Benjamin F. Miles, III, the plaintiff and owner of land abutting the proposed Clearview Estates Subdivision in Millbury in the County of Worcester, has appealed from the conditional approval by the Millbury Planning Board of his neighbor's subdivision plan, pursuant to the provisions of G.L. c.40A, §81BB. The plan is entitled "Clearview Estates in Millbury, Massachusetts owned and developed by Clearview Realty Trust, Francis J. Castagnetti, Trustee", dated October 22, 1986, as revised, by Thompson-Liston Associates, Inc. Miles originally brought his appeal in the Superior Court Department for the County of Worcester, C.A. No. 88-0821, and after the developer, Francis J. Castagnetti, as Trustee of the Clearview Realty Trust, was allowed to intervene as a matter of right, a Justice of the Superior Court allowed a motion to transfer the action to this Department.
The current litigation has been preceded by two prior court actions. By decision dated February 27, 1987 the defendant Planning Board disapproved Castagnetti's definitive plan for the sole reason "that it can be reasonably assumed that Park Hill Avenue cannot safely provide access for the proposed subdivision." Castagnetti appealed to this Department and the present plaintiff appealed to the Superior Court, Worcester Superior Court Case No. 87-0612, Miles v. Philip Dumas, et al, to which by special designation of the Chief Administrative Justice, I was assigned. On the motion of Castagnetti as intervener I dismissed the plaintiff's then appeal 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. After a trial in the Land Court a Judgment was entered on January 21, 1988 to the effect that the decision of the Board failed to meet the statutory requirements by not stating in detail the grounds on which it was based and the decision was annulled. Thereafter, the defendant Planning Board held two additional public hearings on February 18 and March 3, 1988 and approved Castagnetti's subdivision plan subject to certain conditions.
A trial was held at the Land Court on November 14 and November 15, 1988 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence in this action, and in Castagnetti, Trustee v. Town of Millbury Planning Board, Land Court Miscellaneous Case No. 122857, are incorporated herein by reference for the purpose of any appeal. Castagnetti admitted during the trial that the plaintiff owns land adjoining the locus. He did not raise any issue of standing, Miles also being a developer (see Miles v. Planning Board of Millbury, 26 Mass. App. Ct. 317 (1988)) and in zoning matters at least subject perhaps to the strictures of Circle Lounge and Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 327 (1949). The parties orally agreed to the stipulations set forth in paragraphs 2-5 inclusive of Exhibit No. 1. The stipulation constitutes the plaintiff's waiver of certain of the allegations set forth in his amended complaint relative to the filing of a notice of intent with the Conservation Commission, approval for a proposed sewer system, and the provision of the interior street design of Clearview Estates Subdivision as a safe and adequate design for vehicular traffic. During the course of the trial the plaintiff also agreed that he would be satisfied with a notation on the subdivision plan evidencing his claim of a right to use Meeting House Lane without waiving his right to establish such rights and the location of the sidelines of the Lane.
On all the evidence, I find and rule as follows:
1. After the remand from the Court of the 1987 decision of the Planning Board, notice properly was given of a public hearing to consider the approval of the Clearview Estates Subdivision plan (Exhibits Nos. 2 and 3 in Case No. 122857) and the hearing was held on February 18, 1988 and was continued to March 3, 1988. At the first night of the public hearing, counsel for the plaintiff presented a letter to the Planning Board outlining his client's concerns with the subdivision. His presentation was followed by a lengthy discussion which involved not only attorneys for the two principal antagonists and Mr. Castagnetti, but also members of the public, the Planning Board and the former Town Planner. The matter was continued until March 3, 1988 at which time a decision was to be reached (Exhibit No. 6).
2. On March 3, 1988 the adjourned hearing of the Planning Board on approval of the Clearview Estates Subdivision was held. At the hearing the Planning Board presented Castagnetti with a list of conditions to which the approval of the plans was to be subject; they were reviewed by the Board, counsel, the developer and members of the public. The conditions were discussed at length at the hearing and it was concluded that "another draft with corrections will be presented to Mr. Castagnetti before endorsements of the plans." The motion was then made and seconded to approve the subdivision with conditions and it was unanimously so voted.
3. The certificate of approval of a definitive plan was filed with the Office of the Town Clerk on March 7, 1988. It recited the approval of the definitive plan with the following conditions: "see attached sheets". No sheets were attached to the certificate (Exhibit No. 5). The Town Planner, who had worked with the Board on the proposed subdivision during 1986 and 1987 had left the employ of the Town of Millbury some time before the 1988 hearings, and he then and now worked in the Planning Department of the City of Fitchburg. He was retained, however, on a part-time basis to assist the Millbury Board, and was present at the hearings and worked on the proposed conditions. He was not aware that apparently the Board's Secretary had filed the certificate.
4. The conditions which had been thoroughly discussed at the public hearings were further considered by counsel for Castagnetti, the then Chairman of the Planning Board, and the former Town Planner, and when put in final form were filed with the Town Clerk on March 23, 1988. This was subsequent to the filing of this appeal in the Worcester Superior Court and once the conditions were filed, the complaint was amended to reflect the plaintiff's concern with the conditions as drafted. The conditions as presented at the public hearing and as finally drafted were substantially the same.
