Home HAROLD NAHIGIAN, as he is Trustee of Tracer Lane Realty Trust vs. JUDITH UHRIG, ET AL, as Members of the PLANNING BOARD OF THE TOWN OF LEXINGTON.

MISC 128641

May 30, 1990

Middlesex, ss.




Harold Nahigian, as trustee of Tracer Lane Realty Trust, appeals from a decision of the Planning Board of the Town of Lexington disapproving a definitive subdivision plan entitled "One Tracer Lane" dated October 23, 1987 and consisting of sixteen sheets (Exhibit No. 10) (the "Plan"). Of the area shown on the Plan 29.84 acres are situated in Lexington and 8,121 square feet or 0.186 acres are situated in Waltham, both in the County of Middlesex. The Lexington land is an island separated from the remainder of the town by Routes 128 and 2, both state highways. The access to the property from a public way is entirely within Waltham with the locus being reached from Trapelo Road over a private way known as Tracer Lane 50 feet in width which presently ends in a cul-de-sac but from which a way continues to terminate at the plaintiff's property boundary. The plaintiff plans to extend the lane into locus for a distance of approximately 427.35 feet adjacent to the Route 128 right of way and to which there is no access and to provide a turnaround at the end of the way. The actual access to the property will be by a bridge over the wetlands which will run from the existing Tracer Lane cul-de-sac to the new cul-de-sac on locus continuing as a driveway to the planned location of the building; it will be somewhat less than twelve hundred feet in length. (See sketch of locus and surrounding area admitted at trial as Chalk A, attached here as Appendix "A".)

The Lexington Planning Board by a decision dated June 20, 1988 disapproved the plaintiff's plan.

The plaintiff also has filed a second complaint pursuant to the provisions of G.L. c. 240, §14A in which he attacks the zoning of the rear portion of his locus as residential as well as the validity of the method by which the floor area ratio is to be computed. Not surprisingly the Town counters that the zoning law is valid and that the exclusion from the land within the formula used in computing the floor area ration is logical and neither arbitrary nor unreasonable.

A trial was held at the Land Court on January 30 and 31, 1990, both actions having been consolidated for trial. At the trial a stenographer was appointed to record and transcribe the testimony. The witnesses who testified were the plaintiff, Harold Nahigian, and Roger Kallstrom, a site planner employed by Symmes, Maini, and McKee. The defendants' witnesses were Robert A. Bowyer, a city planner and the planning director of the Town of Lexington and Carol J. Thomas, a land use planner. Thirty-one exhibits were introduced into evidence together with two chalks, all of which are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows, both as to the statutory appeal and as to the question of the validity of the zoning by-law as applied to the property in question:

1. The plaintiff, as trustee as aforesaid, is the owner of the site which as noted in the introduction comprises 29.84 acres situated in Lexington and 8,121 square feet or 0.186 acres more or less in Waltham. The site is bounded easterly by Route 128, northeasterly by the ramp leading from Route 2 to Route 128, northwesterly, northeasterly and northerly by land of the City of Cambridge constituting a portion of its water supply, westerly by land now or formerly of the Town of Lexington and being the Hobbs Brook Reservation, and southeasterly by land of sundry adjoining owners in Waltham. The access to the site is from Trapelo Road in Waltham over an existing private way known as Tracer Lane which leads across the property of third parties to the site. Technically, Tracer Lane may end at a turnaround southerly of the locus from which there is a fifty foot right of way continuing northerly to the plaintiff's southerly boundary over which there are rights appurtenant to the locus. There is no other appurtenant right to use any part of the adjoining property whether through the parking lot of the existing office buildings or otherwise as an alternate access.

2. The access from Tracer Lane to Trapelo Road in Waltham and from Trapelo Road onto Route 128 admittedly is subject to constraints. The traffic expert employed by the plaintiff made recommendations as to alleviation of these problems, but the plaintiff has not as yet made any undertaking as to possible resolution of the impact of increased traffic. It is planned to explore mitigating measures with the Waltham Planning Board in which city Tracer Lane and access to the public ways are located rather than with the Lexington Planning Board since Lexington is not immediately affected.

