Plan, were suitable for subsurface sewage disposal.

5. On March 26, 1977, the Board unanimously approved J & C's application, subject to its compliance with certain conditions to be, and which were, imposed by the Board at a later date. J & C duly appealed this decision on April 14, 1977 pursuant to the provisions of G.L. c. 41, §81BB. Thereafter on July 17, 1979, the Massachusetts Appeals Court held that the Board's "conditional approval" of J & C's application was insufficient under the Open Meeting law, G.L. c. 39, §23B, as the Board subsequently met at a private session to determine those conditions which were so imposed on J & C. Accordingly, the matter was remanded to the Board. See J. & C. Homes, Inc., et al v. Planning Board of Groton, 8 Mass. App. Ct. 123 , 125 (1979).

6. Following the remand, the Board reconsidered J & C's application. Bruce L. Ey ("Mr. Ey"), a Registered Professional Engineer, was retained by the Board to review J & C's Original Plan.

7. By letters addressed to the Board, dated October 9, 1979 (Exhibit No. 7), October 12, 1979 (Exhibit No. 8) and November 8, 1979 (Exhibit No. 10), Mr. Ey reported that the Board should request additional information from J & C as to soil and drainage conditions, number of house lots and dwelling units thereupon, changes in topography, traffic impact, potable water supply and location of septic facilities, wells, trees and houses.

8. In response to the Board's recommendations, J & C submitted its Modified Plan, depicting 29 lots, to the Board on November 29, 1979. Accordingly, Mr. Ey reviewed the Modified Plan, approved of the drainage calculations implemented therein and concluded that only a small increase in surface water run off would ensue from development of the locus. He further noted that, although boring tests indicated there to be suitable soil for subsurface sewage disposal, Boring B-11 (Exhibit No. 48) indicated excavation below ground water level. He recommended that further boring tests be performed and that the date of all such tests be submitted.

9. On May 7, 1980, J & C submitted its Final Modified Plan, which is the subject of this appeal, to the Boa rd. The Board of Health acknowledged receipt of such plan by letter (Exhibit No. 18) addressed to the Board, dated May 19, 1980, and noted therein that the proposed subdivision would require the removal of approximately 482 ,000 cubic yards of material. Thereafter, on May 22, 1980, the Board notified J & C (Exhibit No. 20) that its Final Modified Plan failed to adequately address matters of subsurface sewage disposal, grading and topography.

10. On May 22, 1980, the Board voted unanimously to deny J & C's application for subdivision approval, citing the Final Modified Plan's failure to comply with some ten sections of the Regulations (Exhibit No. 5). Specifically, the Board stated that J & C failed to provide sufficient information under the following Regulations:

1.) Section V-A-1

Soil and Drainage. No land shall be subdivided for residential use, if after investigation, the Board of Health determines that it cannot be used for building purposes without danger to health or safety. The Planning Board may, in particular instances, require satisfactory evidence that soil conditions and natural drainage are suitable for the proposed subdivision from the point of view of sanitation and public health.

2.) Section V-B-2-k

The Definitive Plan shall contain park or open areas suitably located for conservation, playground or recreation purposes within a subdivision, if any.

3.) Section IV-B-2-1

The Definitive Plan shall contain proposed storm drainage of land, including existing natural waterways and the proposed disposition of water from the proposed subdivision to adequate natural drainage channels or artificial means of disposal thereof.

4.) Section IV-B-2-q

The Definitive Plan shall contain area claimed as "Buildable Land" and approximate proposed location of main building on each lot to comply with Zoning By-Law, whenever uncertainty exists or upon the request of the Board, or Board of Health.

5.) Section IV-B-3-b

The Definitive Plan shall be accompanied by data and copies of proposed arrangements for water supply, sewerage and sewage disposal including all appurtenances, as required by the Board of Health.

6.) Section IV-B-3-c

Plans and profiles of development shall show all provisions made for proper drainage of the area, including location and size of drain lines, catch basins, culverts, etc.

