MISC 131557 & 126907

June 2, 1989

Middlesex, ss.



Woodland Investment Corporation appealed (Case No. 1) pursuant to the provisions of General Laws chapter 41, section 81BB from the conditional approval by the defendant Sherborn Planning Board of a plan entitled "'CIDER HILL' Subdivision of Lot 26 as shown on Land Court No. 8251 [Note 1] Sherborn Owned by Northeastern Construction Company Inc.", dated May 26, 1987 by MacCarthy & Sullivan Engineering, Inc. (the "Plan") (Exhibit No. 1). The appeal originally was filed in the Superior Court for Middlesex County, and thereafter, on motion allowed by Mitchell, J. was removed to this department. Subsequently, the defendant Planning Board, while Case No. 1 was pending, revoked, or attempted to revoke, its approval of the Plan and Woodland Investment Corporation again appealed (Case No. 2). The answer by the defendant Board set forth a counterclaim seeking a judicial determination that the Board had acted within the scope of its authority in rescinding its prior approval and that rescission did not require the consent of the plaintif for Neworld Bank for Savings, the holder of a mortgage on the premises dated April 21, 1988 and registered with the Middlesex South Registry District of the Land Court as Document No. 722089 (Exhibit No. 2). The two actions were then consolidated. Case No. l is reached by the Court, however, only if it is held that the Planning Board's revocation must fail, and I do so hold. In Case No. 2, I find and rule that two of the three conditions which form the nexus of the plaintiffs' dispute with the Planning Board are invalid and unenforceable, but that the waivers granted by the Board of three of its rules and regulations are valid as being in the public interest. In its amended complaint the plaintiff attacked several other conditions imposed by the Board, some of which may be without the orbit of the Board's function pursuant to the Subdivision Control Law. I have, however, treated them as waived since neither evidence at the trial or the briefs submitted both before and after the trial focused on such provisions.

A trial was held at the Land Court on March 13 and 14, 1989 at which a stenographer was appointed to record and transcribe the evidence. Twenty­five exhibits were introduced into evidence which are incorporated herein for the purpose of any appeal. Leo F. Blair, president of the plaintiff; three members of the Planning Board; Mark Kiesel, a real estate developer; Sally Sarah Chalfant, an attorney; and John Stein, an architect, testified.

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

1. Sometime in January of 1987 a preliminary plan was filed with the Planning Board which presaged the Definitive Plan now before the Court. This application had been preceded by a board appearance by the plaintiff's representatives in September of 1986. The preliminary plan subsequently was withdrawn after conferences with members of the Board and on their advice. The Definitive Plan of Cider Hill was filed for approval with a Form C application (Exhibit No. 7) on June 9, 1987, and the application was signed by Leo F. Blair, Trustee, with the name and address of Sherborn Realty Trust beneath the signature. The actual owner of the real estate was Northeastern Construction Company, Inc. ("Northeastern") and its name appears in such capacity on the Plan.

2. Mr. Blair and his associate, John Rabe, attended a series of meetings with the Planning Board, in excess of twenty, over the next several months culminating in the climactic meeting of December 21, 1987. The buyer named in the purchase and sale agreement with Northeastern was Woodland Investment Corporation whose address was the same as that of Sherborn Realty Trust. The agreement was in the standard 1984 Boston Real Estate Board form which in paragraph 4 provided for the deed to run to the buyer or to "the nominee designated by the buyer." At this time it was contemplated by Blair that there would be a pool of investors in the subdivision who would hold the beneficial interests in Sherborn Realty Trust with Blair as trustee and that title would be taken in the trust.

3. Delays in obtaining the approval of the Plan by the Board required repayment of their investment to outsiders, and title accordingly was taken in Woodland Investment Corporation as evidenced by the deed from Northeastern Construction Co., Inc. to it dated April 11, 1988 and duly registered with the Middlesex South Registry District of the Land Court (Exhibit No. 9). The consideration set forth in the deed is $2,200,000. The granted premises were described as Lot 24 on Land Court Subdivision Plan 8251H.

