By complaint filed in the Worcester County Superior Court on December 12, 1986, the Plaintiff, Casa Builders and Developers Corporation· ("Casa" or "Plaintiff"), appeals, pursuant to G.L. c. 41, §81BB, from a decision of the Defendant, Westborough Planning Board ("Planning Board"), denying approval of a Definitive Subdivision Plan entitled "Quick Farm Estates in Westborough, Massachusetts", dated September 19, 1986, revised on October 29, 1986, October 17, 1987 and May 9, 1988, by Tompson-Liston Associates, Inc. ("First Definitive Plan") (Exhibit No. 2). By Land Court Miscellaneous Case No. 130104, filed on October 23, 1988, Casa appeals the Planning Board's decision disapproving the Definitive Subdivision Plan, as revised ("Revised Definitive Plan"), as well as the Defendant Board of Health's decision granting conditional approval to such Plan.
In accordance with an Order of Assignment dated September 28, 1989, Land Court Justice, Robert V. Cauchon, was designated as a Justice of the Superior Court for purposes of hearing Superior Court Civil Action No. 86-36201. This action was thereafter consolidated with Land Court Miscellaneous Case No. 130104 and a trial on both matters was held on October 2, 1989 and.February 13, 1990, at which times the Court appointed a stenographer to record and transcribe the proceedings. The Plaintiff presented testimony from Andrew Liston of Thompson-Liston Associates, Inc., Steven Venincasa of Casa Builders and Developers Corporation and George Bollier of Black & Veatch, Engineers and Architects. No additional testimony was offered on behalf of the Defendants. Over the course of trial, eighteen (18) exhibits, all of which are incorporated herein for purposes of any appeal, were admitted into evidence.
Upon consideration of all of the evidence, I find the following facts to be most pertinent hereto:
1. Casa is the owner of a large tract of land consisting of approximately 314 acres, located off of Adams Street and Nash Street in the Fay Mountain area of Westborough ("Locus"). As shown on the Definitive Plans, Casa proposes to divide Locus into approximately 179 single-family residential lots (See Exhibit No. 2).
2. On February 27, 1986, Casa submitted a Preliminary Subdivision Plan of Locus, containing approximately 202 single-family residential house lots, to the Planning Board. This Plan was disapproved by the Planning Board in April of 1986.
3. On September 26, 1986, Casa submitted its First Definitive Subdivision Plan of Locus to the Planning Board. This Plan, which proposed approximately 179 single-family residential house lots, was disapproved on November 24, 1986.
4. Following the Planning Board's disapproval of the First Definitive Subdivision Plan, Casa commenced Civil Action No. 86-36201 in the Worcester County Superior Court.
5. On December 17, 1987, Casa submitted its Revised Definitive Subdivision Plan of Locus to the Planning Board. In accordance with the Planning Board's requests, Casa assented to an extension of time for final action, up to and including September 28, 1988.
6. By letter dated February 4, 1988 (Exhibit No. 6), Paul McNulty, Westborough's Director of Public Health, reported the Board of Health's approval of Casa's Revised Definitive Subdivision Plan, subject to the following conditions:
1. All of the lots be serviced by Town water in sufficient quantity and pressure to meet the ordinary needs of the users. "Ordinary Needs of the Users", meaning a reliable and efficient water supply with fire fighting capability designed in accordance with accepted engineering practices.
2. All of the lots be serviced by Town sewer. Some lots do not have adjacent sewer line shown.
3. The approval by the Planning Board shall be on the condition that no building or structure be built or placed upon any lot in this subdivision without the consent of the Board of Health or the Director of Public Health.
4. Drainage runoff be controlled so that it does not cause problems or nuisances to downstream abutters.
5. Detention areas should have low flow channels installd to prevent ponding of water.
6. Any "stump Dumps" must be in ·comp-liance with relevant Massachusetts General Laws and Department of Environmental Quality Engineering Regulations.
7. The existing hydrants near the Old Quick Farms Country Store shall be removed and the piping system abandoned. Any structure currently owned by the applicant that is serviced by a well shall be connected to the new water system and the well abandoned by plugging with concrete.
7. At a duly convened public hearing held on September 27, 1988, the Planning Board voted to disapprove Casa's Revised
Definitive Subdivision Plan (See Exhibit No. 1). Casa's requests for waivers were also denied. The Planning Board's reasons for disapproval may be summarized as follows:
I. . . . area streets must be up-graded to provide safe passage for the increased vehicle and pedestrian traffic.
Definitive plans must be submitted to the . . . Planning Board for approval. These plans must include the entire upgrading of Adams Street, a portion of Nash Street that would include all intersections.
II. The definitive plan is either missing or contains insufficient information according to the Rules and Regulations, Section C.2. (i) :
(d) Lines of existing and proposed streets as they shall be considered by the Board for approval.
