MISC 128670

January 12, 1990

Essex, ss.



The Plairttiff, LandCor, Inc. ("LandCor") filed this action on July 8, 1988 seeking judicial review, pursuant to G.L. c.41, §81BB, of decisions of the Defendants, Gloucester Planning Board ("Planning Board") and Gloucester Board of Health ("Board of Health"), granting conditional approval to LandCor's proposed construction of a 25 lot, single-family residential subdivision on approximately 17.8 acres of vacant land located on 110 Concord Street in Gloucester ("Locus"). The matter was submitted to the Court on November 8, 1989 on briefs and a stipulation of agreed facts, oral arguments having been waived by counsel. Those facts which I find most pertinent hereto are incorporated in the findings set forth below.

On all of the evidence before the Court, I make the following findings of fact:

1. LandCor acquired title to Locus on December 18, 1986, said conveyance being evidenced by a deed duly recorded with the Essex South District Registry of Deeds.

2. On May 1, 1987, LandCor filed a Form B "Application for Approval of Preliminary Plan", and accompanying plans, with the Planning Board.

3. In November of 1988, LandCor filed its Definitive Subdivision Plan ("Definitive Plan" or "Plan") of Locus with the Planning Board. The Definitive Plan created 25 single-family residential lots on Locus and included provisions for the installation of both surface and subsurface drainage systems. The Plan also indicated the location of a common sewerage disposal system for the lots depicted thereupon, the parties having agreed that such system would allow certain lots to share a septic system situated on another lot.

4. On March 24, 1988, the Board of Health voted to recommend approval of LandCor's proposed subdivision, subject to certain conditions, the most pertinent of which reads as follows:

C. Title V Permits:

The Board of Health requests that the Planning Board endorse on the subdivision plan the following covenant:

"No dwelling shall be built on any lot or lots without first securing from either the Board of Health or DEQE, as appropriate, the necessary sanitary disposal works construction permits required by state Environmental Code, and any other applicable state or local laws. In addition, each lot of the subdivision shall have the capability to be served by an individual on-site subsurface sewage disposal system even if the intention is to create a large community sewage treatment system (emphasis supplied)."

5. At all times pertinent hereto, there were no Board of Health Rules or Regulations in effect which delineated the scope of such Board's review of subdivision plans, particularly with respect to the aforesaid subject of "common septic systems".

6. On June 20, 1988, the Planning Board unanimously approved LandCor's Definitive Subdivision Plan, subject to certain conditions, one of which reflects verbatim that proposed by the Board of Health on March 24, 1988 (See Finding No. 4 above) and another of which reads as follows:

The applicant will voluntarily contribute an amount of thirty-one thousand two hundred and fifty dollars ($31,250.)which is equal to $1,250 per lot, to the City of Gloucester to be used toward one or more of the following purposes:

a. conducting an independent engineering study to identify potential sites in West Gloucester for the construction of a municipal water facility which will serve and improve both water pressure and flow in the West Gloucester area;

b. acquisition of land in West Gloucester to serve as the location of the said water facility;

c. construction of a water facility in West Gloucester to improve water pressure and flow in the area. [Note 1]

The instant matter involves LandCor's appeal of these two specific conditions.

7. With the exception of those provisions relevant to the developer's making of off-site road improvements, the Subdivision Rules and Regulations for the City of Gloucester are silent as to any requirement that a developer contribute a sum of money per lot to the City for purposes of city improvements or benefits.

In appeals brought pursuant to G.L. c.41, §81BB, the developer bears the burden of convincing the trier of fact that the decision of the Planning Board exceeded its authority. Rettig v. Planning Board of Rowley, 332 Mass. 476 , 479 (1955); Mac-Rich Realty Construction. Inc., 4 Mass. App. Ct. 79 , 81 (1976); Canter v. Planning Board of Westborough, 4 Mass. App. Ct. 306 , 307 (1976). The trial is de novo and the duty of the reviewing justice is to hear all of the evidence, make independent findings and, on the facts so found, determine if the plan submitted to the Planning Board by the developer conforms to the reasonable rules and regulations of the Planning Board and to the recommendations of the Board of Health. G.L. c.41, §81M; Rettig at 479; United Reis Homes, Inc. v. Planning Board of Natick, 359 Mass. 621 , 623 (1971); Mac-Rich at 81; Strand v. Planning Board of Sudbury, 5 Mass. App. Ct. 18 , 23-24 (1977); Strand v. Planning Board of Sudbury, 7 Mass. App. Ct. 846 , 936 (rescript opinion).