4. Registered with the deed was a mortgage from the plaintiff to Neworld Bank for Savings dated April 21, 1988 and duly registered as Document No. 722089 to secure the payment of a promissory note in the principal amount of $2,950,000 (Exhibit No. 20). The principal amount of the loan represented the purchase price of Lot 24 and the moneys invested by the plaintiff in refunding the putative investors' contributions. Woodland already had a line of credit with Neworld of $1,500,000 which was reduced to $1,000,000 when the additional borrowing was consummated. (See Exhibit No. 3, a Revolving $1,000,000 demand note).

5. Before the purchase stage was reached, however, conferences with the Planning Board began in the pattern envisaged by the Supreme Judicial Court in North Landers Corp. v. Planning Board of Falmouth, 382 Mass. 432 , 443 (1981), but so rarely conducted. There had been no residential subdivision presented to the Sherborn board in eight or nine years so the board members despite their professional background were inexprienced in their roles. They wished to have the site developed but in the most attractive way possible and with adequate open space. They hired, at the applicant's expense, Goldberg Zoino Associates ("GZA") (Exhibits Nos. 23 and 24) to advise the Board on compliance of the Plan with its Rules and Regulations, and one of the conditions of the approval provides for the monitoring by the expert of the work in progress. In addition, the Board engaged a firm at the applicant's expense, expert in land planning, which made oral suggestions about the subdivision and provided sketches for the applicant's use.

6. The plaintiff sought waivers from the Board of the following rules and regulations: as to the width of Cider Hill Lane, the subdivision way with a requested fifty foot wide access rather than sixty, as to the paved width of twenty rather than twenty-six feet, and as to the length of Cider Hill Lane which the Board considered as a dead end street in excess of one thousand feet. The requested waivers evolved during the hearings and were incorporated in the Certificate of Action.

7. The Planning Board during its consideration of Cider Hill had desired the incorporation of open space into the subdivision for the benefit of the Conservation Commission and the inhabitants of the town. The Plan sets forth not only a 12 foot wide equestrian trail easement but a water course easement as well. During the hearings, however, the Board sought additional open space, and one member suggested that a buffer between the Town Cemetery and the subdivision would be appropriate.

8. A meeting of the Board was held on December 21, 1987 to consider final approval of the Plan. Professionally and personally it was a busy time for board members, and when difficulties arose about agreement as to the conditions, they sought a further extension of their statutory time for action. The plaintiff refused to consider an extension since, among other reasons, its seller had indicated that it was unwilling again to extend the time for performance of the purchase and sale agreement. Disagreements arose between the Board and the applicant in at least three areas: the gift of open space to the town, the contribution to a sidewalk fund and the sinking of a well for a neighbor. The developer had understood that any gift to the town was for a three year period and did not understand at first that it was perpetual and without compensation. A heated exchange followed off the record, and ultimately Blair said on the record, "we'll agree for the record to sell that lot to the town of Sherborn for one dollar".

9. The Planning Board favored a paved portion of Cider Hill Lane more narrow than the twenty-six feet called for by its rules and regulations. It had discussed as an alterntive twenty-two feet in width, and at the final hearing suggested twenty feet with the plaintiff contributing the difference in cost between the various paving expenses to the town's sidewalk fund. The fund was not necessarily for use in the subdivision's neighborhood but anywhere in town. The developer thought the Board meant the difference between the twenty-two and twenty foot wide paved section while the Board intended a $26,000 saving between the twenty-six foot wide formal requirement and the twenty feet covered by the waiver; from the saving both the developer and the Board deducted the estimated cost of the neighbor's well.

10. An abutter to the subdivision had a well close to the proposed way, and the Board was concerned that salt from the roadway might pollute it. Accordingly they wanted the developer's commitment to drill a new well for Mr. Nordfeld if necessary.