III. . . . Section IV A.1. Design standards:
(a) All st:reets in the subdivision shall be designed so that in the opinion of the Board, they will provide safe vehicular travel. Due consideration shall be given "to the attractiveness" maximum livability.
(i) Street patterns derived solely for the purpose of providing maximum lot development will be cause for disapproval. . . .
IV. . . .
The developer has requested a waiver [from that portion of the Rules and Regulations which requires that street grades not exceed 6% so as to] allow road grades up to 8% for the maximum roadway slope.
(a) Dead end streets shall not exceed 600' in length. [See McIntosh Drive.]
(b) Dead end streets shall not provide access to more than 12 lots. . . . [See Nash Street.]
(c) [Dead end streets] shall not provide egress to another dead-end street or to another street whose egress and return is to a dead-end street. . . . [See Cider Hill Lane, Appleseed Drive and Harvest Way.]
(d) . . . The developer must submit a detailed proposal on the future of ponds, the areas surrounding ponds, wetlands and watercoures [sic].
(g) . . . Storm drainage system shall be designed on the basis of a storm occurring once in 50 years.
. . .
Construction details for retaining walls in roadway cross sections. . . .
VI.1. . . . The developer should be cognizant of [the] section [on water distribution systems] when planning and designing the subdivision.
VI.B.1. . . . A plan will be required to address the issues and concerns of [the section on Streets and Roadways].
VII.a. In cases where the streets are access to and are Within 2600' of the propoded subdivision, do not appear, in the discretion of the Planning Board, to be adequate to handle the traffic. The Board may require the developer to widen or otherwise improve the streets, at the developers expense.
(b) The developer has been informed on several occasions to prepare engineering drawings, specifications and related material to improve the existing access roads to his subdivision. These plans have not been satisfactory [sic] completed in the Boards opinion.
(c) Open Space, Parks and Playgrounds.
Areas for open space, parks and/or playgrounds will normally be required to be set aside. . . .
Section III, C. 2. n. . . .
[The Definitive Plan is missing major site features, such as existing stone walls, fences, buildings and swamps.]
Rules and Regulations - Appendix C . . .
[There is inadequate information in Casa's Environmental Impact Assessment Report (Exhibit No. 4 )].
[There is inadequate information in response o the concerns of the Westborough Traffic Consultant.]
Operations . . .
[No schedule of operations has been provided to the Planning Board]
Waivers i.e.
In this denial all waivers sought by developer are also to be considered denied. . . .
8. At all times pertinent hereto, the First and Revised Definitive Plans were governed by the Westborough Subdivision Rules and Regulations (at times referred to herein as "the Rules"), as most recently amended on June 18 of 1986 (Exhibit No. 12). Athough these Rules and Regulations were not then on record with an appropriate Registry of Deeds as required by G.L. c. 41, §81Q, Casa and its engineers were aware of the existence and application of such Rules and, admittedly, relied on the same as the guidelines in preparing their Plans. Moreover, most, if not all, of the 1986 changes are resolved below in the Plaintiff's favor.
It is well-settled that, in reviewing appeals brought pursuant to G.L. c.1, §81BB, the Court conducts a de novo hearing, at which all pertinent evidence is heard, independent findings of fact are made, and a determination as to the legal validity of the decision of the Planning Board, and in some instance's, the Board of Health, See Loring Hills Developers Trust v. Planning Board of Salem, 374 Mass. 343 , 349-350 (1978); Independence Park, Inc. v. Board of Health of Barnstable, 403 Mass. 477 (1988), is rendered. Rettig v. Planning Board of Rowley, 332 Mass. 476 , 479 (1955); Kuklinska v. Planning Board of Wakefield, 357 Mass. 123 , 130 (1970); Mac-Rich Realty Construction, Inc. v. Planning Board of Southborough, 4 Mass. App. Ct. 79 , 81 (1976); Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). In such instances, the developer bears the burden of proving to the trier of fact that the decisions of the Boards exceeded their authority and must be annulled. Fairbairn at 173 citing Mac-Rich at 83. Generally, the Planning Board is required to approve those plans which conform to the recommendation of the Board of Health and the reasonable subdivision rules and regulations of the Planning Board, provided however, that the Planning Board may, in appropriate cases, waive portions of its rules and regulations as it deems advisable, pursuant to G.L. c. 41, §81R. G.L. c. 41, §81M. See also Rettig at 479; Baker v. Planning Board of Framingham, 353 Mass. 141 , 144. (1967); United Reis Homes, Inc. v. Planning Board of Natick, 359 Mass. 621 , 623 (1971); Selectmen of Ayer v. Planning Board of Ayer, 3 Mass. App. Ct. 545 , 548 (1975); 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).