3. There are extensive wetlands on the site for which provisions must be made both in access to it from the south and proceeding northwesterly from that portion closest to 128 to a large trapezoidal area to the northwest. The easterly portion of the site presently is zoned as CRO, an office and research park district comprising about 11.74 acres and the more westerly portion of the locus, the trapezoidal area comprising about 18.90 acres, is zoned as RO, a residential district. The entire parcel originally was zoned as residential from the inception of zoning in Lexington until 1970 when at the behest of the plaintiff's predecessor in title a portion of the premises was rezoned. The original article as it appeared in the warrant would have rezoned the entire locus to a new C-R office and research park district, but the Planning Board in making its recommendation to the town meeting recited that "a lesser area than that requested by the developer be rezoned to CR at this time and move to amend the article accordingly. In the event no progress is made within a reasonable period of time by DNR (Department of Natural Resources] and the MAPC (Metropolitan Area Planning Council] with respect to the disposition of the remainder of the land, the Planning Board would recommend that consideration of further rezoning would be appropriate."

4. The Planning Board's report describes the location of the property as being isolated from the rest of Lexington by Route 128 and Route 2 with access being solely through Waltham. The locus abuts commercially zoned land in Waltham in part and in part a residentially developed neighborhood in that city. It also abuts the Cambridge Reservoir. It is crossed by a Boston Edison power line easement which is 250 feet in width in which it appears no homes may be erected. The Planning Board in recommending the rezoning of the easterly part of locus stated in the report which is Exhibit No. 26 as follows:

Office and research park use of the portion of this district lying along Route 128 is in keeping with adjacent land use in Waltham. The Planning Board believes that residential use of the land would be undesirable because of the difficulties involved in providing town services, police and fire protection, and busing for school-age children. The only other appropriate use would be for conservation and recreation purposes.

The report then went on to detail a meeting between representatives of the Planning Board, the Cities of Cambridge and Waltham, the Department of Natural Resources and the Metropolitan Area Planning Council at which there was discussion as to whether the Commonwealth acting through its Department of Natural Resources would purchase the westerly portion of the locus; that has never been done.

5. In accordance with the Planning Board's recommendation the 1970 adjourned town meeting held on April 1, 1970 rezoned that portion of the locus which lies easterly of the point where the town line intersects the northerly side line of the Boston Edison Company right of way (Exhibit No. 27A). The area which was rezoned shows on Exhibit No. 27B as comprising about 11 acres. That part of the right of way of the Boston Edison Company within the plaintiff's property (for which the then owner was reimbursed) is situated in the residential portion of the locus.

6. In 1986 the defendant Planning Board rewrote its rules and regulations to incorporate in one set of so-called "Development Regulations Town of Lexington", the various rules, regulations, procedures and fees which the Planning Board formerly promulgated in separate documents such as "'rules and regulations govern the subdivision of land in Lexington, Mass.', 'rules and regulations for special permits', 'guidelines and policies for petitions for RD, CD zoning amendment', 'policy on construction standards from accepted streets, relative to building lots' and sections of the Board's 'procedural rules'". There are no provisions in the Development Regulations which specifically apply to the approval of a definitive subdivision plan for commercial projects. There is found within the regulations under application requirements and procedures a section 5.3.7 entitled "definitive subdivision plan for commercial, industrial or other non-residential development ", but it is labeled "(reserved)". There is a similar subsection 5.4.6 identically entitled and marked "(reserved)". In each instance no regulations appear. The other regulations refer to terms which are not found within the parameters of the subdivision control law, G.L. c. 41, §81K " et seq. There are phrases such as "proof plan", "sketch plan", "preliminary site development plan", and "definitive site development plan" employed in the regulations which are unfamiliar even to those grounded in this field. There is no clarification within the regulations as to whether these terms refer to preliminary subdivision plans and definitive subdivision plans as used within the statutory framework or whether they refer to so-called site plans which have a completely different standard of review. A portion of the regulations which relate to matters commonly found in planning board rules and regulations is section 6 entitled "design standards"; however, section 6.1 refers to all lots on "the plan" without defining what encompasses the plan within the meaning of section 6.1. Within this section of the regulations is found the standard on which the Planning Board relied in disapproving the subdivision plan with the current commercial project. It is section 6.5.6 which limits dead-end streets to 650 feet "on center line from the near line of intersecting through street to the end of the turnaround, and shall be provided at the closed end with the turnaround having an outside line diameter of at least 120 feet".