In the instant matter, LandCor's Definitive Subdivision Plan was approved by the Gloucester Planning Board subject to certain conditions, two of which are at issue herein. The first condition, entitled "Title V Permits", was incorporated into the Planning Board's decision at the request of the Gloucester Board of Health. See G.L. c.41, §81U; Loring Hills Developers Trust v. Planning Board of Salem, 374 Mass. 343 , 348 (1978); Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 , 173-174 (1977). I find that the first portion of this condition, which prohibits LandCor's construction of any dwelling unit on any of the subdivision lots without the prior issuance of appropriate sanitary disposal works permits, to be within the scope of the Planning Board's given authority at this stage of the plan reviewing process. Fairbairn at 185. I find, however, that the remaining portion of this condition, which requires LandCor to ensure that each subdivision lot has the capability to be served by an individual on-site subsurface sewage disposal system, is beyond the authority of the Planning Board and must be annulled. Although it is true that applicable Board of Health Rules and Regulations are silent on the subject of "common septic systems", I do not annul this portion of the Board's grant of conditional approval on this basis, insofar as Board of Health regulations may rightfully supplement existing regulations when they are silent on a given matter. Independence Park, Inc. v. Board of Health of Barnstable, 403 Mass. 477 , 481 (1988). I find instead that this Planning Board's imposition of this requirement on LandCor is both "premature" and "unreasonable", inasmuch as it is relatively impossible at this stage of the subdivision's development to ascertain the location of each proposed dwelling and the number of bedrooms each will have. Fairbairn at 184. I find rather that the appropriate time for addressing such issues as location and construction of sewage disposal systems is the building permit/plumbing permit stage. Id. Accordingly, the Planning Board exceeded its authority in including such as a condition to its grant of approval to LandCor's such as a condition to its grant of approval to LandCor's Definitive Subdivision Plan.

By this action, LandCor also appeals that portion of the Planning Board's decision which requires Landcor to "voluntarily contribute" the sum of $1,250.00 per subdivision lot; for purposes aimed solely at benefitting the City of Gloucester. There are no explicit provisions contained in the Gloucester Subdivision Rules and Regulations which would adequately notify a developer in advance that such a financial burden could be imposed upon him as part of the Planning Board's grant of conditional approval to his subdivision. Castle Estates, Inc. v. Park and Planning Board of Medfield, 344 Mass. 329 , 334 (1962); Chira v. Planning Board of Tisbury, 3 Mass. App. Ct. 433 , 438-439 (1975); Fairbairn at 174. Moreover, I note that as G.L. c.41, §81Q precludes a Planning Board from imposing, as a condition to its grant of subdivision approval, a requirement that the developer convey land within his subdivision for any public purpose, there is, similarly, no authorization, explicit or otherwise, in either applicable Subdivision Rules and Regulations or the Subdivision Control Law, for the Planning Board's imposition of such an unreasonable "tax" upon LandCor, even under the guise of a "required voluntary contribution". See Young v. Planning Board of Chilmark, 402 Mass. 841 , 846 (1988). This condition is therefore annulled, as it exceeds the authority of the Planning Board.

The parties have stipulated that, in the event the Court finds for LandCor on the two issues appealed herein, certain "proposed granting subdivision approval to LandCor's project. In accordance with this stipulation, the "proposed conditions" set forth in Exhibit C, which is on file with this Court, are hereby incorporated into the decision of the Gloucester Planning Board.

Judgment accordingly.


[Note 1] All parties hereto have stipulated that LandCor did not consent to the making of such financial contributions.