5. The plaintiff claims the right to use what is shown on the definitive plan as "Center Line Old Road". The area in question is shown as lying between the line of the subdivision and the stone wall as shown on sheet 1 of Exhibit No. 3. Castagnetti is agreeable to indicating on the plan the claim by the abutter to use the old road. It is not clear whether the stone wall is the center line of so-called Meeting House Lane or whether the line of the lots in the subdivision is the center line. The latter would appear to be the case. Castagnetti disputes the present existence of the so-called Meeting House Lane and the plaintiff's right to use it, but he was willing to stipulate at the commencement of the trial as follows:
1. That the third Condition of Approval of the Clearview Estates Subdivision Plan shall be satisfied by the following plan notation:
Benjamin Miles, whose property abuts the southerly border of Clearview Estates has claimed a full use easement with respect to a presently unused way of unknown origin which runs along the southerly border of Clearview Estates where Clearview Estates abuts the property of Mr. Miles and of the Greystone Realty Trust. Miles' claimed easement potentially affects an approximately twenty-foot wide strip of Clearview Estates property which abuts the property of Mr. Miles and the Greystone Realty Trust. The Clearview Estates' lots which may be subject to Miles' claimed easement are numbered 1, 112, 110, 108; 106, 104 and 102.
The parties further agree that in light of their agreement with respect to the above notation language that the plaintiff will waive the allegations contained in paragraph 20 (C) of his Amended Complaint.
2. Plaintiff agrees to waive the allegations contained in paragraph 20 (D), and 20 (H) of his Amended Complaint.
3. Plaintiff agrees that with respect to the allegations contained in paragraph 20 (F) of his Amended Complaint, plaintiff waives any allegation that the interior street design of Clearview Estates will not provide safe and adequate vehicular travel.
4. The parties stipulate that all documents introduced into evidence in the prior case of Castagnetti v. Millbury, Miscellaneous No. 122587, may be used as evidence in this proceeding without further qualification.
5. The parties stipulate that copies of all documents may be introduced into evidence in lieu of the originals.
The plaintiff, however, was unwilling to accept this stipulation with the requirement that he waive the allegations relative to Meeting House Lane in paragraph 2 of his Amended Complaint. As noted above, the matter was resolved during the trial by agreement that the plaintiff would accept a notation on the Plan for subdivision purposes, but would not be barred from asserting his rights in another forum. The other provi sions of the stipulation were agreed to by all parties.
6. Andrew B. Liston, an expert witness for Castagnetti whose firm prepared the subdivision plans, testified concerning the calculations done by his office for 10 and 100 year storms as required by the Massachusetts Department of Environmental Quality Engineering, rather than the 20 year storm required by the rules and regulations of the Millbury Planning Board. It was his opinion that the 10 and 100 year storm levels gave the outside ranges as to what would occur in a normal water shed. He also testified as to the pre-and post-development run-off. The property presently is used as a golf course and some of it is undeveloped. There are three drainage areas now existing thereon, one which drains away from the land of the plaintiff, one which drains toward it and a third draining toward Park Hill Avenue. Some of the drainage which presently flows in directions other than the property of the plaintiff may now be diverted onto it. The witness also testified that the box culvert was designed in such a way to avoid putting rip-rap beyond the end of the culvert for any significant distance so that there would be no encroachment on the land of the abutter.
7. Boston Survey Consultants are the Planning Board's experts and the three reports from them (Exhibits Nos. 9, 10 and 11) were introduced into evidence. Thompson-Liston Associates, Castagnetti's experts, attempted to respond by preparation of a drainage report (Exhibit No. 16) and by testimony at the trial.
8. Members of the public who are apparently owners of adjoining undivided land sought to have the Board impose conditions on the developer for extension of utility service and roads to which the abutters might tie in. Subsequent to the hearing a plan (Exhibit No. 18) was prepared showing "addition of road stub" which would lead to the abutting Miles property but not to that in the area where various participants at the hearing apparently own property. The plan as filed, however, shows the road in the current subdivision meeting those in an adjoining subdivision, the details of which have not as yet been worked out by Castagnetti with the owner.
There are two principal legal issues presented by this appeal: (a) the viability of the decision of the Planning Board when the initial approval was filed in the Town Clerk's office without the conditions, the status of the conditions subsequently filed, and the possible violation of the open meeting law, G.L. c. 39, §§23A-23B, by the revision of the conditions after the vote of the Planning Board on March 3, 1988; and (b) the status of the approval where the conditions arguably required future action by the Board as violative of the rule in Weld v. Board of Appeals of Gloucester, 345 Mass. 376 (1963). A subsidiary question concerns the status of Meeting House Lane and an appropriate reference to it on the Plan.
The standards applicable to an appeal from a decision of a planning board are well settled. A plan is entitled to approval by the board under the subdivision control law if it conforms to the reasonable rules and regulations of the Board and the recommendations of the Board of Health, which are not an issue here. The trial on the appeal is de novo, but the judicial review is limited to a determination as to whether the board's decision exceeded its authority. Strand v. Planning Board of Sudbury, 7 Mass. App. Ct. 846 (1979). On all the evidence I find and rule that it did not.
