MISC 127763

May 4, 1989

Worcester, ss.



By complaint filed April 26, 1988, the Plaintiff herein has appealed pursuant to G.L. c. 41, § 81 et seq. a decision of the Planning Board of the City of Leominster ("Board") denying the Plaintiff's application for approval of a definitive subdivision plan ("Definitive Plan") and further seeks a declaration under G.L. c. 231A that certain amendments of the Zoning Ordinance ("Ordinance") of the City of Leominster ("City") did not become effective until October 26, 1987. On March 30, 1989, the Plaintiff filed an amended complaint adding a count under G.L. c. 240, §14A again seeking a determination as to the effective date of the amended Ordinance.

This cause came on to be heard on November 11, 1988 on the Plaintiff's motion for summary judgment followed by a conference on March 30, 1989. Arguments of counsel, affidavits and various pleadings have been considered. I rule that as to the matters set forth herein, there are no genuine issues of material fact and therefore as to such matters the case is ripe for summary judgment pursuant to Mass. R. Civ. P. 56, Community National Bank v. Dawes, 369 Mass. 550 (1976). Inasmuch as the City has not, as of this writing, filed an answer to the amended (c. 240, §14A) complaint, I find it premature to rule on the issues therein. I do, however, make certain findings as to the applicable zoning ordinance.

I find the following facts to be pertinent and undisputed:

1. The Plaintiff is the record owner of two parcels of property located at 289 North Main Street in Leominster ("Locus").

2. On or about April 3, 1987, the Plaintiff submitted a plan of Locus pursuant to G.L. c. 41, §81P seeking the Board's endorsement that approval under the Subdivision Control Law was not required. The plan was so endorsed on April 8, 1987.

3. On or about August 7, 1987, the Plaintiff filed a preliminary subdivision plan followed on January 19, 1988 by a definitive subdivision plan, which filing included a request for waiver of certain sections of the Board's 1972 Subdivision Regulations, pursuant to G.L. c. 41, §81R. Both filings were in full compliance with G.L. c. 41, §81S.

4. On or about January 19, 1988, the Plaintiff delivered to the Defendant Board of Health a copy of the Definitive Subdivision Plan pursuant to G.L. c. 41, §81U together with a request for an opportunity to be heard. The Board of Health did not hold the requested hearing nor did it report on the Plan to the Board as required by G.L. c. 41, §81U. It did file a report after the elapse of the statutory period.

5. The Board held a public hearing on the Plan on March 15, 1988. On April 8, 1988, the Board filed its notice of disapproval with the City Clerk, and on the same date the Director of Planning forwarded to the Plaintiff a letter enumerating the Board's grounds for disapproval.

6. In summary, the reasons for the Board's denial are: 1) Violation of various aspects of the City's Zoning Ordinance pertaining to "use" regulations; 2) Violation of various subdivision regulations - curve radii and dead end streets; and 3) "Tertiary issues" concerning off-site traffic impacts and certain health or hazardous waste issues.

In consideration of the foregoing, I find and rule as follows:

1. Without fully deciding the zoning issues, for reasons set forth above, I find that the endorsement of the plan under c.41, §81P in effect froze the allowed uses of the land shown on said plan to those all owed under the Ordinance in effect at the time of such endorsement and for a period of three years thereafter, or until April 8, 1990.

2. The Board's concern with potential zoning violations is misplaced, regardless of which ordinance is in effect. The pertinent subdivision regulation applicable to zoning reads:

2.3 Compliance with Zoning

No subdivision plan shall be approved by the Planning Board unless the size, shape, width, and frontage of all lots within the subdivision comply with the applicable provisions of the Zoning Ordinance.

There is no provision for considering the proposed use of the property insofar as zoning is concerned.

3. The internal traffic concerns of the Board are legitimate, however, it appears from the plan that 50 foot curb radii are in fact proposed. It also appears that the Board's concern with a dead end street or a cul-de­sac can be remedied by establishing, with at least some degree of permanence, an access between Main Street, through the parking area to Hamilton Street.

4. While not given as specific reasons for the permit denial, I will address the "Tertiary issues" in anticipation of a final resolution.

a) The off-site traffic concerns as such are beyond the scope of the Board's subdivision review. The Board's regulations do not provide for a review of the adequacies of adjacent public ways or off-site traffic densities and accordingly, such are not an issue insofar as subdivision approval is concerned.

b) While it is true that the Board of Health's failure to timely report to the Planning Board on a prepared subdivision "shall be deemed approved by such board. . . .", a Planning Board need not ignore an actual health hazard of which it has knowledge. While the presence of hazardous materials is certainly a matter to be resolved, it should not be a concern to the Planning Board in subdivision approval. Rather, such situations should be resolved prior to or concurrent with the issuance of the various required permits for the proposed development and the City may, and probably should, pursue its remedies under G.L. c. 21E if applicable.

Accordingly, I find that the Leominster Planning Board exceeded its authority in denying the Plaintiff's Definitive Subdivision Plan of July 19, 1988 and that such decision of April 8, 1988 is hereby annulled in part and remanded to the Board for further consideration, provided, however, that prior to such consideration, the Plaintiff may modify said plan to provide the access discussed herein. Moreover, the Board, should it approve said revised plan, may include an endorsement requiring compliance with G.L. c. 21E prior to the issuance of any occupancy or similar permits for the Locus.

As stated herein, I have reserved any ruling on the 1987 zoning amendments until the City has had a reasonable time to file its answer. I leave it to the parties to take whatever further action in this regard they may feel appropriate.

I would also comment that while as I have found many of the issues raised by the Board are not subdivision issues, they are legitimate concerns which may properly be raised by the appropriate boards or regulated by appropriate ordinances or regulations.

Accordingly, it is

ADJUDGED and ORDERED that the Planning Board's Order of Apri l8, 1988 is annulled in part as stated herein; and it is further

ADJUDGED and ORDERED that the plan is remanded to the Board for further consideration not inconsistent herewith, provided further that the Plaintiff may modify said plan prior to such consideration to provide a continuous access route between North Main and Hamilton Streets connecting with the proposed parking area.

By the Court