7.) Section IV-B-4-a

At the time of filing of the Definitive Plan, the applicant shall stake all proposed lots and mark proposed lot numbers on said lots to facilitate review of the Definitive Plan by the appropriate authorities.

8.) Section IV-B-2-n

The Definitive Plan shall contain location and species of proposed street trees and/or individual trees or wooded areas to be retained within forty (40) feet of the sidelines of each street.

The Board further alleged that the major topographic changes proposed by J & C violated the following Regulations:

9.) Section V-A-2

Due regard shall be shown for all natural features, such as large trees, watercourses, boulders or rock outcrops, as well as for scenic points, historic points, and similar community assets, which, if preserved, will add attractiveness and value to the property.

10.) Section V-C-1-a

All streets in the subdivision shall be designed so that, in the opinion of the Board, they will provide safe vehicular travel and natural drainage with no drainage pockets, and so that they are adjusted to the topography and provide the minimum number of intersections with major streets.

The party appealing a decision of the Planning Board pursuant to G.L. c. 41, §81BB bears the burden of proving to the trier of fact that such decision was improper and beyond the scope of the Board's authority. Strand v. Planning Board of Sudbury, 7 Mass. App. Ct. 935 , 936 (1979) ; Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977) ; Mac-Rich Realty Construction v. Planning Board of Southborough, 4 Mass. App. Ct. 79 , 83 (1976). In hearing and deciding appeals under section 81BB, the duties of the Court are to conduct a hearing de novo, find the relevant facts and to confine its review to the reasons stated by the Planning Board for its disaproval of the subdivision plan. Fairbairn at 173; Mac-Rich at 81; Canter v. Planning Board of Westborough, 4 Mass. App. Ct. 306 , 307 (1976). A finding by the Court that any one of the substantial reasons propounded by the Board for its denial of subdivision approval is a valid reason will warrant a determination that the Board's action be affirmed. Mac-Rich at 80-81. The Court herein rules that inasmuch as the Board has withheld subdivision approval based on at least one legally tenable ground, its denial must be sustained.

SUFFICIENCY OF BOARD'S REASONS FOR DENIAL OF PLAN

A.) Soil and Drainage Considerations Under Sections V-A-1, IV-B -2-1 and IV-B-3-c

J & C's Definitive Plan shows excavations of up to thirty feet in certain areas. Specifically, the proposed subdivision requires the removal of approximately 482,000 cubic yards of earth and drastic alterations in the site's natural topography. Despite the obvious magnitude of such excavation, the Plan addresses only the matter of increased surface water run-off after development. There is scant information provided as to the serious problem of post-development ground water break out. (See Exhibit 4A). Accordingly, as such information on existing and proposed soil and drainage conditions is essential to the Board's competent evaluation of J & C's Plan, the Board did not exceed its given authority in withholding subdivision approval from the Plan due to its noncompliance with section V-A-1 of the Regulations. Loring Hills Developers Trust v. Planning Board of Salem, 374 Mass. 343 , 351, 352 (1978) citing United-Reis Homes, Inc. v. Planning Board of Natick, 359 Mass. 621 , 623-624 (1971). Similarly, the Board's denial was properly based upon J & C's noncompliance with section IV-B-2-1 of the Regulations, which requires the developer to provide sufficient information relative to the prevention of any adverse impact from the proposed storm drainage system on property situated outside the subdivision's boundaries. Vitale v. Planning Board of Newburyport, 10 Mass. App. Ct. 483 , 485 (1980); United-Reis at 625. Conversely, however, that basis of the Board's denial which is rooted in J & C's alleged failure to provide sufficient information as to proposed provisions for drainage under section IV-B-3-c of the Regulations must fail. The Plan and Profiles submitted by J & C evidence compliance with this regulation insofar as they depict the size and location of drain lines and similar facilities (Exhibit No.1, Sheets Nos. 2 of 7, 3 of 7, 4 of 7 and 5 of 7).

