MISC 130752 & 127344

September 7, 1990

Nantucket, ss.



The plaintiff appeals from two decisions of the Nantucket Planning Board (the "Planning Board"). In the original action brought in this Court, Miscellaneous Case No. 127344, pursuant to the provisions of G.L. c. 41 §81BB he questioned the right of the Planning Board to rescind its approval in 1973 of a definitive subdivision plan of land in Nantucket, (Siasconset) Massachusetts, dated September 17, 1973 (Nantucket Planning Board Plan File 5B), and in Case No. 130752 the plaintiff appealed from a decision of the Planning Board to clarify its 1973 decision. The plaintiff's motion to consolidate the two cases for trial was allowed.

A trial was held at the Land Court on March 16, 1990, April 26, 1990 and April 27, 1990 of which a stenographer was appointed to record and transcribe the testimony. Richard Graham, the plaintiff in his capacity as Trustee of several trusts which collectively own the lots remaining in the subdivision, John James Shugrue, a registered professional engineer and registered land surveyor who prepared the subdivision plan and who was responsible for obtaining the original approval from the Planning Board and who sought to obtain from it in 1987 a substitution of a letter of credit for the covenant, William R. Klein, the director of the Nantucket Planning and Economic Development Commission, James Lengyel, the present Executive Director of the Martha's Vineyard Land Bank and former senior planner for said commission, Charles J. Gardner, a member of the Planning Board continuously from the time of the original approval of the plan through the subsequent clarification, Henry H. Thayer, a director of Rackemann, Sawyer & Brewster and a recognized expert in the field of conveyancing, William Scully, the plaintiff's transportation and traffic engineering expert and Norman A. Abend, a like expert for the defendant Planning Board all testified at the trial. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. On all the evidence, I find and rule as follows:

l. The then owner of the locus, Edward V. Heath, executed a covenant with the Planning Board dated October 15, 1973 covering the subdivision plan in question (Exhibit Nos. 5 and 6). The covenant contains several conditions which are not in question here. The rider to the covenant sets forth nine additions to the standard form of agreement; it is paragraph number 6 of the rider which is the focus of the present controversy. This paragraph reads as follows:

6. To remove the brush and grade Proprietors Road from the Milestone Road to locus. Providing that the necessary easements can be obtained from the Sconset Water Department (Commissioners) and other regulatory agencies, said work to be completed before the Planning Board is asked to release more than 38 lots in said subdivision.

2. The approval of the definitive subdivision plan was appealed to the Superior Court by third parties, and the Board's action ultimately was upheld.

3. Mr. Shugrue then proceeded to obtain bids from local contractors for the necessary work in the subdivision including the construction of the subdivision streets and ways and the installation of utilities. The bids were forwarded to the then owner, Edward V. Heath in Florida, and Mr. Heath took no further action.

4. The record is silent as to the conveyance by Mr. Heath to Associates Corporation. The latter entity is the grantor in a deed dated May 22, 1979 and recorded with Nantucket Deeds (to which Registry of Deeds all references herein refer) Book 170 Page 249 conveying to Topland Properties, a Massachusetts Partnership, the subdivision Lots 5-57 inclusive as well as other properties not here at issue (Exhibit No. 10). Topland Properties ultimately conveyed the subdivision lots to three trusts, the plaintiff in these actions, i.e., to Richard Graham, Trustee of Cannonbury Lane Realty Trust under a declaration of trust dated December 31, 1987 and recorded in Book 292, Page 223 (Exhibit No. 11) by deed dated December 31, 1987 and recorded in Book 292, Page 228 (Exhibit No. 12), to Richard Graham, Trustee of Westerwick Drive Realty Trust under a declaration of trust dated December 31, 1987 and recorded in Book 292, Page 236 (Exhibit No. 13) by deed dated December 31, 1987 and recorded in Book 292, Page 241 (Exhibit No. 14) and to Mr. Graham, as Trustee of the Packett Drive Realty Trust under a declaration of trust also dated December 31, 1987 and recorded in Book 292, Page 240 (Exhibit No. 15) by deed dated December 31, 1987 and recorded in Book 292, Page 251 (Exhibit No. 16).