7. The plaintiff intends to build through the medium of a one lot subdivision a three story office building on the locus. The floor area ratio in the zoning by-law as it read when the preliminary subdivision plan was filed was 0.25. The definitive subdivision plan was filed after the adoption by the town meeting but within the seven month period mandated by G.L. c. 40A, §6. The new FAR as adopted by the town is .15. The town does not dispute the applicability of the floor area ratio of 0.25 to the plaintiff's project, but nonetheless comments adversely on the actions of the plaintiff in taking advantage of the longest possible statutory extensions. The floor area ratios were expressed in two different ways: net floor area, which excludes stairwells, air and elevator shafts and other similar seldom used areas, and is not allowed to exceed 80 percent of gross floor area which constitutes the entire building. In addition, the by-law sets forth certain land areas which, if occurring on site, are excluded from the equation thus effectively reducing the size of a proposed structure. The application to the locus of the new floor area ratio with the exclusions found in the by-law would permit a building of only 34,957 net/43,696 gross square feet on the 30 acre locus compared to one of 58,262 net/72,827 gross square feet under the old FAR but with the by-law exclusions, or of 333,670 net/417,087 gross square feet without the exclusions.

8. Section 2 of the Lexington Zoning By-law applicable to the Plan (Exhibit No. 20) defines "Floor Area Ratio (FAR)" in this way: "The ratio of the sum of the net floor area of all buildings on a lot to the developable site area of the lot". Section 7.9.1 of the by-law in turn defines Developable Site Area as follows:

a. The developable site area shall be calculated by subtracting from the lot area, all land which is located in:

1) a wetland, which shall mean a "vegetated wetland" as defined in Chapter 131, Section 40, M.G.L.

2) a Wetland Protection zoning district, and

3) another zoning district in which the principal use of the lot is not also permitted.

The current zoning by-law (Exhibit No. 23) rewrote the exclusionary language to vary subparagraph 1) as follows:

a wetland, which shall mean a 'freshwater wetland' as defined in Chapter 131, Section 40, M.G.L. or land located under a brook, creek, stream or river or pond or lake . . .

9. The subdivision for which the plaintiff sought approval contemplates the erection over the wetlands of a bridge approximately twelve hundred feet in length. From Trapelo Road to the end of the cul-de-sac on the plaintiff's property is approximately 2,425 feet. The bridge will be built in accordance with the standards of the Massachusetts Department of Public Works. From the sides of the bridge would be suspended conduits for the utilities. The bridge is "an extraordinarily expensive way" of crossing the wetlands and technically from the end of the cul-de-sac which gives the project its frontage, constitutes a driveway situated on the plaintiff's property. The bridge would be constructed of concrete and would be 32 feet wide from outer edge to outer edge with a travel lane 24 feet in width. The plainiff requested waivers of the Planning Board's rules and regulations as to each of these measurements, the length of the dead-end way, the width of the bridge and the traveled portion and the placement of the utilities. The plaintiff proposes to clear snow from the bridge with a front end loader which would pick the snow up and deposit it at the north end of the bridge. No salt would be used since the bridge crosses wetlands. The design for the disposal of sewage uses a stage process in which it is pumped to two successive tanks and ultimately into the sewer in Waltham. Water will be fed to the site through an insulated pipe also suspended from the bridge, equipped with a circulating pump which will maintain the flow and prevent the exposed pipe from freezing in harsh winter temperatures. The bridge would be constructed by having the pile driver on the bridge which would move as construction proceeds, the method used in reconstructing a similar type bridge in Duxbury. The bridge would be built on concrete pilings.

10. The Waltham Director of Public Works granted the plaintiff permission to make water and sewer connections from existing utilities in Tracer Lane to the proposed development with work thereon being subject to approval by the Waltham Public Works Department and with respect to sewer service, by the Massachusetts Water Resources Authority. Subsequently, a question was raised in the Waltham City Council as to the propriety of the City of Waltham furnishing services to an owner of land without the city, but any question raised about it has died in committee and the administrative approval has not been revoked (Exhibit No. 15). The Waltham Fire Department by letter dated August 2, 1987 assigned a box number to One Tracer Lane in Lexington (Exhibit No. 17). Finally a permit was obtained from the Massachusetts Water Resources Authority acting through its division of water pollution control. The effective date of the permit was April 5, 1989 although the City of Waltham had approved the application much earlier, on May 21, 1987 (Exhibit No. 16).

