This is an appeal pursuant to the provisions of G.L. c. 41, §81BB by Elizabeth Barrington, as trustee of the Clark Family Trust, [Note 1] from the disapproval by the Planning Board of the Town of Sudbury (the "Planning Board") of a definitive subdivision plan of Green Hill Estates for Sudbury, Mass. dated July 11, 1986 by Colburn Engineering, Inc. (Exhibit No. 2) (the "Plan") for nineteen different reasons. At the commencement of the trial, however, counsel stipulated that there remained only two issues in dispute between the parties:
a) the refusal of the Planning Board to waive its regulation limiting the length of dead-end ways; and
b) the accessibility across their respective frontage of Lots 5 and 6 on the Plan.
A trial was held at the Land Court on November 8, 1989 and January 19 and 24, 1990 at which a stenographer was appointed to record and transcribe the testimony. Prior to the trial the Court had heard and denied the plaintiff's motion for partial summary judgment relative to the applicability of the 1985 amendment to the Planning Board's Rules and Regulations (Exhibit No. 3) which had not been filed with the Recorder of the Land Court at the time of the Board's decision. The Court ruled in denying the motion that as applied to the facts of this action the amended rules and regulations were in effect, and I hereby confirm that decision for the reasons set forth in my order denying the motion for partial summary judgment. At the trial the witnesses were Julia Sharkey, office manager of Schofield Brothers, Incorporated, Russell P. Kirby, a member of the Planning Board, William Place, the Sudbury Town Engineer, Michael Dunn, the Sudbury Fire Chief, James G. Crowther, a registered land surveyor whose firm prepared the Plan for the plaintiff and submitted it to the Planning Board, and Lee Newman, the Sudbury Town Planner. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.
On all the evidence I find and rule as follows:
1. The plaintiff is the owner of a tract of vacant land principally situated off Old Lancaster Road in said Sudbury. The principal area of the proposed development, exclusive of the proposed way within it, is about 18.51 acres which the plaintiff proposes to subdivide into six house lots. The site is reached by a fifty foot wide way approximately two hundred fifty feet in length running from the public way, Old Lancaster Road and constituting the neck of the parcel. The land abutting the way formerly was owned by the plaintiff's predecessors in title, and it is unclear from the evidence whether the fee or only an easement was reserved when the abutting lands were conveyed. The subdivision way is a continuation of the existing access way from Old Lancaster Road, is called Plantation Circle and ends in a turnaround approximately eight hundred feet from Old Lancaster Road.
2. The proposed subdivision is shown on a plan entitled "Definitive Subdivision Plan Green Hill Estates in Sudbury, Mass. Owner & Applicant Alton F. Clark" dated July 11, 1986, by Colburn Engineering, Inc. (Exhibit No. 2) consisting of five sheets.
3. The site has no distinguishing topographical features other than the pervasive wetlands which affect a large area situated principally southerly of Plantation Circle and westerly of its terminus. There is, however, an area of wetlands situated immediately northerly of the proposed way approximately five hundred feet from Old Lancaster Road (Chalk A).
4. The Plan shows six large lots of which the smallest is 1.62 acres (70,717 square feet) and the largest, 6.31 acres. Since the zoning requires minimum lot sizes of 40,000 square feet, the proposed lots all are easily in compliance.
5. There is only one area of the locus which is suitable for septic systems, and the proposed grouping thereof is shown on Exhibit No. 4. They are located, however, on separate lots which has led to the unusual lot configuration which does meet the requirements of the town by-law on so-called pork chop or rattail lots. The Board of Health has approved the Plan (Exhibit No. 10) and the unusual septic system design despite the Planning Board's opposition. Some of the systems are at a distance from the houses which they serve and may require easements of access as well as for pipes and other appurtenances (Exhibit No. 4).
6. The properties of the Roman Catholic Archdiocese and of Dr. and Mrs. Fitzgerald which lie westerly of locus already suffer drainage problems. This issue, however, is not before me since the engineer for the plaintiff and the Town hope to resolve any impact from this subdivision by agreement.