A. The Validity of the Conditions Imposed by the Westborough Board of Health
In the instant matter, the Westborough Board of Health granted conditional approval to Casa's Revised Definitive Subdivision Plan. In substance, these conditions pertain to the lots' being serviced by municipal sewer and water systems, the Board/Director of Public Health's prior approval of the proposed location of buildings or structures on the lots, the developer's controlling drainage runoff so as to prevent a nuisance to abutters, the design of detention areas to prevent "ponding" of water, compliance with applicable laws and regulations where "stump dumps" are concerned and the removal of certain existing hydrants and the abandonment of the present piping system and existing wells.
Although under G.L. c. 111, §§31 et. seq., local boards of health may make and enforce reasonable regulations for the pulic health and safety relative to sewage disposal, drainage, nuisances and the like, there are no such regulations before the Court. In such instances, the Board of Health may make recommendations covering matters not addressed in its reguations, so long as these recommendations can withstand a de novo review of the reasonableness of the Board's action, Independence Park at 381, and provided they do not run afoul of applicable State regulations. Id. at 479.
The first two conditions and/or recommendations imposed upon Casa's proposed subdivision by the Westborough Board of Health pertain to provisions for Town water and sewer. First, as to the subject of water supply, applicable State regulations provide in relevant part as follows:
The owner shall provide for the occupant of every dwelling . . . a supply of water sufficient in quantity and pressure to meet the ordinary needs of the occupant, connected with the public water supply system, or with any other source that the board of health has determined does not endanger the health of any potential user (emphasis added) . . . 105 C.M.R. 410.180.
A reasonable interpretation of this portion of th Code of Massachusetts Regulations is that the water supply proposed for a dwelling may come from either the municipal water supply system or some alternative source, such as an individual well, provided that the Board has determined that the latter poses no danger to the health of any potential user. The record before the Court does not indicate that the Board rendered any such determination with respect to possible water supply alternatives for Casa's propgsed subdivision. Instead, the Board's decision includes the unsubstantiated conclusion that such subdivision "be serviced by Town water." The result of imposing such a condition is to effectively foreclose, without any reason therefor, any alternatives to municipal water supply, regardless of reasonableness and/or feasibility. I thus find that such a narrowly drafted condition is unreasonable as applied to Casa's proposed subdivision and, in this instance, must be annulled.
As to the question of sewage disposal, the decision of the Westborough Board of Health provides that "all of the lots be serviced by Town sewer". 105 C.M.R. 300 states in pertinent part, as follows:
The owner shall provide each dwelling with a sanitary drainage system connected to the public sewerage system, provided, that if, because of distance or ground conditions, connection to a public sewerage system is not practicable, the owner shall provide, and shall maintain in a sanitary condition, a means of sewage disposal which is in compliance with Title 5 of the State Environmental Code. . . .
The language of this regulation makes a tie-in with municipal sewerage mandatory, in the absence of special cirumstances pertaining to distance or ground conditions. The decision of the Board makes no reference to the existence of such conditions in the instant matter nor does the record before the Court indicate or support the same. Accordingly, I find that the Board did not exceed its authority in requiring Casa's subdivision to be serviced by Town sewer.
The third condition imposed by the Board of Health provides that the Planning Board's approval of Casa's Revised Definitive Plan "be on the condition that no building or structure be built or placed upon any lot in this subdivision wihout the consent of the Board of Health or the Director of Public Health". Inasmuch as the scope of the Board's inquiry at this stage of development will be confined to areas within the purview of the Board, specifically, sewage disposal, water supply and similar concerns relative to the preservation of the public health, I find that the Board acted reasonably in imposing this condition upon Casa's proposed subdivision. G.L. c. 41, §81U. See also United Reis Homes, Inc. at 624; Fairbairn at 183-185 ; Doeblin v. Tinkham Development Corp., 7 Mass. App. Ct. 720 , 722 (1979).
The fourth, fifth and sixth conditions imposed by the Westborough Board of Health pertain to the control of drainage runoff onto properties of downstream abutters, designing detention areas so as to prevent ponding of water and complying with applicable statutes and regulations relative to "stump dumps". I find all of these conditions to be reasonable exercises of the authority of the Board of Health, inasmuch as they are directed at preventing potential nuisances and protecting the public health.
As to the seventh and final condition imposed by the Board, I find that portion thereof which requires the removal of existing hydrants, and the abandonment of the present piping system, to be reasonable only insofar as these requirements may pertain to the
prevention and/or alleviation of public health problems, such as the pooling of stagnant water and nuisances to the health and safety of potential inhabitants of the subdivision. See United Reis Homes, Inc. at 624. The second part of this condition, however, states as follows:
. . . Any structure currently owned by the applicant that is serviced by a well shall be connected to the new water system and the well abandoned by plugging with concrete.