11. The Planning Board stated several grounds for its disapproval of the definitive subdivision plan in its decision dated June 20, 1988. One reason, reiterated in three separate paragraphs, was the Board's position that the plaintiff had failed to demonstrate a satisfactory way that all necessary facilities and services were to be provided. Paragraph 4 read as follows:

The applicant has failed to present indisputable (added) documentation that such essential public services as water supply, sanitary sewer service and fire protection will be provided by the City of Lawrence as he contends. In the absence of an arrangement with the City of Waltham, the applicant has not provided alternative plans for the provisions of those services.

12. Essentially the same ground is set forth in paragraphs 1 and 2 of the decision. Another reason given by the Planning Board for its decision was the capacity of the intersection of Tracer Lane and Trapelo Road to absorb additional traffic. The intersection is within Waltham, and it primarily is the concern of that community to weigh the traffic impact and any required mitigation. The intersection of Trapelo Road and Route 128 also is a concern for planners, but the burden of solving the backups rests first with the Commonwealth and then with Waltham. Lexington is situated on the far side of the Circumferential Highway, and as to properties west of the road would have a legitimate interest.

13. One of the principal reasons for the Board's denial of approval was the length of the proposed access route. The decision points out that the distance from Trapelo Road to the town line is 1,900 feet, from the town line to the end of the turnaround on the proposed subdivision street, about 525 feet, for a total of 2,425 feet, nearly one-half a mile, and the distance from the end of the turnaround to the existing end of the turnaround of Tracer Lane adjacent to the so called GENRAD building is about 1,025 feet. The Planning Board was of the opinion that the public safety risks generated by a long dead-end way were an important consideration in the present case because "(1) the presence of substantial floor space and numbers of people in Waltham at the Reservoir Place and GENRAD complexes, which are served by the same dead-end road, and (2) the use of a bridge across wetlands as part of the access. If access across the bridge is blocked safety vehicles, or even personnel on foot, cannot readily bypass the blockage because they would have to pass through the wetland".

14. Concern also was expressed by the Board for the Cambridge Water Supply which is located in an adjacent reservoir.

15. The locus abuts Route 128 for a considerable distance. There was controverted evidence at the trial as to whether there were guardrails in place which would block emergency vehicles from reaching the building on the locus if access across the bridge should be blocked. Three reputable witnesses disagreed on the presence of the guardrails, and the aerial photograph is inconclusive. It was not established therefore that vehicles at present (and with the trees removed) could reach the site. In addition, each party recognizes that the Commonwealth does not permit access across the frontage on limited access highways such as the Circumferential Highway, not even in cases of emergency. The issue at trial, however, revolved around the presence of access in fact if there should be dire need of it. It should be remembered, of course, that this is not a residential subdivision, but a one lot commercial subdivision and that the contemplated buildings will be used for office purposes. If the buildings have sprinkler systems, then the possibility of both the access being blocked and a threatening fire occurring simultaneously seems remote. In any building with a number of employees, greater people population than in single family homes, life threatening injuries or medical incidents do occur, and access over a two lane bridge might on some occasion be blocked. There must be a balancing, however, of the likelihood of this happening as against the plaintiff's right to use his property. The opportunity to access the locus from Route 128 during an emergency also dispels the rare chance of a catastrophic blockage. In weighing the likelihood of injury the factors to be considered include access by a bridge, the sprinkling of the office building, the occupancy thereof only during normal working hours, the possibility of reaching property from Route 128, from an area behind the GenRad building or in the event of medical emergencies by helicopter.

16. The rear portion of the locus has remained residential since the front part was rezoned by the town meeting. The purchase by the Commonwealth did not materialize, and accordingly the portion of the plaintiff's land which is subject to the more limited zoning, that is, is in the RO District, has severe access problems, both legally and practically. There is a wetland intervening between the two zones which would require approval by the Conservation Commission and the Department of Environmental Protection to fill with a compensatory wetland being established which, in view of the main access limitations, appears unlikely to happen. The defendant Planning Board points to the location of streets in Waltham where the land adjoining this part of the plaintiff's property also is residentially zoned. It is unclear whether any of the streets are public ways. If they are not, then it would be overburdening the easement for the developer to acquire a house lot between the Waltham private way and his land in order to afford access. The Board's position also assumes that there is an owner in Waltham abutting the plaintiff's property who would be willing to sell if the price he were paid was sufficiently large. There may also be a public way within the land lying southerly of the residentially zoned portion of the plaintiff's property. There was no evidence as to how far the terminus of the public way was from the locus and what intervenes between it and the plaintiff's land.

