PETER KEANE CONSTRUCTION, INC. [Note 1] vs. DANA CUNNINGHAM, DIANE M. SHEA, JOHN ACTON, JOHN STASIK and MICHAEL FABBRI, as Members of the PLANNING BOARD OF THE TOWN OF FRAMINGHAM.

The original plaintiff, Peter Keane (his corporation now having been substituted as plaintiff), sought approval from the Framingham Planning Board of a definitive subdivision plan, containing four lots and entitled "Walkup Circle, Framingham, Massachusetts" dated April 29, 1988, as revised July 20, August 17 and September 8, 1989 by Mainville & Pflug, Inc. (the "Plan") (Exhibit No. 7). It was disapproved by the Planning Board by decision dated September 23, 1988 primarily for the reason [Note 2] that the plaintiff had proposed that the principal access to Lots 3 and 4 on the Plan be by a common driveway from Bonvini Drive, a dead end street in an adjoining subdivision (Exhibit No. 2). The sole issue before the Court is whether the provision for alternative access to the property deprives the plaintiff of the approval which it seeks since, unquestionably, there is access to all lots on the subdivision across their frontage, the subdivision street, called Walkup Circle, on which the lots abut is less than five hundred feet in length as required by the rules and regulations of the Planning Board, and has now been approved by all the town departments having jurisdiction, except the Planning Board. [Note 3]

A trial was held at the Land Court on March 15, 1990 at which a stenographer was appointed to record and transcribe the testimony. At the trial Richard Mainville, a registered civil engineer who with his former partner prepared the definitive subdivision plan for the plaintiff, John Liberatore, an assessor in Framingham, Joseph Bolduc, a Framingham Fire Captain in fire prevention work and Fred Sergeant, the Framingham Town Engineer testified. There were thirteen exhibits introduced into evidence which are incorporated herein by reference for the purpose of any appeal. On all the evidence I find and rule as follows:

1. There is direct access over the frontage of each lot from Walkup Circle as shown on the definitive subdivision plan, Exhibit No. 7. The street meets the requirements of the Framingham zoning by-law as to its length and to the proposed construction thereof. There is ample room for a fifty foot wide snow easement to be granted to the town between the line of Walkup Circle and the area available to build the proposed houses.

2. The terrain of the two lots in question, Lots 3 and 4, is such that they rise steeply to the rear with ledge so that to build the houses on the front of the lot may require excavation and a retaining wall, neither of which presents an insuperable problem. It is also possible and undoubtedly less expensive to construct the homes at the rear of Lots 3 and 4. If this were done, the future owners would wish to approach their properties over a common driveway leading from Bonvini Drive which presently ends in a turn around. Clearly it would be easier also for emergency vehicles to respond by a route leading directly to the house. The Planning Board many years ago, in 1968, released the conditions restricting the sale of Lots 2 - 15 inclusive in the so-called Sekard subdivision, formerly Stones End Road, now Bonvini Drive (Exhibit No. 11), by instrument dated April 12, 1971 and duly recorded with Middlesex South District Deeds, Book 11983 Page 620. The Planning Board then was satisfied with the dead end nature of the so-called drive. The present proposal is to provide access to and egress from the locus and Bonvini Drive by a private way, the right to the use of which is appurtenant to each lot.

3. The assessor for the Town of Framingham testified that the address of the property would be Walkup Circle, wherever on the lots the houses were situated and whatever the street from which the driveways entered. The policy of the Assessing Department which assigns street numbers is to give a house a number on the street upon which it is situated. The Fire Department, however, would prefer that if the houses ultimately to be built on Lots 3 and 4 are situated at the rear of the lot so that the practical access is over the common driveway, the houses be so numbered in order that emergencies may be more expeditiously serviced by the department.

4. The Framingham Planning Board has no regulations concerning common driveways nor does the Town otherwise attempt to regulate such access.

There is no question that the subdivision meets the requirements of the enabling act and the rules and regulations of the Framingham Planning Board (Exhibit No. 1). The concern which the proposal has generated, however, rests on the topography of the premises which rise gradually from the front of Lots 3 and 4 on Walkup Circle to the rear thereof where access from a common driveway is proposed. The Town has no regulations specifically relating to common driveways which are being increasingly used in many municipalities to resolve difficult topographical or wetland conditions which affect the circulation in the interior of the lot even though there is adequate access across the frontage of the lot. The principal problem in the present case is the intransigence of the assessing department in insisting that wherever upon the lot a house is built and from whatever street there is preferred access, it must be numbered on Walkup Circle. The plan as drawn affords an alternative to the developer in that the houses on the two lots in question can be constructed in the rear thereof with access being over a common driveway or they can be constructed closer to the front of the lot with excavations and the construction of a retaining wall, a perfectly usual method of building a house. While the Board points out that the private way to which the common driveway runs exceeds the present length limitation set forth in the Framingham Planning Board's rules and regulations, the subdivision in which it was created was approved and cannot now be deemed defective for purposes of the alternative access of this case; indeed it should be viewed as an accomplished fact.

In conclusion, it is physically possible to construct the houses on the front portions of both Lots 3 and 4 with access gained from the subdivision street. None of the personnel having jurisdiction over Framingham roads and its building laws viewed this access as preferable to that over Bonvini Drive other than the Planning Board, and indeed the presence of a large retaining wall may well be unattractive.

The subdivision as submitted to the Planning Board and introduced into evidence in this trial complies with the statutory requirements and the rules and regulations of the Planning Board. There's no reason why it should not have been approved with the ultimate decision as to where the houses should be placed left to the plaintiff with the approval of the Building Inspector. However, if the plaintiff finally elects to use the access over the common driveway, then the wishes of the Fire Department should be respected and the houses on Lots 3 and 4 should be numbered as being situated off Bonvini Drive.

Judgment accordingly.