7. The Rules and Regulations of the Planning Board (Exhibit No. 5) provide in Section VB 4 for the length of dead-end streets as follows:
4. Dead End Streets
A. Dead-end streets, whether temporary or permanent, shall not be longer than 500 feet, unless, in the opinion of the Board, a greater length is necessitated by topography or other local conditions. A dead-end street is any street or way or combination of streets or ways having only one terminus at a through street. A through street is a street that has two completed and useable ways of access.
8. While there are grounds for disagreement as to whether "topography" as used in the regulations includes the presence of wetlands, the latter clearly comprise "other local conditions".
9. A dead-end street of five hundred feet and its turnaround would fall within an area of wetlands although there appears to be an island of solid ground within the wetlands at this particular location. An eight hundred foot way (another length frequently adopted by planning boards) would be without the wetlands and thus would avoid this environmental problem although the crossing of the wetlands would require Conservation Commission approval.
10. The prior town engineer, now deceased, approved a waiver of the five hundred foot limit to dead-end streets, but the present town engineer, a witness, has not. He gave no reason for his disapproval other than the lack of any affirmative reason for relief. The Sudbury Fire Chief also found the plan acceptable (Exhibit No. 17) subject to the following conditions:
1. Relocation of the proposed fire hydrant or the addition of a second hydrant - my preference is a relocation.
2. If long driveways are required they should be a minimum 16 feet width built to the standards as specified by the Town Engineer.
3. Common driveways not be allowed.
4. No underground storage of flammable liquids.
The Fire Chief also consistently has been opposed in any event to a regulation limiting the length of dead-end streets - cul-de-sacs (Exhibit No. 5). At the time of the adoption of the present regulation he was prepared to support an alternate regulation which either limited the length or required the installation of a residential sprinkler system in homes built on a way in excess of five hundred feet.
11. The plaintiff does not plan personally to develop the subdivision. Accordingly she has made no decision as to whether access to Lots 5 and 6 will be across their frontage or whether they will be reached by a long rattail portion of the lot and with an easement across either Lots 3 or 4. Sudbury has no regulations concerning driveways or common driveways, and such a route to the homes to be constructed on Lots 5 and 6 might be more desirable than crossing the wetlands which intervene between Plantation Circle and the rear of the two lots.
12. The approval of the plan by the Fire Chief as set forth above was conditioned on the Planning Board's not allowing any common driveways in this neighborhood although his testimony at the trial was not opposed to common driveways as such so long as the turning radius was adequate and the homes have a residential sprinkler system. The identity of the occupants of each house also should be made clear so that if emergency vehicles must take a tortuous course, their destination is apparent so that crucial minutes will not be lost. The position of the Fire Department at the time that the proposed maximum length was under consideration by the Planning Board was to leave the length indeterminant so long as there was a condition that the water main be looped and that there be adequate turning radius in cul-de-sacs.
13. There have been several subdivisions recently approved by the Planning Board in which waivers were granted of the maximum length of the dead-end way. In some, but not all, of such situations the developer made a contribution to the town. For example, in a subdivision known as Meadowview Knoll the decision recites a gift of a parcel to the Town of Sudbury for the purpose of open space conservation (Exhibit No. 7). In a second development, Algonquin Oaks, the Selectmen, as distinguished from the Board, had negotiated a conveyance of land for a well and requested the waiver. In others the gift was part of a settlement reached by a post board decision while appeal was pending. Finally special circumstances appear to have justified the waiver in a subdivision known as "Tall Pines" where three parcels were set aside for open space conservation and "passive recreation", two of which were to be conveyed to the Town, pursuant to a purchase and sale agreement between the Massachusetts Audubon Society Inc., as seller and Arthur T. Smith, as buyer/developer (Exhibit Nos. 8 and 22).
14. If the proposed length of Plantation Circle were to comply with the five hundred foot envisioned in the regulations, it would terminate on an island within the wetlands. It also would limit the number of lots which could be created from this large tract to three or possibly four. The principal problem with any reconfigurration of the lots is the location of the septic systems. It is clear from the evidence that the Planning Board disapproves of the massing technique, but that the Sudbury Board of Health within whose jurisdiction the ultimate decision falls takes a contrary position. If the way were to be shorter than five hundred feet, the developer might forfeit his right to one wetlands crossing.