17. Permitted uses in the CR district do not include any residential uses other than in certain congregate living facilities. Certain accessory uses do appear to be allowed, but it is unclear whether access is included as interpreted by the Zoning Board of Appeals. A variance or special permit therefore might be required to cross from the front portion of the locus to the northwest area. The town points out that nonetheless the plaintiff paid a substantial price for the entire parcel and has not sought an abatement for the residentially zoned portion. However, in Lexington the commercial areas are zoned at a different rate than that applicable to residences.

18. There is a Boston Edison Company right of way 250 feet in width which crosses the residential part of the parcel and upon which homes cannot be built. A predecessor in title was paid compensation by the Edison at the time the easement was granted to the company. The Planning Board inconsistently argues that the presence of the easement increases the likelihood of blockage of the access road on the one hand and on the other the Board does not view it as an impediment to the construction of homes in the residentially zoned part of the property either in a conventional grid pattern or using the cluster zoning by-law.

19. The current Lexington Zoning By-law requires a landscaped transition and screening area of fifty feet between the CRO and RO zones (Exhibit No. 23, §10.3), but this provision does not appear in the applicable earlier by-law and thus would not affect the present development. The Town also contends that the land upon which the Route 128 was laid out remains residentially zoned. This is an error. The Commonwealth owns the fee within the layout of 128, and the Town zoning laws do not apply to land of the sovereign state. Accordingly the by-law setback provisions from a residential district do not affect the plaintiff's property, and it would be illogical in any event to apply them.

20. The Board of Health disapproved the Plan because of uncertainty relative to sewer disposal. The issuance of the permit by the DWPC (Exhibit No. 16) has eliminated this ground, and the Board of Health was not considered a factor in the trial.

The rule as to the role of the Planning Board is not difficult to enunciate. The Board must approve a proper plan which complies with its rules and regulations and to the recommendations of the Board of Health. Mac-Rich Realty Construction, Inc. v. Planning Board of Southborough, 4 Mass. App. Ct. 79 , 85-86 (1976). On appeal from a decision of the Planning Board the Trial Court hears the matter de novo, makes its own finding of facts and conclusions of law and then determines whether the Planning Board has erred. See Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 (1977). The rules and regulations of the Planning Board must be sufficiently definite so that the developer will know what is expected of him and what standards and procedures will be applied to him. As the Supreme Judicial Court said in the leading case on the subject Castle Estates, Inc. v. Park & Planning Board of Medfield, 344 Mass. 329 (1962), "without such regulations, the purposes of the law may easily be frustrated".

The Planning Board of Lexington by including within one comprehensive document and without differentiation the regulations relating not only to subdivision plans but to site plans and special permits has failed to distinguish between the applicability of each set of regulations to the project under consideration. For that reason and the difficulty even for experienced students of planning board regulations such as myself, the regulations are so confusing that it is impossible to determine which are to apply to any particular plan. This difficulty is compounded by the failure of the regulations to use the statutory subdivision terms so that it is unclear in any particular instance whether the Planning Board is referring to site plans or to subdivision plans. It is further compounded in the present instance by the reserved sections which particularly relate to commercial subdivisions so it is possible that the Planning Board in drafting the rules and regulations did not intend that commercial subdivisions be subject to them. The proliferation of unanswered questions leads me to find and hold that the so called development regulations of the defendant do not meet the Castle Estate standard and must be held to be invalid. Chira v. Planning Board of Tisbury, 3 Mass. App. Ct. 433 , 438 (1975).

It is apparent that the land shown on the definitive subdivision plan is a subdivision only to obtain sufficient frontage on the subdivision road to meet the requirements of the Lexington Zoning By-law and that it is comprised of one lot only. The Board seemed unduly influenced in making its decision by the protection afforded the plaintiff by G.L. c. 40A, §6 so that the extensions which it granted enabled the plaintiff to secure the benefit of the prior zoning by-law for floor area ratio even after the town meeting voted to reduce it. The action of, the plaintiff was within the permission granted by the statute and by the Planning Board and should not be the subject of castigation by the defendant.