5. Mr. Graham had by now retired and elected to proceed with the construction of the subdivision. In the spring of 1987, Mr. Shugrue renewed his efforts to move the project forward. His initial step was to consult with the Water Commissioners of the Siasconset Water Department and obtained permission from them to connect to their existing water main (Exhibit Nos. 19 and 21). Mr. Shugrue also requested from the Water Department permission to open Proprietors Road on the westerly side of the well field (Exhibit No. 20). After consultation with the Department of Environmental Quality Engineering (DEQE, now Department of Environmental Protection) the Water Commissioners refused permission (Exhibit No. 22).

6. Permit No. 36 for a sewer system connection was authorized by the Nantucket Public Works Department and approved and issued by the Division of Water Pollution Control of DEQE under date of June 15, 1987 (Exhibit No. 41).

7. Mr. Shugrue then applied to the Nantucket Planning Board for the release of 29 lots in the subdivision upon furnishing to the Planning Board a letter of credit in the amount of $825,000.00 (Exhibit No. 25). The counsel for the plaintiffs also submitted a request dated January 12, 1988 (Exhibit No. 28) for the release with a substitution of the letter of credit. It should be noted that many years before Lots 1-4 which front on Low Beach Road, a public way, had been released by the Board from the covenant.

8. At its meeting on February 8, 1988 the Planning Board voted to re-open the public hearing to reconsider its 1973 approval (Exhibit No. 32) and not to accept the letter of credit for the release of 29 lots as being insufficient to secure construction of the required improvements.

9. The focus of the controversy then shifted to this Court with the filing of the appeal in Miscellaneous Case No. 127344. The defendant moved for summary judgment in its favor in this action which I denied by the decision dated August 24, 1988 attached hereto as Exhibit "A". The decision held that the "condition" as to emergency access was ambiguous and the decision further questioned the right of the Board to rescind its approval in the light of the then very recent decision of Young v. Planning Board of Chilmark, 402 Mass. 841 (1988). In any event the Court held that any hearing on rescission had to be proceeded by the notice required for original consideration of a subdivision plan.

10. After the matter was remanded to the Planning Board, a hearing indeed was held on the question of rescinding the Board's approval of the subdivision plan. Rather than rescinding its approval the Board purported to clarify its original decision (Exhibit No. 35). In effect, the Board hopscotched among the rules and regulations in effect at the time of the original approval and those in effect in 1988 to select the elements of each which would best serve its purpose. In addition, the Board ignored the down zoning which had occurred in the interim. The changes which the Board required in the subdivision as to Lots 5-57 only were as follows:

1. To clarify the original covenant so as to avoid the interpretation problems cited by the Land Court, Topland Properties shall be entitled to a release of no more than 38 lots, as per paragraph 6 of the 1973 covenant, unless it is able to provide improved vehicular access to Milestone Road to the north of the subdivision. Such access must be provided across land other than that needed for public water purposes; and the location of such access road (whether on public or private land) must be specifically approved by the Siasconset Water Commissioners and any other regulatory agency, such as the DEQE, concerned with the protection of the public water supply. If such approved access should be provided in the future, Topland Properties shall then be entitled to the full 57 lots of the original approval. The 38 lots eligible for the release under this decision shall be the most southerly of 38 lots shown on the previously approved subdivision plan, that is (including Lots 1-4, already released) Lots 5-20 and 40-57.

2. In accordance with the intent of the Board's 1973 approval, one dwelling only shall be permitted per lot.

3. All subdivision roads, including the access road referred to above, if it is provided in the future, shall be improved according to standards set forth in sec. 4.03 and paved in asphalt according to one of the approved paving types (I-VII) outlined in sec. 5.08 and illustrated in Plate V of the Town's Rules and Regulations Governing the Subdivision of Land as amended through October 14, 1987. The construction of all such roads shall be inspected by the Town's roadway and drainage engineering consultants, per sec. 6.04 of the Rules and Regulations, to ensure satisfactory construction to these standards.