11. The negotiations culminated in the execution of a Certificate of Action by the Board (Exhibit No. 5) in which there are set forth thirty-nine terms and conditions. They are preceded in the decision by this statement:

The Applicant has offered and agreed, in order to provide open space for the subdivision and residents of the Town generally, and to create an appropriate buffer between the development and the existing Town cemetery, to deed lot 42 to the Town of Sherborn for $1.00 at the time of the endorsement of the definitive subdivision plan by the Planning Board and will subsequently clear the land of all debris including dead trees and any construction materials.

which thereafter describes the waivers granted:


The Planning Board waives the following requirements of the "Rules and Regulations of the Sherborn Planning Board" to the extent that the Plan as approved does not meet them:

1. Section 4.2.3: that the minimum width of street rights-of-way shall be 60 feet.

2. Section 4.2.5: that dead-end streets shall not exceed 1,000 feet in length.

3. Section 5.3.1: that streets must have a pavement width of 26 feet.

12. The Certificate of Action also contains the following two conditions to which the plaintiff objects:

26. The Applicant shall donate the estimated savings of $22,000, due to the partial waiver of the 26 foot required pavement width, to the Town of Sherborn to be used in its discretion for the provision of pedestrian ways.


38. The Applicant shall provide a new drilled deep well on the adjoining property of Elmer Nordfeld, in conformity with all requirements of the Sherborn Board of Health.

13. The plaintiff owns sufficient land to provide the required sixty foot access to the subdivision from Forest Street rather than from Main Street, but existing traffic problems make this alternative less desirable. Accordingly it is being used for an emergency access and a water easement. The developer had anticipated obtaining sufficient land adjacent to locus to provide the sixty foot access at the proposed entrance from Main Street, but he or his seller was unable to consummate the transaction.

14. The Planning Board considered the subdivision way to exceed its limit for dead end streets of 1,000 feet. More usually such a regulation applies to a way ending in a turnaround and not a looped configuration. With emergency access from Forest Street and the loop, the problem of blockage of the street in an emergency is diminished.

15. In a town such as Sherborn where more narrow streets prevail and country image is important, the attitude of the Board toward the width of the pavement apparently reflects the consensus of the community without sacrificing safety.

16. The appeal from the Certificate of Action was filed on January 13, 1988 in the Middlesex County Superior Court. The Planning Board being of the opinion that the plaintiff had reneged on its agreement, held a public hearing on October 24 to consider the revocation of the approval of the Plan which hearing was continued several times. In fact, the Board's meeting on January 9, 1989 was not posted in accordance with the provisions of the Open Meeting Law, but that failure is not an issue here. At the January meeting, the Board, despite the pendency of this litigation and because of the appeal, voted to rescind the Certificate of Action of December 24, 1987 and the vote of December 21, 1987 approving, subject to conditions, the definitive subdivision plan for Cider Hill. The second appeal followed. Prior to the January meeting at which the vote was to be taken, the Court expressed an opinion that the Board's course was unwise until Case No. 1 had been decided, but the Board failed to heed this view.

If the Planning Board had authority to revoke its approval, the original appeal from the decision conditionally approving the Plan would become moot. Therefore, I address first the questions raised by the second-in-time action. The initial inquiry is whether the Board was justified in its January 9, 1989 rescission because of the developer's appeal and if so, whether the existence of the mortgage barred such a step. I find and rule that the Board had no right to rescind the approval when and for the reasons it did. Section 81W of Chapter 41 of the General Laws does indeed give a planning board power to rescind its approval of a plan of a subdivision, but as very recently pointed out by Justice Wilkins in a case very similar to the present, Young v. Planning Board of Chilmark, 402 Mass. 841 (1988), the section does not describe the circumstances in which a planning board may do so. Dicta in certain cases recognizes the right, but these cases, he stressed, all involve "mistakes by planning boards, known to the developers, which resulted in the unintended approval of a subdivision plan or on the approval of such a plan without the inclusion of the intended conditions." (Page 845). He continued at page 846, "[p]resumably a planning board may not without good reason rescind approval of a definitive plan." In Young which also concerned a gift to the town, the plaintiffs refused to make this a condition, but agreed to a voluntary gift which was not made. In the case before me the developer, bound by time constraints, felt compelled to agree to make a gift to the town, and this was incorporated into the Certificate of Action although not as an express condition. The Board's approach is exactly the course of conduct proscribed by G.L. c. 41, §81Q which states:

No rule or regulation shall require, and no planning board shall impose, as a condition for the approval of a plan of a subdivision, that any of the land within said subdivision be dedicated to the public use, or conveyed or released to the commonwealth or to the county, city or town in which the subdivision is located, for use as a public way, public park or playground, or for any other public purpose, without just compensation to the owner thereof.

This is not to say "that a board cannot in a proper case require the plan to show a park or parks suitably located for playground or recreation purposes or for providing light and air and not unreasonable in area in relation to the area being subdivided and the prospective uses of such land, and if so determined said board shall by appropriate endorsement on the plan require that no building may be erected on such park or parks for a period of not more than three years without its approval." This was what Blair initially thought the Board was proposing, and it clearly would have been unobjectionable. The Board cannot, however, seek to have a developer make the type of gift the General Court has forsworn, to which the developer under time and financial pressures agrees and expect the courts to uphold the Board's position. The gift clearly is not voluntary, and such practices should not be sanctioned. The appeal therefore to test the validity of the provision was within the developer's statutorily granted rights and the Board was without authority to revoke its approval on these grounds. The contribution to the sidewalk fund also fails, at least without authority from the General Court, since it is an invalid tax within Emerson College v. City of Boston, 391 Mass. 115 (1984) rather than an impact fee. See Northeast Builders Association of Massachusetts, Inc. v. Town of Dracut, Superior Court Civil No. 87-6222 (1987). Cf. Bonan v. City of Boston, 398 Mass. 315 (1986).

Section 81W further provides:

No modification, amendment or rescission of the approval of a plan of a subdivision or change in such plan shall affect the lots in such subdivision which have been sold or mortgaged in good faith and for a valuable consideration subsequent to the approval of the plan, or any rights appurtenant thereto, without the consent of the owner of such lots, and of the holder of the mortgage or mortgages, if any, thereon; provided, however, that nothing herein shall be deemed to prohibit such modification, amendment or rescission when there has been a sale to a single grantee of either the entire parcel of land shown on the subdivision plan or of all the lots not previously released by the planning board.

Counsel for the Board argues that the mortgage here was not "in good faith and for a valuable consideration subsequent to the approval of the plan . . ." since the mortgagee had a continuing business relationship with the plaintiff-mortgagor, and made the loan while the approval was in litigation. The real question, however, is being litigated by whom which of course, here is the developer, who even if he lost, still had an approved subdivision plan with the legal contest affecting only the terms and conditions of the approval. The board also argues that Neworld is not protected by section 81W since the mortgage does not describe the premises by the lots on the subdivision plan. This obviously was because the matter being in litigation, the Town Clerk was unable to make the final certification nor could the Plan be filed with the Land Court Engineers. Until the latter step was taken, the Court would not approve a new description referring to lots on the new plan. It does not follow however, that Neworld loses its protection. The final proviso of the paragraph quoted above makes it clear that the sale of the entire parcel to a single grantee does not clothe the latter with immunity from revocation. The language formerly included a mortgagee as well but this was amended by St. 1977, c. 473 to strike mortgagee from the provision. Cf. Murphy v. Planning Board of Norwell, 5 Mass. App. Ct. 393 (1977). This then is a legislative roadmark that the mortgage of an entire parcel rather than individual lots, does not strip a mortgagee of protection.

I therefore find and rule that the provisions of section 81W relative to a mortgagee provide an additional reason why the Planning Board was in error in attempting to revoke its approval.

From what I have already written about the conditions imposed by the Board, it is clear that the Board's action in requiring a consideration-less conveyance to the Town and a gift to a sidewalk fund are unenforceable.