Admittedly the approval of the definitive subdivision plan was filed prematurely with the party filing it on behalf of the planning board being unaware that the applicable conditions were not attached thereto. The belated filing of the conditions thereafter made the approval complete; if the filing date were an issue, a determination would have to be made as to whether it was the latter act which started the running of the appeal period or whether the filing of the approval itself was the significant action. Here the developer who was primarily affected by the conditions does not challenge their filing. The timing of the plaintiff's appeal has not been questioned. Accordingly, there is no reason now to rule on the operative date. I do find and rule, however, that the conditions are incorporated into the approval part thereof despite their subsequent filing.
The plaintiff did not raise in his pleading any question pursuant to G.L. c. 39, §§23A-23B, but he argued at the trial that the Open Meeting Law vitiated the Board's decision. It is clear that the relief if a violation is found is discretionary with the trial judge although he is required to instruct the board as to its future course in such an event. In the present case, however, I find no violation of the statute. The public hearing was advertised as required by the statute. The hearing encompassed two different meetings, the minutes showed full participation by the board members, counsel for the plaintiff, Castagnetti and his counsel, and other interested parties. The earlier trial was discussed, the proposed conditions were considered one by one and a vote was taken to approve the plan. There is no requirement that the decision be drafted in public, Yaro v. Board of Appeals of Newburyport, 10 Mass. App. Ct. 587 (1979), nor does the law require that the exact language of the conditions as finally phrased be read at the public hearing. However, apart from the open meeting law there remains a question under the subdivision control law as to whether the board again should have reviewed the conditions after they had been finalized. I have carefully compared the language of the proposed conditions as presented at the meeting and those finally adopted and find no significant differences which would require me to vitiate the Board's approval with the arguable result that the Plan had been constructively approved.
There remains a question as to whether the conditions are such as to require further action by the Board and accordingly fall within the proscription of Weld v. Board of Appeals of Gloucester, 345 Mass. 376 (1963) where it was held that a special permit could not survive the conditional nature of its grant. There is, of course, a completely different course of action envisioned by the respective statutes governing zoning and planning matters, and by their very nature the latter are much more conducive to a continuing interplay between applicant and board. See North Landers Corp. v. Planning Board of Falmouth, 382 Mass. 432 , 443 (1981). There, of course, is also the risk that conditional disapprovals may in fact be a constructive approval by a planning board. See Planning Board of Falmouth v. Board of Appeals of Falmouth, 5 Mass. App. Ct. 324 , 327 ftn. 2 (1977). Falcone v. Planning Board of Stoughton, 14 Mass. App. Ct . 901 (1982). The Appeals Court has recognized that "[t]he Weld case is often cited but almost invariably distinguished". Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 624 (1986). This seems another case in this tradition. While the conditional approval requires further action on Castagnetti's part, no further action is required by the Planning Board.
The Plan shows the southerly boundary of the Clearview Estates subdivision to bound by an old road commonly known as Meeting House Lane which lies in part along the common boundary line of land of the plaintiff and Castagnetti. The placement of the stone wall suggests that the entire fee of the "old road" lies on the developer's land with one-half thereof in the subdivision lots, but a determination of that question and the present extent of any rights therein awaits either a peaceful resolution or another legal action. This is not the proper proceeding in which to determine that question. As noted above, it is unclear from the Plan whether the center line of Meeting House Lane is the southerly line of the subdivision lots, the stone wall or the middle of the area lying between the two. In order fully to protect any future purchasers of the lots in question and any third party claiming rights as well as to give notice to the Building Inspector, the developer has agreed to note on the plan the claim by the plaintiff of the right to use the "old road". The note should make it clear that the claim may extend to a portion of the numbered lots abutting what is shown as the "old road".
While the Complaint and Amended Complaint raised certain questions about the validity of the Board's procedure which were fully litigated and which have been discussed herein, the pleadings also raised other questions which were not subsequently specifically waived. However, the burden of establishing the error in the Board's position was on the plaintiff, and as to any other alleged errors not discussed herein, I find and rule that the plaintiff did not bear his burden.
In addition to the findings and rulings previously made, I further find and rule that the Plan conforms to the rules and regulations of the Millbury Planning Board as in some instances impliedly waived. One further matter may need clarification. As is often the case, the Millbury Board's rules require extension of subdivision roads and utility easements to a common boundary line with undeveloped land. The mere showing of such a way on the subdivision plan alone gives the abutting owner no right to use such a way absent a grant from the developer. See Dolan v. Board of Appeals of Chatham, 359 Mass. 699 (1971). There may well be a question as to the propriety of the rule other than in cities or towns where subdivision roads routinely are accepted as public ways, but Castagnetti raises no such question. Moreover, such a rule has impliedly been upheld in a number of cases, but as dicta, not as a holding in the case. See, for example, Austin v. Board of Survey of Waltham, 15 Mass. App. Ct. 978 (1983).