MISC 129758

October 17, 1990

Essex, ss.



Shirley Federline, Trustee of Woodlane Realty Trust, the plaintiff, appeals pursuant to the provisions of G.L. c. 41, §81BB from the denial by the defendant Planning Board of the City of Beverly (the "Board" or "Planning Board") of approval of a Definitive Subdivision Plan of Wood Lane dated February 24, 1988 by Hancock Survey Associates, Inc. (the "Plan") (Exhibit No. 14). The defendant in its answer included certain affirmative defenses which have not been argued and are not further considered herein. The Board's position is that it acted reasonably and in accordance with law.

A trial was held in the Land Court on August 17, 1990 at which a stenographer was sworn to record and transcribe the testimony. Three witnesses testified: James A. Miller, the plaintiff's representative before the Beverly Planning Board, and Richard Jutras, Captain of the Beverly Fire Department were called by the plaintiff; Alan F. Taubert, former City Engineer and Public Works Commissioner for the City of Beverly and former consultant to and member and chairman of the Planning Board, was called by the defendants. Eighteen exhibits were introduced, some with multiple parts, which are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The premises shown on the Plan are owned by the plaintiff and contain approximately twenty-six (26) acres. The plaintiff has proposed a nine lot subdivision of which three lots will be situated on an enlarged cul-de-sac at the end of Connor Road, an existing public way and six lots on the proposed Meadow Glenn Road.

2. When the preliminary plan was filed, the Planning Board questionably refused to consider it until the Conservation Commission had acted. Ultimately the plaintiff obtained a superceding order from the Department of Environmental Quality Engineering ("DEQE"), now Department of Environmental Protection ("DEP") (Exhibit No. 3). Thereafter the Definitive Plan was submitted for approval, and for the first time the issues now before the Court were raised.

3. The Planning Board held four hearings at which the Plan was considered, and at the fourth, on September 6, 1988, denied approval. The decision of the Board appears in a letter from the City Planner to the City Clerk dated September 6, 1988 in which he recites three bases for the Board's action:

1. The two proposed dead-end streets shown as "Connor Road Extension" and "Meadow Glenn Road" both exceed the maximum length allowed by Section IV.A.5.a. of the Planning Board's Subdivision Rules and Regulations (maximum allowed length is five hundred feet);

2. The Beverly Fire Department has stated that the subdivision plan does not meet the minimum water flow requirements of the City of Beverly. The minimum requirement is 1,000 g.p.m. at 20 p.s.i.; the developer's consultant has reported that the flow within the proposed subdivision is 325 g.p.m. at 20 p.s.i.; and

3. The corner radii within this subdivision do not meet the minimum requirements listed in Section IV A. of the Planning Board's Subdivision Rules and Regulations.

4. The rules and regulations governing the subdivision of land in Beverly (Exhibit No. 13) provide in Section IVa (5):

Dead-end streets. For the purposes of this section, any proposed street which intersects solely with a dead-end street shall be deemed to be an extension of the dead­end street. Dead-end streets and their extensions, if any, shall not be longer than 500 feet (500 ft.) (measured between the sideline intersecting street and the center of the turnaround) unless in the opinion of the Board, a greater length is necessitated by topography or other local conditions.

Such regulations customarily refer only to private ways and not to a public way into which category Connor Road falls.

5. The Plan shows, and the parties do not dispute, that Connor Road, a public way presently exceeds five hundred feet in length and ends in a cul-de-sac with a fifty-five (55) foot diameter of the cul-de-sac which it is proposed to increase to ninety (90) feet which will lengthen the street by approximately one hundred eighty-five (185) feet.

6. The plaintiff propose that the principal subdivision way, Meadow Glenn Road, extend from Connor Road at a ninety degree (90) angle for approximately four hundred eighty-five feet (485'). The municipal authorities computed the length of Meadow Glenn Road as in excess of one thousand feet (1,000') by measuring from the intersection of Connor Road and Standley Road (apparently a non-dead-end public way).

7. The Beverly Fire Department regulations require a water flow rate of 1,000 Gallons Per Minute ("GPM") at a volume of 20 pounds per square inch ("PSI"). [Note 1] There was testimony by Fire Department Captain Jutras that the water pressure in the area is a chronic problem and as shown in the Firepro, Inc. report to Hancock Survey Associates, Inc. (Exhibit No. 12), the water levels in the development would be 325 GPM at 20 PSI. Expert testimony established, however, that looping of a water main through a way from an adjacent subdivision would cure the deficiency; in addition a proposed water tower would also improve the water pressure by 25 to 30 pounds for the City overall.

8. On August 15, 1990 the plaintiff was granted an easement by Theodore P. Leigh et al, Trustees of Standley Street Realty Trust under a Declaration of Trust dated November 21, 1985 and recorded with Essex South District Registry of Deeds in Book 8011, Page 142 to connect and loop a water main connection from the existing water main in Eagle Lane to the existing water main on Connor Road (Exhibit No. 17). The grant provides that the work must be commenced within ninety days after the entry of final decision in this case but in any event within one hundred twenty days (120) from the date of the easement.

9. The Subdivision Rules and Regulations of the Planning Board contain no provision requiring adequate water flow for fire fighting or supply, and it is doubtful from the decided cases if they validly could do so.