Although this condition fails to define the scope of the geographic area covered by the language "any structure currently owned by the applicant that is serviced by a well . . . ", I assume, for purposes of this Decision, that the Board means only Locus. Accordingly, I find that, in the event Casa proposes to service the water needs of the subdivision by the "alternative source" of on-site wells, there is no rational basis for the Board's requirement that these wells be abandoned. Moreover, unless the Board determines that such "other sources" endanger the public health or safety, even where municipal water is available, the use of private wells as an alternative water source should be left to the option of the individual landowner.
B. The Validity of the Decision of the Westborough Planning Board
1. Upgrading of Area Streets
By that portion of the Planning Board's (at times referred to hereinafter as "the Board") decision, which is enumerated therein as Sections I and VII.a and (b.), the Board imposes the following requirements:
. . . area streets must be up-graded to provide safe passage for the increased vehicle and pedestrian traffic. Definitive plans must be submitted to the Westborough Planning Board for approval. These plans must include the entire upgrading of Adams Street, a portion of Nash Street that would include all intersections.
. . . In cases where the streets are access to and are within 2600' of the proposed subdivision, do not appear, in the discretion of the Planning Board, to be adequate to handle the traffic. The Board may require the developer to widen or otherwise improve the streets, at the developers own expense. . . .
. . . The developer has been informed on several occasions to prepare engineering drawings, specifications and related material to improve the existing access roads to his subdivision. These plans have not been satisfactory completed in the Board's opinion.
Pursuant to G.L. c. 41, §81M, a planning board may disapprove a subdivision plan due to its impact on neighboring ways and lands, provided said board has a comprehensive and reasonably definite rule or regulation requiring adequate access within the subdivision. See Castle Estates, Inc. v. Park & Planning Board of Medfield, 344 Mass. 329 , 334 (1962). See also North Landers Corporation v. Planning Board of Falmouth, 382 Mass. 432 , 439 (1981). In the instant matter, the Planning Board relies for this authority on Section IV.A.6(a) of the Rules, which section reads as follows:
In cases where streets are the access to and are within 2,600 feet of the proposed subdivision . . . do not appear, in the discretion of the Planning Board, to be adequate to handle the traffic to be created by the proposed development, the Planning Board may require the developer to widen or otherwise improve the streets at the developer's expense.
As used in this context , the term "adequate access" has been addressed by the Massachusetts Supreme Judicial Court. See North Landers at 442. In North Landers, the Court held that, under G.L. c. 41, §§81L , 81M and 81P, "adequate access" is not a term which is so rubbery or indefinite as to elude common understanding. Id. I find, however, that, unlike the provision of the Subdivision Rules at issue in North Landers, the pertinent sections of the Westborough Subdivision Rules and Regulations are not defined and tailored so as to apprise the developer, in advance of his submission of a subdivision plan to the Planning Board, of what must be done to attain the requisite level of "adequate access". See North Landers at 436, n.4. In the present matter, Section IV.A.6(a) of the Rules states in relevant part that "the Planning Board may require the developer to widen or otherwise improve (emphasis added) the streets at the developer's expense". As drafted, this regulation leaves the nature and scope of such "other improvements" to the unbridled discretion of the Board, thereby depriving the developer of any cognizable guidelines in this regard.
In addition, competent testimony, affirmed by evidence such as Casa's Environmental Assessment Report (Exhibit No. 4), reveals
that Casa's Revised Definitive Plan does in fact provide for the upgrading of the Town ways, Adams Street and Nash Street. Specifically, the Revised Definitive Plan indicates as follows:
". . . removal of the high spot on Adams Street, the reconstruction of Nash Street, Adams Street intersection, and as well . . . the fact that the road surface of Adams Street would be repaved after utility work was constructed, that where possible and at the direction of the DPW Manager, the pavement would be widened; that additional drainage considerations would be dealt with on the existing street problems. . . ." (Transcript, Day One, Page 55).
Despite these efforts to upgrade Adams and Nash Streets in accordance with the Rules, the Board reasons that Casa's Revised Plans "have not been satisfactory in the Board's opinion". Accordingly, I find that, under these circumstances, this matter must be remanded to the Board for further clarification as to what "other improvements" Casa must make in order to achieve the standard of "adequate access" required under the Rules.
2. Insufficient Information
The second reason propounded by the Planning Board for disapproving the Revised Definitive Plan pertains to Casa's alleged failure to provide the Planning Board with sufficient information with respect to the lines of existing and proposed streets (See Section II (d) of the Decision of the Board). I find the Board's reasoning to be misplaced, insofar as the Revised Definiive Plans exhibits compliance with this requirement. This portion of the Board's decision is thus arbitrary and unreasonable and must be annulled.
3. Design Standards
This portion of the Planning Board's decision (See Section III (a) and (i) of the Decision of the Board) amounts to no more than a mere recitation of two subsections of Section IV.A.1 of the Rules, which subsections the Board purports to state have been violated by Casa. These subsections read as follows:
(a) All streets in the subdivision shall be designed so that, in the opinion of the Board, they will provide safe vehicular travel. Due consideration shall also be given by the subdivider to the attractiveness of the street layout in order to obtain the maximum livability and amenity of the subdivision.