4. Should access to the Milestone Road be unavailable to Topland Properties, plans referenced in this decision, prepared by Schofield Brothers, Inc., and dated September 17, 1973, shall be revised to reflect the requirements of this decision and to show a cul-de-sac turnaround at the current intersection of Cannonbury Lane and Packet Drive to provide for traffic safety and convenience. No further roadway construction shall take place to the north of this location until Topland Properties has submitted and obtained the Baord's approval for a northerly access road.

5. If such northerly access road is provided and roadway construction for the remaining 19 lots of the original plan is resumed, the name of Westerwick Way shall be changed to another approved name reflecting the Island's history, since that name is already in use on another Nantucket street.

6. No temporary septic systems shall be permitted within the subdivision, nor shall any lot be released prior to the inspection and approval of the sewer system by the Planning Board or its agents, and to Topland Properties having obtained and presented to the Board copies of a Commonwealth of Massachusetts sewer extension permit. Topland Properties shall also demonstrate to the Board that it has legal rights to use the sewer mains leading to the treatment facility located on U.S. Coast Guard property.

7. All sewerage facilities within the subdivision shall be inspected and approved by the Town's engineering consultants according to their current standards for all subdivisions, including an air pressure test and mandrel test and such other testing as they may deem necessary to ensure the proper operation of the sewer and purity of the adjacent aquifer.

8. In order to provide for the inspection and testing of roadway and sewerage improvements, Topland Properties shall submit an engineering inspection escrow fee of $2.00 per linear foot of improved roadway shown on the plans, as specified under sec. 2.06a (8) of the Town's subdivision Rules and Regulations. This sum shall be submitted to the Planning Board before any additional work is undertaken on the subdivision roadways or sewers.

9. Topland Properties shall provide the Planning Board with a legal instrument attesting to the formation of a Homeowners' Association, endowed as required under sec. 2.06m of the Town's subdivision Rules and Regulations for the continued maintenance of streets, open spaces and all other common subdivision property.

10. A road-boundary monument deposit in the amount of $50 per monument shall be submitted to the Planning Board in accordance with Section I.c.(1)(d) of the 1973 Rules and Regulations. The 1974 Superior Court decision in Buckingham v. Gardner specified that the submission of this fee was deferred but only "until construction has started." Topland Properties has technically violated the provision of the Court's decision by having failed to provide this fee to the Town; no further site construction shall be undertaken until this deposit has been filed.

11. All requirements of the Planning Board's 1973 approval of the Heath subdivision and of the subdivider's covenant with the Town, dated October 15, 1973 not otherwise altered by this decision shall remain in full force and effect. The requirements set forth in this decision are stipulated as conditions for continued status as an approved plan. Therefore, these requirements shall be met before further work is undertaken.

11. During the course of this controversy the plaintiff proceeded with the construction of the roads in the subdivision since contracts had been let before the Board proceeded to consider rescission and he had contractual obligations to honor. The Court refused to enjoin the construction under the circumstaces.

12. The plaintiff offered in the fall of 1988 to execute an amendment to the covenant which would provide emergency access from the easement between Lots 24 and 25 on the subdivision plan. The proposed route would run southerly along Proprietors Road to Pond Street, along Pond Street to Silver Street and then along Silver Street to its intersection with Low Beach Road. The plaintiff further agreed to limit the use of Lots 5-57 to single family dwellings by the imposition of a restriction in the deeds out of lots on the plan. Finally the proposed covenant would obligate the plaintiff to prohibit the use of temporary on site septic systems on the lots in the subdivision. The Planning Board rejected this proposed amendment (Exhibit No. 34).

12. The rules and regulations in effect in 1973 did not limit the length of dead-end ways nor was there any requirement therein for providing emergency access or any other alternate access to a subdivision {Exhibit No. 3). The rules and regulations now in effect (Exhibit No. 42) as amended through October 13, 1987 do limit the length of a dead-end way to one thousand feet unless the Planning Board under certain circumstances waives this provision. There also is provision in the current rules and regulations for emergency access. The standards for construction and for inspection of the ways also have been revised in the intervening years.

