MISC 128382

May 11, 1989

Bristol, ss.



The plaintiffs, Gary Carpenter ("Carpenter"), the proposed purchaser of a site on Peck Street in North Attleborough, in the County of Bristol, and the owner of the locus, North Attleborough Lodge No. 1011 of the Benevolent and Protective Order of Elks of the United States of America, appeal from the decision of the defendant Planning Board of the Town of North Attleborough (the "Board") dated May 24, 1988 which approved a definitive subdivision plan entitled " 'Carpenter's Landing' Definitive Subdivision Plan of Land, North Attleboro, Mass." dated December 8, 1987 by Risser Engineering Company (Exhibit No. 4) but denied waivers from three applicable provisions of the subdivision rules and regulations.

I am annuling the decision of the Board and am remanding it to the Board to reconsider their denial of the plaintiffs' request for a waiver of the subdivision rules and regulations relative to the proper radius of the curve of Pratt Lane and with directions to grant the other two requested waivers for the reasons hereinafter set forth.

A trial was held at the Land Court on February 15, 1989 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. Witnesses at the trial were the plaintiff, Gary Carpenter; his engineer, John Risser; Donald T. Johnson, Town Planner for the Town of North Attleborough; and three members of the Board: Brian Murphy, Elmo Finocchi and Patricia Redding.

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

1. The plainiff, Gary Carpenter ("Carpenter"), as buyer, entered into a purchase and sale agreement with the other plaintiff, the local Elks Lodge, as seller, in August of 1987 covering a parcel of vacant land containing about four acres, situated on Peck Street and bounded in large measure by Falls Pond in North Attleborough. The buyer's obligations pursuant to the agreement were subject, among other matters, to the approval "of a definitive subdivision plan authorizing the division of locus into no fewer than five lots" (Exhibit No. 1).

2. Carpenter caused to be prepared a preliminary subdivision plan showing the contemplated division of locus into ten building lots with the subdivision road, as shown thereon, 40 feet in width (Exhibit No. 2).

3. By letter dated November 6, 1987 from the Planning Board agent, Carpenter was informed that the Board had granted tentative approval "to the concept of your preliminary subdivision plan . . . subject to all the requirements for a definitive plan submission and the following additional conditions" as to which there is no present controversy (Exhibit No. 3).

4. The definitive subdivision plan (Exhibit No. 4) was thereafter prepared and filed with the Board which held a hearing on May 19, 1988. By letter from the Planning Board agent, dated May 24, 1988, the applicant was notified that the Board had voted to approve the definitive subdivision plan subject to 13 conditions, of which only No. 10 is relevant to this appeal. It read as follows: "[t ]he three waiver requests per the letter dated February 16, 1988, from John H. Risser, Risser Engineering Company, are denied. This letter is attached hereto as a reference."

5. The waivers of the Board's Rules and Regulations (Exhibit No. 7) which Risser sought for Carpenter's Landing were approval of a 40 foot layout of Pratt Lane rather than the required 50 foot layout, a waiver of the requirement that there be sidewalks on each side of the new street, with no sidewalks to be required, and approval of a center line radius of 100 feet, rather than the minimum center line radius required by the regulations of 300 feet.

6. Pratt Lane is a proposed short street ending in a turn-around with only ten lots contemplated by the subdivision. The zoning (Exhibit No. 8) permits either single-f amily homes or duplexes, locus being situated in an R-10 or "Intensive Residential" Distri ct.

7. Peck Street, on which the locus is situated, has no sidewalks in the immediate vicinity of locus, although there are sidewalks in certain sections of the street. On Peck Street there also is a recreational area for use of Falls Pond, but the area is closed at present, at least to non-residents.

8. Some members of the Planning Board were concerned by the possible construction of two-family homes on the locus lots and by the consequent traffic engendered by the residential density. At least one member also was swayed by the possibility that some lots might in the future be used for so-called recreational areas servicing the Pond.