(i) Street patterns derived solely for the purpose of providing maximum lot development will be cause for disapproval.
I find that portion of subsection (a), which gives the Planning Board discretion over whether or not the subdivision streets provide safe vehicular travel, exceeds the authorty of the Board, inasmuch as it makes the issue of safety a matter of opinion for the individual members of the Planning Board. Chira at 438 citing Castle Estates at 334. See also Pieper v. Planning Board of Southborough 340 Mass. 157 , 163-164 (1959). The remainder of subsection (a) was recited verbatim in the regulation at issue in Chira v. Planning Board of Tisbury, supra. There, it was held that the planning board was without statutory power to adopt such a regulation, insofar as the question of whether a proposed subdivision meets such standards as "attractiveness of the street layout" and "maximum liveability and amenity", and what constitutes "due consideration" are essentially matters of opinion. Id. at 438. Such a regulation does not fulfill the aforesaid requirement of apprising owners in advance of what is or what may be required of them and what standards and procedures may be applied to them. Accordingly, this portion of the Board's decision must also be annulled.
As to subsection (i) of Section IV.A.1, I find that the Planning Board may not so arbitrarily restrict the developer's proposed street patterns, simply because the Board may find such designs to promote "maximum lot development". Moreover, I note, for the reasons set forth above, that the question of what will const:itute "maximum lot development" is improperly reserved here for the collective, subjective opinions of the Board members, thus leaving the developer unaware of what standards he must meet to comply with this section of the Rules. This portion of the Board's decision must also be annulled.
4. Request for Waiver of Street Grades of 6%
In the instant matter, the Revised Definitive Subdivision Plan shows street grades of 6%, as called for under Section IV.A .3 of the Rules. Casa, however, requested that the Planning Board waive this portion of its Rules and permit, in the case of its proposed subdivision, street grades of 8%.
In essence, G.L. c. 41, §81R provides that, where such action is in the public interest and not inconsistent with the purpose of the Subdivision Control Law, a planning board may waive strict compliance with its rules and regulations. The planning board is not, however, obligated to issue waivers. Mac-Rich at 85; Caruso v. Planning Board of Revere, 354 Mass. 569 , 572 (1968). Here,
testimony presented from the respective civil engineers of the Plaintiff and the Boards reveals that, in terms of design, a grade of 8% is as safe as a grade of 6%, and that the use of an 8% grade in connection with the development of any subdivision will require less earth removal. In view thereof, and in light of Casa's submission of a subdivision plan utilizing the required 6% street grade, I find that this portion of the decision must be remanded to the Planning Board for further consideration, upon Casa's filing therewith within a reasonable time, if Casa should so desire, plans and accompanying drainage calculations designed in accordance with its requested 8% grade.
5. Dead End Streets
A further ground enunciated by the Board as a basis for disapproving Casa's Revised Definitive Plan pertains to the issue of "dead- end" streets under Section IV.A.4(a) and (c) of the Rules. These Sections read as follows:
(a) Dead end streets (1) shall not exceed 600 feet in length . . . and (3) shall not provide access to more than 12 lots.
(c) Shall not provide egress to another dead-end street or to another street whose egress and return is to a dead-end street.
A "dead-end street" has been defined as a single, continuous stretch of road open at one end and closed at the other. Sparks v. Planning Board of Westborough, 2 Mass. App. Ct. 745 , 748 (1974). In this instance, Nash Street, which the Board has found to be a "dead-end", is a public way, obviously not part of Casa's proposed subdivision, which connects at one end with Adams Street, another public way, and, in addition, provides access via Appleseed Drive and Harvest Way to more than twelve subdivision lots. Appleseed
Drive and Harvest Way form a loop, leaving Nash Street a short distance from its intersection with Adams Street, and rejoining Nash Street some distance to the southwest.
Among the purposes of the Subdivision Control Law are ". . . regulating the laying out and construction of ways in subdivisions . . .
for lessening congestion in such ways and in the adjacent public ways (emphasis supplied); . . . for coordinating the ways
in a subdivision with each other and with the public ways in the . . . town. . . ." G.L. c. 41, §81M. It does appear, however, that the courts have left open the question of whether a planning board has the power to disapprove a subdivision plan due to traffic and access problems caused not by any inadequacy in the ways set out on the subdivision plan, but rather by the inadequacies in the public ways adjacent, or providing access, to the proposed development. The inadequacy of public access roads may, however, be taken into consideration in conjunction with the inadequacy of the access from the public ways to the subdivision. North Landers at 437 n .6. In the instant matter, the Board has applied its Rules to bar the approval of Appleseed Drive, Harvest Way and related lots, due to the "dead end" nature of Nash Street per se, rather than considering the adequacy of the access therefrom to the subdivision. Moreover, it would appear that the usual objections to "dead-end" streets would only apply to that portion of Nash Street lying between Adams Street and Appleseed Drive. Accordingly, as to those portions of Sections V(b) and (c) of the Board's decision which address the Nash Street/Dead End issue, the matter is remanded for further consideration in accordance herewith. Casa may, within a reasonable time after a final disposition of this matter and prior to such reconsideration, propose an upgrading of Nash Street between Appleseed Drive and Adams Street, as suggested in Francesconi v. Planning Board of Wakefield, 345 Mass. 390 , 393 (1963).