10. Section IV.A .2.e. of the Beverly Planning Board Rules and Regulations requires a minimum 30 foot corner radii as measured at the lot line whereas the Plan shows a greater radii at the edge of the paved portion of the subdivision roads. In one instance, however, the plaintiff's proposal is governed by the existing layout of a public way and in the other by previous conveyances of lots on Connor Road. The Board was said to routinely waive this requirement, but evidence of any waivers granted to others was not introduced.

On appeal the Court is confined to the review of only those reasons for denial of approval as set forth in the Planning Board's decision. Canter v. Planning Board of Westborough, 4 Mass. App. Ct. 306 , 307 (1976). The trial is a de novo proceeding with the Court making its own findings of fact and then determining whether the decision of the Planning Board was arbitrary and unreasonable or in accordance with applicable law. The Planning Board in this action rested its decision on only the three grounds set forth above.

The first ground of the decision was based on the length of the extension of Connor Road and Meadow Glenn Road. This ground was inherently flawed since the Planning Board included within such category a public way, clearly without the proposed subdivision, when the rules and regulations necessarily relate to private ways, the primary focus of planning board concerns. By such a definition Washington Street in Boston, which is many miles in length would fall within the proscription. Even if the regulation applied to a public way, the term "sideline intersecting street" in the regulation is difficult to define. It is not, however, broad enough to encompass the application for which the City argues here. To do so would set the "sideline" at the nearest line of two intersecting public ways which could be, as here, wholly unrelated to the proposed subdivision. Accordingly I find and rule that the proposed subdivision roads do not exceed five hundred feet, that the Planning Board was in error in finding otherwise and its action exceeded its authority.

The second ground on which the Planning Board based its decision was the developer's failure to meet the minimum flow requirements of the City of Beverly. There are four sources on which the planning board may base its disapproval of a plan: on statutory provisions contained in the subdivision control law, its own rules and regulations, recommendations by the board of health, or, perhaps, local zoning enactments. Baker v. Planning Board of Framingham, 353 Mass. 141 , 144 (1967). Doliner v. Planning Board of Millis, 343 Mass. 1 , 6 (1961) citing G.L. c. 41, §81M. First, G.L. c. 41, §81M permits the enactment of local regulations "for securing adequate provision for water, . . . underground utility services; fire, police, and other municipal equipment . . ." (emphasis added). It is axiomatic that "the planning board may not disapprove a plan not shown to violate regulations of the planning board or the requirements of the board of health (citations omitted)." Canter, supra, 4 Mass. App. Ct. at 308. See also Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 , 178 (1977) where the planning board had not adopted a regulation governing the provision of water for the protection from fire and so could not base its disapproval thereon.

In fact there are several cases which question whether a planning board would have the authority to adopt such a regulation. See Daley Construction Co. v. Planning Board of Randolph, 340 Mass. 149 (1959); Mac-Rich Realty Construction, Inc. v. Planning Board of Southborough, 4 Mass. App. Ct. 79 (1976). Compare Fairbairn, supra, 5 Mass. App. Ct. at 178 n. 3. Section 81M, from which the board receives its power and section 81Q, its authority to adopt regulations are principally concerned with subdivision roadway layout and design. Where §81M language is ambiguous, for instance relating to protecting the public in case of fire, flood or panic, the "primary reference [is] to road design." Daley, supra, 340 Mass. at 153-154. "Read in context, the words 'securing adequate provision for water,' seem to . . . mean installation of an adequate system of water pipes rather than an adequate supply of water. " Id. at 154. In Daley, the subdivision had been disapproved out of a fear that it would exacerbate an existing local water shortage. Justice Cutter writing for the Court held that the mission of the planning board in passing on subdivision applications was outlined by §81M and that "the legislature, by the subdivision control law, thus far has not given the planning boards the power unconditionally to disapprove a subdivision plan because its execution would impose new demands upon a community's existing water supply." Id. at 156. See also Fairbairn, supra, 5 Mass. App. Ct. at 177.

The second reason for the Board's disapproval therefore also is defective. Such requirements do not appear in the Rules and Regulations of the Beverly Planning Board and therefore are not a valid ground for the Board's action. It is doubtful, in any event, that even if such regulation existed, it could be upheld.

Finally, the Board fastened on the radii of the corners of the subdivision roads. So far as Connor Road cul-de-sac extension is concerned, the radii are those of an existing public way, and thus the Board was in error in being critical of them. In any event, the proposed radii either meet or exceed the required minimum. So far as Meadow Glenn Road is concerned, the property lines already are fixed between land of the plaintiff and third parties. In addition, it would seem that the way must have been shown on an ANR plan of Connor Road. Accordingly it was arbitrary and unreasonable of the Planning Board not to waive requirement IV.A.2(e).

Therefore, on all the evidence and the law applicable thereto, I find and rule that the decision of the Planning Board was without its authority and not in accordance with law and direct it to approve the plaintiff's definitive plan.

Each party submitted requests for findings of fact and rulings of law, but having made my own I do not specifically thereon.

Judgment accordingly.


[Note 1] The Regulations are not in evidence, but Exhibit Nos. 10 and 11 make sufficient reference to the requirement.