15. The Conservation Commission originally supported a turnaround without the wetlands, but then the chairman reversed this position during a Planning Board hearing and appeared to support a turnaround in the very center of an area surrounded by protected lands as depicted on Chalk A.
Having made my own findings. I therefore turn to the two issues in dispute. It cannot be doubted since the decision of the Supreme Judicial Court in Corcoran v. Planning Board of the Town of Sudbury, 406 Mass. 248 (1989) that the primary responsibility for protection of wetlands within a subdivision rests with the Conservation Commission and the Department of Environmental Protection. When an "Approval Not Required" ("ANR") plan is under review by a planning board, it cannot refuse the appropriate endorsement if there actually is access to the lots from an approved way. In a situation like that presently before the Court where it is clear that a new way is being created which requires planning board approval, there may be some latitude for the Board to consider the preferred method of access even though the ultimate approval rests with another body; however, the principal issue in the case now before me rests not with access across the frontage but with the length of the dead-end way as the Planning Board did not press the Corcoran aspect of the plan. The courts have justified the imposition of a regulation on the length of dead-end ways as a method of protecting the occupants of the subdivision from a blockage which might bar emergency vehicles such as fire engines and ambulances. See Wheatley v. Planning Board of Hingham, 7 Mass. App. Ct. 451 (1979). Appeal after remand 10 Mass. App. Ct. 884 (1980). In Francesconi v. Planning Board of Wakefield, 345 Mass. 390 (1963) the Supreme Judicial Court had insufficient evidence before it to decide whether such a regulation was constitutional as applied to the plaintiff's property. The length of the dead-end way in Francesconi was about nineteen hundred feet, and the court did hold that the length could be regulated. The decree of the Superior Court was reversed and the matter remanded to it for fuller development of the facts. It is interesting to note that Chief Justice Wilkins suggested alternate methods of meeting the town's concerns.
Many planning boards continually waive their requirements as to maximum length, a practice which either ultimately may lead a court to conclude that the regulation is no longer in effect or alternatively to hold in a result comparable to that in Colangelo v. Board of Appeals of Lexington, 407 Mass. 242 , 246 (1990) that when a waiver is denied one owner and granted to many others the action in refusing a waiver is arbitrary and unreasonable.
In the present case the Planning Board is faced with a subdivision covering an extensive area of land to be divided into a few large lots; ecologically the property does have extensive wetlands with the only soil suitable for percolation concentrated in the easterly and southeasterly portion of the tract. Accordingly, it is very difficult to subdivide the locus and avoid injury to the environmental features of the tract without a waiver of the length of the dead-end street. From the evidence and arguments at the trial the Court has concluded that the Board may have been of the opinion that it was limited to topographical features as a reason for granting a waiver whereas in fact the wording of the regulation is broader and permits a waiver for other local conditions. To apply the five hundred foot limit to locus on the facts I have found may be constitutionally infirm as suggested in Francesconi.
On all the evidence therefore I am remanding the matter to the Planning Board to reconsider its decision in the light of my findings and in particular to consider again a waiver of the length of the dead-end street. The Board must, however, defer to the Board of Health on the question of the location of the septic systems and may not deny the waiver as a screen for its opposition to this aspect of the development or to the unusual shape of the subdivision lots which comply with the by-law. Since these two elements are not within the Board's concern, the Board again should review the proposed subdivision and consider the grant to the plaintiff of a waiver of the regulation mandating a maximum length of five hundred (500) feet for a dead-end way. Accordingly I am remanding the matter for reconsideration.
[Note 1] Originally the plan was presented to the Planning Board by the parents of the plaintiff, Alton F. Clark and Helen Clark. On Mr. Clark's death the locus was conveyed to his widow and daughter as trustees of the Clark Family Trust. Helen Clark has since died, leaving Elizabeth Barrington as the sole trustee and plaintiff.