On all the evidence therefore I find and rule that the rules and regulations of the defendant Planning Board do not meet the standard required by the decisions of the Supreme Judicial Court and the Appeals Court and that they are confusing and do not apprise the developer of the requirements which he may have to meet. Accordingly I find and rule that they are invalid and cannot be enforced against the plaintiff even if they are intended to apply to a commercial subdivision which there is strong evidence may not be the case.

The conclusion I have reached makes it unnecessary for me to consider whether the failure of the Planning Board to waive the regulation as to length of a dead-end road is constitutionally infirm, particularly in the absence of any other access. See Francesconi v. Planning Board of Wakefield, 345 Mass. 390 (1963). I also do not reach the question as to whether it is only the length of the way in Lexington which is relevant, or whether the Board is empowered to consider Waltham traffic problems and the protection of Cambridge water. See Chira, supra. M. P. Corp., Trustee v. Planning Board of Leominster, 27 Mass. App. Ct. 812 , 819-820 (1989); Corcoran v. Planning Board of Sudbury, 406 Mass. 248 (1989).

The question arose at the trial as to whether the Court should judge the Planning Board's decision on the facts existing at the time of trial or at the time of its decision. For example, the sewer permit was not issued by the authority until after the Planning Board's decision but before the trial. Since the procedure followed in appeals pursuant to G.L. c. 41, §81BB is a trial de novo with the Court's decision resting on the evidence presented to the Court, it follows that it is the situation existing at the trial that governs. In the example I have given, however, the reason given by the Planning Board for disapproval grounded in the sewer system was moot by the time of the trial, and it was no basis for upholding its action.

The Planning Board at the time of the rezoning of the easterly portion of the locus to a CRO district suggested that if the back portion were not acquired for conservation or recreation purposes, its zoning should be reconsidered. So far as it appears from this record, there has not been a subsequent attempt to rezone the RO zoned portion of the property. The plaintiff claims that he is unable to make any use thereof in the light of the wetlands to which the property is subject, the lack of access through Waltham, the possibility that Lexington Zoning By-law will not authorize an access over CRO land to reach the residentially zoned property, the presence of the all enveloping Edison easement. He further points out that even if the difficulties were overcome, provision for the furnishing of services would have to be obtained.

The rule is well settled as to the presumption of validity of municipal ordinances and by-laws with every presumption being given to the validity of a zoning by-law or its amendment. If it's reasonableness is fairly debatable, it must be upheld. Caires v. Building Commissioner of Hingham, 323 Mass. 589 , 594 (1949). Crall v. Leominster, 362 Mass. 95 , 101 (1972). There are instances, however, where the zoning by-law as applied to a particular piece of land is arbitrary and unreasonable, and the present instance seems to fall within this category. The nature of the locus, its location and physical and access disabilities brings the plaintiff's land within the rule of Barney and Carey Co. v. Milton, 324 Mass. 440 , 449 (1949). The exercise of the police power deprives the plaintiff of the reasonable use of his land. Jenkes v. Building Inspector of Brookline, 341 Mass. 162 , 166 (1960); Addison-Wesley Publishing Co., Inc. v. Reading, 354 Mass. 181 , 186 (1968); Massachusetts Broken Stone Company v. Town of Weston, Land Court Miscellaneous case No. 119905 citing two previous decisions affecting the same property. It is no answer for the town to say that access may be obtained through the City of Waltham, for the availability of such access is speculative. See Callan v. Town of Reading, Land Court Miscellaneous Case No. 116815 affirmed 23 Mass. App. Ct. 1108 (1987). The Court is not attempting to usurp the function of the Lexington town meeting, and the decision herein does not rezone the residentially zoned portion to a CRO district but rather leaves it unzoned for the attention of the town meeting. It does, however, eliminate the restrictions imposed on the floor area ratio as it presently appears in the zoning by law so far as they relate to land in a different zoning district. The definition of developable area also appears arbitrary and unreasonable since the purpose of the floor area ratio is to lessen the density of development and the area excluded from the determination cannot be built upon in any event and would logically be included in the base. The Court need not reach that decision, however, because the Court finds and holds that the application of the residential zoning district to the locus after the easterly portion had been rezoned to CRO was arbitrary and unreasonable and cannot stand.

In Miscellaneous Case No. 128641 the matter is remanded to the Planning Board to approve the Definitive Plan. In Miscellaneous Case No. 134529 a judgment will enter declaring the residential zoning as applied to locus invalid.

Judgment accordingly.

exhibit 1

Appendix A