Contrary to the Board's assertions, however, I decline to characterize McIntosh Drive as a dead-end street in excess of 600 feet in length, inasmuch as its design amounts to a looping street. Accordingly, I fail to find that Cider Hill Lane egresses onto a dead-end street in violation of the Rules. I also find the Board's reasoning as to wetland crossings along McIntosh Drive to be unpersuasive on the question of whether or not such subdivision way is a "dead-end street, at least until such time as this matter has been fully reviewed by the appropriate authorities. Of course, the Board may make the grant of such approval (i.e., wetland crossings) a condition of its own approval of the Revised Subdivision Plan.
6. Protection of Natural Features and Inclusion of Major Site Features
Section IV.1.D of the Rules provides as follows:
Due regard shall be shown for all natural features, such as large trees, water courses, scenic points, historic spots, and similar community assets, which, if preserved will add attractiveness and value to the subdivision.
The Board uses this regulation as its point of reference when reasoning, in Section V(d) of its decision, that Casa "must submit a detailed proposal on the future of ponds, the areas surrounding ponds, wetlands and watercoures [sic]". In Chira, supra, a strikingly similar regulation was reviewed on appeal. There it was found that a subdivision rule drafted as such is unenforceable. Id. at 438. The Chira court reasoned that whether the preservaion of a particular natural feature "will add attractiveness and value to the subdivision", and what constitutes "due regard" are, for the most part, matters of opinion, presumably, the collective opinion of the members of the Board. Id. I thus find that section IV.1.D of the Rules is too open-ended to adequately apprise the developer in advance of what steps he must take to comply with this regulation.
The foregoing notwithstanding, however, I find that Casa's Revised Definitive Plan provides for the preservation of natural features as required by Section IV.1.D of the Rules. I do not, however, find any standards whatsoever in the Rules or Regulations which would have alerted Casa, in advance of the Planning Board hearing, that a "detailed proposal on the future of ponds, the areas surrounding ponds, wetlands and watercoures [sic]" would be a necessary prerequisite to securing Planning Board approval. I thus find that this portion of the Board's decision exceeded its given authority and must be annulled.
In that portion of the decision entitled, "Section III.C.2.n", the Board states that the Revised Definitive Plan is missing information with respect to major site features, such as existing stone walls, fences, buildings and swamps. Based on the record before the Court, however, I find the Board's assertion to be inconsistent with the evidence and annul it accordingly.
7. Storm Drainage System
The Planning Board found that Casa had failed to submit all of the engineering data necessary for a complete evaluation of the storm drainage system proposed for the subdivision (See Section V(g) of the Decision of the Board). Section IV.G of the Rules provides in pertinent part as follows:
Storm drainage systems shall be designed on the basis of a storm occurring once in 50 years, calculated by the National Formula (Q=Aci) . . . Design computations for each drainage area and sub-area shall specify the basis for selection of the "c" value chosen and value of "i". Text book or handbook reference shall be given for the value selected above.
Testimony and evidence introduced at trial reveal that the storm drainage system proposed for Casa's subdivision is designed on the basis of a storm occurring once every fifty (50) years. As a basis for the Board's disapproval of Casa's Revised Definitive Plan, however, the Board states that Casa failed to submit all of the necessary information with respect to this drainage design.
Unlike certain of the regulations previously discussed herein, I find that Section IV.G of the Rules is comprehensive and reasonably definite, so as to permit a developer to know in advance what is or what may be required of him and what standards and procedures will be applied to him in the area of storm drainage. See Castle Estates at 334. The Plaintiff's engineer testified at trial that the additional information sought by the Board entails further calculations relevant to concentration and flow lines associated therewith, which information is contained in available log books and field data. I thus find that, by the Plaintiff's own testimony, the Board was not provided with all of the materials required under the Rules. Accordingly, I find that the Plainiff must be afforded an opportunity to obtain this information and submit the same to the Board within a reasonable time, so that said Board may complete its review of the proposed drainage system, pursuant to Section IV.G.