B.) Water Supply, Sewerage and Sewage Disposal Considerations Under Section IV-B-3-b

General and reasonable Planning Board regulations which require the developer to show suitable arrangements for servicing the utility and water needs of the subdivision have been upheld. Rounds v. Board of Water and Sewer Commissioners, 347 Mass. 40 , 46 (1964); Wheatley v. Planning Board of Hingham, 7 Mass. App. Ct. 435 , 439-440 (1979). However, health questions with respect to the disposal of sewage in a subdivision which is not connected to municipal sewer services are the exclusive domain of the Board of Health. Fairbairn at 176.

Regulation IV-B-3-b requires the Definitive Plan to include proposed arrangements for water supply, sewerage and sewage disposal as required by the Board of Health. In the instant case, neither of the communications between the Planning Board and the Board of Health with respect to J & C's Plan included requests for water supply data. Furthermore, the only reference such Board ever made to sewage disposal matters was by its letter of March 15, 1977 (Exhibit No. 22) wherein it approved J & C's proposed arrangements for subsurface sewage disposal as shown on the Original Plan. The Board of Health subsequently failed to report on such arrangements as exhibited on J & C's Modified and Final Modified Plans which both depicted 29 lots. Consequently, the Board of Health's failure to file such a report amounted to its approval of J & C's Plans under G.L. c. 41, §81U. Accordingly, the Planning Board overstepped the bounds of its authority in basing its denial of subdivision approval on J & C's noncompliance with section IV-B-3-b.

C.) Parks, Open Areas, and Trees as Required Under Section V-B-2-k and IV-B-2-n

Before approving a definitive plan, a Planning Board may require such plan to show a park or parks suitably located for playground or recreation purposes. G.L. c. 41, §81U. Accordingly, section V-B-2-k of the Regulations provides in pertinent part that:

The Definitive Plan shall contain park or open areas . . . within the subdivision if any (emphas is supplied).

The word "shall" in the regulation, standing alone, makes the developer's compliance therewith mandatory, however, the presence of the words "if any" at the end renders such compliance directory. The regulation is thus not reasonably definite so as to give the developer advance notice of what is required of him and what standards and procedures will apply to him. Mac-Rich at 82 citing Castle Estates, Inc. v. Park and Planning Board of Medfield, 344 Mass. 329 , 334 (1962). Similarly, section IV-B-2-n imposes the rather broad requirement that the developer's plan depict the location and species of street and individual trees, as well as wooded areas, to be retained within 40 feet of the street sidelines. While the requirement as to the showing of "wooded areas" is reasonable, the requirement as to specific trees presents difficulty. The regulations is phrased, "street trees and/or individual trees . . . to be retained." A reasonable interpretation of such regulation leads the developer to believe that he may elect to retain none, some or all of such natural features on the site. The reality of the situation, however, is that should the developer decide to retain all of the trees within 40 feet of the street sidelines, he is presented with the potentially overwhelming task of showing the location and species of countless trees, irrespective of size, age and the like. Alternatively, should he choose to retain few, if any, of these trees, he runs the risk of his action being challenged thereafter by the Board, Tree Warden, environmental and conservation authorities, or others of similar authority. In short, the regulation is too vague and general to sufficiently inform the developer about the standards which he must meet in retaining or removing such trees. Castle Estates at 334; Chira v. Planning Board of Tisbury, 3 Mass. App. Ct. 433 , 438 (1975).

The Board therefore acted improperly in basing its denial of subdivision approval on J & C's noncompliance with sections V-B-2-k and IV-B-2-n of the Regulations.