Mr. Nordfeld also appealed the board's Certificate of Action, but it does not appear whether his appeal is still active. The Certificate provides as protection to him that the plaintiff drill a new well on the property of this abutter. The imposition of such a condition may well be beyond the power of the Board to compel since in the main the Subdivision Control Law commissions the Board to consider conditions within the subdivision locus, not without it. However, it may well be appropriate for a board to weigh the impact on a neighbor of some possible harm and to make provision for it. See North Landers Corporation v. Planning Board of Falmouth, 382 Mass. 432 (1981). The plaintiff did agree to the drilling of the well, it was not a consideration forbidden by the Subdivision Control Law and under the circumstances here I find the provision reasonable and valid. Cf., however, Hahn v. Planning Board of Stoughton, 24 Mass. App. Ct. 553 , 555 (1987).

The applicant mounted a blanket attack against the Rules and Regulations of the Board. While I agree that many of them are overly broad and without the precision called for in a series of decisions by the appellate courts commencing with Castle Estates, Inc. v. Park & Planning Boa rd of Medfield, 344 Mass. 329 (1962), not all of the rules and regulations fall within the classification condemned by the Courts. A blunderbuss approach by the plaintiff misfires. Each objectionable rule must be pointed out and analyzed, and that has not been done. In studying them and the GZA reports, I have concluded that as applied to Cider Hill men of good will can make them work to produce a successful subdivision even though in some instances they go beyond statutory authority and the purpose of the law to provide safe access to the proposed homes. Chira v. Planning Board of Tisbury, 3 Mass. App. 433 (1975).

The Board contends that it would not have granted the waivers unless the developer had made the agreements herein held objectionable. It argues that it was in these undertakings that the Board found the public interest which section 81R mandates for a waiver of rules and regulations. To be more precise, this section provides in part as follows:

A planning board may in any particular case, where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law, waive strict compliance with its rules and regulations, and with the frontage or access requirements specified in said law, . . .

The Board mistakes the public interest to which the statute refers. It is not a quid pro quo which is obtained from a developer in return for a lifting of some objectionable rule. Rather it refers to some particular aspect of the property or of the nature of the development which supports a waiver in a particular case without derogating from the reason for application of the rule. For example, GZA in both of its reports concurs that a fifty foot right of way is adequate on a tertiary street. The avoidance of additional traffic on Forest Street where a sixty foot access was possible also supports a finding that this waiver was in the public interest.

Similarly, the waiver of the width of the pavement primarily was board motivated. It seems appropriate in this relatively small subdivision and in keeping with the Board's preferences.

Finally, I do not agree that Cider Hill Lane falls within the rule relative to dead end ways, but if it were applicable, a waiver is in the public interest in view of the emergency access.

The Board has raised an issue as to the validity of the application for approval of the Plan since it was filed by Blair, as trustee of Sherborn Realty Trust which had no interest in the real estate at the time the application was filed (or thereafter). It was, however, contemplated in the early stages of the planning board process that title would run to the trust as nominee of Woodland Investment Corporation, but subsequent events, primarily the length of the approval process, caused a different decision to be made as to title. The Board was not deceived as to who the principals of the developer were, and it is a fact of modern business practice that the same organization may use different legal entities to serve its purposes. After the length of the present process it would be a travesty of justice to find jurisdiction lacking to move forward.

On all the evidence, I find and rule that the Planning Board was without authority to revoke its approval of the Plan; that the provision which reflects a conveyance of the lot adjacent to the Town incorporates an agreement in violation of G.L. c. 41, §81Q and cannot be enforced; that the condition relative to the sidewalk fund contribution is invalid as without not only the authority of the Board but the Town as well; that the condition requiring the drilling of a well on land of an abutter was, subject to the abutter's approval, accepted by the plaintiff and is valid; that the waivers granted by the Board are in the public interest and valid; and that as modified herein the Certificate of Action dated December 21, 1987 is upheld.

Judgment accordingly.


[Note 1] A motion by the plaintiffs to dismiss Sherborn Realty Trust as a plaintiff was allowed by the Court on March 13, 1989.