8. Construction Details for Retaining Walls In Roadway Cross Sections
As further grounds for disapproving the Revised Definitive Subdivision Plan, the Board notes Casa's failure to submit designs for retaining walls, berms and elevated roadways, in conjunction with its proposed development plans (See Section V(g) of the Decision of the Board). Section IV.A.l (k) of the Rules states that roadway cross sections shall be in accordance with Appendix B of the Rules, entitled "Typical Roadway Section". Casa's Revised Definitive Plan fails to include any such plans in this regard. In fact, testimony and evidence admitted at trial attest to the fact that Casa's consultants, SEA Consultants, did not provide any such design plans for review by the Board. I thus find that, before approval may be granted to the Revised Definitive Plan, Casa must furnish the Board with plans showing proposed designs for retaining walls, berms and elevated roadways, in accordance with the Rules.
9. Water Distribution System
With respect to the issue of water distribution, the Planning Board sets forth the general statement that Casa "should be cognizant of this section of the subdivision rules when planning and designing the subdivision" (See Section VI.l of the Decision of the Board). This section of the decision disapproving the Revised Definitive Plan makes no specific reference to Casa's action, or, nonaction, in this regard, despite the abundance of testimony presented on the subject at trial. On all of the evidence, however, I find that the Plan demonstrates compliance with Section IV.I of the Rules, which section reads in relevant part as follows:
Whenever the Town's water system exists within one thousand (1000') feet of a proposed sub-division, the developer shall construct and install municipal water service of sufficient pressure to service the subdivision.
Specifically, the Revised Definitive Plan shows a connection to Town water located on Adams Street and Ruggles Street, as well as a potential hook-up to a water tower. Insofar as the subdivision stage of development requires only that the development plans exhibit an adequate system for water, and not an adequate supply of water, the latter being the responsibility of the municipality, I accord little weight to the Board's arguments that Casa's proposed tie-in to Town water will yield insufficient water pressure and that its proposed hook-up to a water tower is insufficient in the absence of easements, and annul this portion of its decision accordingly. See Daley Construction Co., Inc. v. Planning Board of Randolph, 340 Mass. 149 , 150-151 (1959).
10. Open Space, Parks and Playgrounds
Another provision of the Rules which the Board states has been violated by Casa is Section IV.C, which essentially requires that an area of open space, of reasonable size, but generally not less than 5% depending upon the location and quality of the land in issue, be set aside in accordance with G.L. c. 41, §81U (See Section VII(c) of the Decision of the Board). In consideration of the testimony and evidence offered at trial, I find that the Revised Definitive Plan designates certain land to be set aside as open space, but that such land is of an insufficent quantity to meet the 5% minimum under Section IV.C. Further amendments to the Revised Definitive Plan are therefore required before the Board may grant its approval thereto.
11. Environmental Assessment Report
Pursuant to Section III.C.2(r) of the Rules, a developer must submit an "Environmental Assessment" with its proposed subdivision plans. This report must address the probable impact of the subdivision on Town facilities, services and resources directly attributable to the uses as proposed on such plan (i.e., traffic, school enrollment, water, police and fire protection, street maintenance and physical environment). In the case at bar, the Board finds that Casa failed to supply complete information in this regard. Specifically, the Board states as follows:
The developer never adequately responded to concerns raised by the Westborough Planning Board Traffic Consultant. . . . A complete adequate safety analysis for the entire general area must be included in any review.
Casa's Environmental Assessment Report ("the Report") (Exhibit No. 4) addresses the subdivision's probable impact on Town facilities, services and resources, all in accordance with Section III.C.2 (r). Although the Board's basis for disapproving the Report is that it lacks a "complete, adequate safety analysis for the entire general area", the Rules are silent as to what standards or guidelines must be fulfilled to attain the "completeness" and "adequacy" sought by the Board and what constitutes "the entire general area" to which the Board refers. I thus find that Casa's Report exhibits compliance with Section III.C.2(r), as drafted in the Rules, and that the Board's basis for disapproving the Report is not supported by the evidence.
12. Schedule of Operations and Requests for Waivers
As one of the final grounds for disapproving the Revised Definitive Plan, the Board states that Casa failed to submit a schedule of operations. This schedule, entitled "Quick Farm Estates Seven-Year Construction Schedule", is contained in the record before the Court as Exhibit No. 5. Although the Board states that it never received such a document, I decline to find this as a valid reason to withhold subdivision approval and order that Casa submit this proposed schedule to the Board forthwith. In addition, I note that further of the Board's decision which provides as follows:
The aforementioned reasons for denial are not all inclusive and other problems could exist. It must be noted that attempted corrections of the above deficiencies could create additional errors and problems.