9. In the years f rom 1986 to 1988 there had been at least eight requests for waivers of the 50 foot width requirement imposed by the Planning Board rules and regulations (Exhibit No. 7) for a minor street in a residential subdivision, and all such requests have been granted. The required pavement width in any event is 26 feet regardless of the width of the layout. There also have been at least eighteen requests for a waiver of the requirement that there be sidewalks on each side of the street as required by Section 5.4.2 of the Regulations. The regulation specifically provides that if in the opinion of the Board the sidewalks are not warranted on both sides, the Board may waive it or may require that the sidewalks be constructed on only one side. In all but three of the cases, the requirement was waived completely and in the other three instances, sidewalks were required on one side of the street only.

10. Finally, Carpenter sought for the horizontal alignment of Pratt Lane a minimum center line radius of 100 feet rather than 300 feet. There previously had been three requests for waivers in subdivisions concerning minor streets in a residential situation of which all were granted. Some of these, however, were from waivers only to two hundred rather than one hundred feet as requested here. The lower radius would require a sharper turn than the Board-mandated 300 feet. It also would reduce the number of lots into which the locus might be subdivided since Pratt Lane would have to be relocated in a more easterly direction with a result that only four lots would result.

On appeal from a decision of the Planni ng Board pursuant to the provisions of G.L. c.41, ยง81BB, the Court must determine whether the plan is in accordance with the applicable subdivision rules and regulations and whether the decision of the Planning Board is arbitrary, unreasonable and capricious and not in accordance with law. If the standards are met, then the Court must find for the Board. The problem in the present case, however, is that the Board voted to approve the plan but refused to grant the waivers on which the plan depended for its viability. The plan as approved shows a curve with the radius of one hundred feet, a street with a width of forty feet and no sidewalks. It was accordingly inconsistent for the Board to approve the plan and yet deny the waivers. Consequently, the decision is to be annulled and remanded to the Board.

It is clearly the general rule that a planning board has discretion to refuse to waive its rules and regulations, Mac-Rich Realty Construction, Inc. v. Planning Board of Southborough, 4 Mass. App. Ct. 79 (1976). It is al so well established that the rules and regulations must be reasonably definite and carefully drafted so that those subject to them will know the ground rules under which they are to operate. Canter v. Planning Board of Westborough, 4 Mass. App. Ct. 306 , 309 (1976). However, justice and equity require that if waivers are to be granted of certain rules and regulations to each applicant, then a waiver should not be arbitrarily refused. In effect, by a continuous grant of waivers, the Board has amended in a defacto way its rules and regulations and cannot hold other developers to more stringent standards. It is usual to impose a fifty foot requirement in the regulations to anticipate a future expansion of the length of the road. Here physical characteristics bar the extension of Pratt Lane. Accordingly, I find and rule that the Board should have granted a waiver of the requirement that Pratt Lane be 50 feet in width.

I further find and rule that the Board cannot impose in the present case a requirement that sidewalks be constructed on both sides of Pratt Lane since the street will serve only the neighborhood of the subdivision, that the number of homes to be constructed makes two sidewalks unnecessary, particularly in view of the fact that Peck Street into which it leads has no sidewalks at the terminus of the proposed subdivision way. I leave to the Board's determination the question as to whether one sidewalk should be required.

Finally, there is the matter of a waiver of the center line radius. Clearly there are instances where it is appropriate to have a 300 foot requirement since in a long stretch of roadway such requirement would result in a more gentle curve, but in a small residential neighborhood it well may be more appropriate to have a curve with a center line radius of 100 feet to slow traffic entering the neighborhood. Accordingly, I am requiring the Board to reconsider its refusal to waive the regulation relating to radius in the light of what I have held.

The Planning Board in considering the proposed subdivision was concerned by the density authorized by the zoning by-law. If the zoning is to be changed, that is the function of the town meeting and the Board should not attempt indirectly to control what the by-laws of the town permit.

On all the evidence, therefore, I find and rule that the decision of the Board is annulled, that the decision is remanded to the Board to grant the waivers relative to width of the layout and the necessity of sidewalks and to reconsider the requested waiver as to the center line radius.

Judgment accordingly.