D.) Buildable Land and Proposed Lots Under Sections IV-B-2-q and IV-B-4-a

The Board contends that J & C's Plan violates section IV-B-2-q of the Regulations in that it fails to designate "buildable land" and the approximate location of the main building on each lot within the subdivision. Conversely, J & C argues that such regulation is unenforceable under G.L. c. 41, §81Q, as it relates to the use of the lots. While it is true under section 81Q that planning board regulations may not relate to the size, shape, width, frontage or use of lots within a subdivision, or to the buildings to be constructed thereon, inquiry into these matters by the Planning Board or the Board of Health is permissible in certain circumstances. Loring Hills at 351. In the instant case, however, I do not find circumstances which are comparable to those found in Loring Hills. There, the Planning Board requested the developer to furnish information about the subdivision's "prospective character", such as dwelling size, type and location. The Court deemed this request reasonable and valid since the developer's plans showed 81 acres of land divided into eight lots sufficient to accommodate some 2,532 dwelling units and about 6,000 people. Id. at 350. Further, in Loring Hills, the developer was free to develop his locus in alternative ways within that particular zoning district. To the contrary, J & C proposes to construct a 29 lot subdivision within a "Residential Agricultural District" where residential uses are restricted to single family dwellings. There is no chance of J & C's developing the locus in "alternative ways." In addition, the Subdivision Control Law itself imposes no obligation on a developer to construct dwellings within his subdivision, as lots may be sold out to individual buyers desiring to build homes suited to their own architectural tastes and family needs. Fairbairn at 184. Accordingly, the Board acted improperly in basing its denial of J & C's subdivision application on non compliance with section IV-B-2-q.

That portion of the Board's denial which cites J & C's f ailure to comply with section IV-B -4-a of the Regulations is also invalid, but only insofar as it requires the developer to stake all proposed lots upon the filing of the Definitive Plan with the Board. Such requirement is unduly burdensome and without legal justification in view of the fact that following approval of his definitive plan, the developer is free to alter the number, size and shape of the lots, without further action of the Board, so long as such lots retain frontage on a public way. G.L. c. 41, §810. Further, as the regulation is wholly unrelated to protecting the safety, convenience and welfare of the Town's inhabitants, it runs afoul of the general purposes for which the Subdivision Control Law was enacted. G.L. c. 41, §81M. Therefore, as such requirement appears to have been adopted solely for the convenience and accommodation of the Planning Board and similar authorities, it may not constitute a basis to the Board's denial of J & C's application.

E.) Natural Features and Topography Under Sections V-A-2 and V-C-1-a

The evidence proffered at trial indicates that J & C's proposed subdivision gives little, if any, regard to the natural features and topography of the locus. Development of the site calls for the excavation of some 482 ,000 cubic yards of gravel, with cuts of nearly thirty feet in some areas, as well as the removal of many, if not all, existing trees. In essence, J & C's Plans resemble a gravel-removal operation more than a subdivision. The Plans thus evidence a total disregard for the natural features of the site in direct contravention of section V-A-2. Further, they illustrate that rather than adjust the subdivision streets to the natural topography of the site as required by section V-C-1-a , J & C is adjusting the topography to his proposed road layout. Considering the degree of destruction and excavation involved in J & C's proposed subdivision, and the fact that J & C's claimed objective of constructing a subdivision could well be achieved by less drastic measures, the Board did not exceed its authority or abuse its discretion in requiring J & C to submit information as to the retention of "natural features" on the site nor as to the proposed grades involved therein. See Loring Hills at 351 citing United-Reis at 623, 624.

In consideration of the foregoing, I therefore rule that the Board's denial of approval of J & C's Definitive Plan was supported by legally tenable reasons and should be upheld. However, as the policy of the Subdivison Control Law is to encourage the Planning Board and developer to produce, by joint efforts, the most desirable development plans for the community, J & C should be entitled to resubmit its most recent Definitive Plan following its compliance with the Board's valid requests under sections IV-B-2-1, IV-B-2-n, IV-B-4-a, V-A -1, V-A -2 and V-C-1 of the Groton Subdivision Regulations. Once J & C's Plan conforms to such Regulations, the Board, upon satisfaction of its concerns outlined above proceed, in accordance with G.L. c. 41, §81U.

The Plaintiff and Defendant have submitted requests for findings of fact, which I have considered. Certain of these requests have been incorporated herein. I have taken no action on the remainder, as I have made my own findings as to those facts which I deem pertinent.

Judgment accordingly.