I find that this language exceeds the authority of the Planning Board and must be stricken from the remainder of the decision, inasmuch as it reserves unbridled discretion in the Board to supplement or expand upon the numerous grounds already set forth as reasons for disapproving the Revised Definitive Plan. In vesting itself with such authority, the Planning Board interferes with any attempt by Casa to comply with the Rules in accordance with the decision of the Board. In fact, any such attempt by Casa to achieve compliance is effectively foreclosed by the Board's additional language that "attempted corrections . . . could create additional errors and problems". The imposition of such unreasonable limitations on a developer contravenes the ends sought to be achieved by the Subdivision Control Law, namely that developers and Planning Boards be encouraged to produce, by joint efforts, the most desireable development plans for the community. The final reason for disapproval set forth in the Planning Board's decision states that "in this denial all waivers sought by developer are also to be considered denied". Specifically, the waivers sought by Casa are as follows (See Exhibit No. 11):
1. A waiver of the requirements to allow an increase to 8% for the maximum road slope . . . .
2. With respect to off-site improvements beneficial to the Town . . . Casa . . . requests an 80% credit towards water and sewer hook-up fees as has been common, past practice.
3. A waiver of paragraph A and paragraph C of Section IV regulating the Design Standards of dead-end streets in the Rules specifically pertaining to the proposed Harvest Way and Appleseed Drive portions of the Subdivision off of Nash Street.
4. A waiver of the requirement for sidewalks, and authorization to install sidewalks on one side only on the streets of Quick Farm Estates.
5. We request a waiver of the 400 foot horizontal site distance on MacIntosh Drive between station 22 and 75 and between station 35 and 25.
Casa's request for a waiver of the required 6% street grade is discussed herein under Section IV. As to Casa's remaining waiver requests, I find insufficient evidence in the record before the Court to indicate that the Board acted outside of its authority or abused its discretion in denying these requests.
In consideration of all of the foregoing, I rule in summary that the decision of the Defendant Board of Health must be annulled only insofar as it requires Casa's proposed subdivision to be serviced by Town water. As to the decision of the Defendant Planning Board, I rule that the following portions thereof exceed the authority of such Board and must be annulled:
a. Section II (d), requiring further information from Casa with respect to the lines of existing and proposed streets;
b. Sections III (a) and (i), pertaining to "design standards";
c. Sections V(a), (b) and (c), only insofar as they apply to the proposed McIntosh Drive, subject to the conditions set forth herein;
d. Section V(d), and that portion of the decision entitled "Section III.C.2.n", as they pertain to the preservation of natural features and information on major site features;
e. Section VI .1 on "water distribution system";
f. That portion of the decision requiring that Casa "adequately provide impact information under the heading of 'Environmental Assessment'";
g. Conditioned upon Casa's submitting its proposed construction schedule to the Board, that portion of the decision which states that Casa has not provided the same to the Board;
h. That portion of the decision which states, in effect, that the reasons set forth in the Board's decision as the grounds for disapproval of Casa's Revised Definitive Plan are not all inclusive.
I further find and rule that those sections of the Board's decision (Sections I and VII.a and (b.)), which require Casa to further upgrade Adams and Nash Streets, must be remanded to the Board for clarification as to the scope of such improvements, together with consideration of any improvements to Nash Street which Casa may propose. In addition, that portion of the decision which denies Casa's request for a waiver of the required 6% street grades must be remanded to the Planning Board upon Casa's filing therewith within a reasonable time, if Casa should so desire, plans and accompanying drainage calculations designed in accordance with Casa's requested grades of 8%.
On all of the evidence, I further find and rule that the Planning Board did not exceed its authority in disapproving the Revised Definitive Plan on the ground that Casa failed to submit to the Board all of the engineering data necessary for the evaluation of the storm drainage system (See Section V(g) of the Decision of the Board) proposed for the subdivision and that portion of the decision which relates to Casa's failure to submit design plans for retaining walls, berms and elevated roadways (See Section V(g) of the Decision of the Board). Similarly, I fail to find that the Planning Board exceeded its authority in finding that Casa's Revised Definitive Plan did not comply with that portion of the Rules requiring that a minimum of 5% of the subdivision land be reserved as "open space" (See Section VII(c) of the Decision of the Board). Finally, I find that the Planning Board did not exceed its authority in refusing to grant Casa's request for certain waivers in conjunction with its proposed subdivision development.
The Defendant Boards have submitted requests for findings of fact and rulings of law, all of which I have reviewed and considered. Certain of these requests are incorporated herein. I have taken no action with respect to the remainder, insofar as I have made my own findings and rulings as to those facts and rules of law which I deem to be pertinent hereto.
Judgment accordingly.
CASA BUILDERS AND DEVELOPERS CORPORATION vs. EDWARD W. DOYLE, JAY K. THAYER, WALTER KOROSKI, JR., RICHARD M. SUNDSTROM, STEVEN YOUNG and EDWARD R. CLEMONS, as they are members of and constitute the PLANNING BOARD OF THE TOWN OF WESTBOROUGH, WORCESTER COUNTY, MASSACHUSETTS, and AMY FINN, DONALD CUTONE and PRISCILLA FEDERICI, as they are members of and constitute the BOARD OF HEALTH OF THE TOWN OF WESTBOROUGH, WORCESTER COUNTY, MASSACHUSETTS.