There are then three principal issues presented by these actions:

1. The construction of the covenant (Exhibit No. 6) dated October 15, 1973 and recorded in Book 147, Page 140, particularly the language quoted relative to Proprietors Road;

2. The ability of the Planning Board to modify its original approval of the subdivision under the circumstances presented by these cases; and

3. The applicability of the 1973 rules and regulations as against the rules and regulations currently in force (Exhibit Nos. 3 and 42), as well as related questions as to the effect of the down zoning in the intervening years on the locus (Exhibit No. 1).

At the commencement of the trial the parties stipulated that a secondary dwelling is allowed by §139-8A(1) and §139-7A(a)-(g) of the Nantucket Zoning By-Laws in an R-2 District, and that this use became an allowed use in such districts as a result of amendment of the zoning By-Laws in 1975. It is further stipulated that the locus which is the subject-matter of this lawsuit is located in an R-2 District. In addition, there is the question as to the substitution of security.

Construction of Covenant

The parties construe paragraph number 6 of the original covenant differently. The plaintiff reads the phrase as if it were punctuated as follows:

To remove the brush and grade Proprietors Road from the Milestone Road to locus, providing that the necessary easements can be obtained from the Sconset Water Department (Commissioners) and other regulatory agencies; said work to be completed before the planning board is asked to release more than 38 lots in said subdivision.

The Planning Board conversely interprets this paragraph as setting forth an unconditional obligation to remove the brush and grade Proprietors Road northerly to the State Highway. In its view the provision "providing that the necessary easements can be obtained . . ." is a condition which must be fulfilled before more than 38 lots in the subdivision are released. At the time the covenant was executed, the rules and regulations of the Planning Board contained no limitation on the length of a dead-end way nor did they have any provision for emergency access in instances where there was only one access to the subdivision. The current rules and regulations cover both subjects. It seems clear to me from the testimony at the trial that the intent of the covenant relative to the removal of the brush and the grading of Proprietors Road was not to provide another access to the subdivision should one of the interior streets be blocked, but was to furnish a short cut to emergency vehicles coming from Nantucket Village which would be proceeding easterly on Milestone Road which is a state highway and could then turn at Proprietors Road and approach the northerly end of the subdivision through a way to be constructed between Lots 24 and 25 from Proprietors Road to Westerwick Drive. The usual reason for limiting the length of a dead-end way is to guard against blockage by the falling of large trees during blizzards or hurricanes or impeded passage from automobile accidents. During summer months the fire department in Sconset to the east of the locus would be able to reach the subdivision by the usual and only route from Milestone Road, that is, down Morey Lane to Low Beach Road and then southwesterly on Low Beach Road to Cannonbury Lane, the principal street within the subdivision. In the off season, however, the response time would be shortened by the emergency route when the available emergency vehicles would be in Nantucket Village. The rules and regulations did not require that the developer provide this alternative, but it was agreed to at the time of the approval. However, under such circumstances the owner's commitment was only to make Proprietors Road passable if the consents could be obtained. Neither he nor the Board conditioned the approval of the entire subdivision of the fifty­seven lots on obtaining the consent of the Water Department and I so find and rule.

The controversy over dead-end roads and their permissible lengths originated after the approval of the Plan and has been a central issue in several recent Land Court cases. The reason for the regulation is the fear that the longer the road, the greater the likelihood that it may be blocked by a falling tree, a motor vehicle accident, or other act of God or man. If the subdivision here was being initially considered today, then it is clear that Cannonbury Lane would have to be reconfigured, but that isn't our case.

Modification. Amendment or Rescission of Approval

The central question to be decided is whether the Board had the power to revise its original approval of the subdivision plan. A careful study of the decision of the Supreme Judicial Court in Young v. Planning Board of Chilmark, 402 Mass. 841 (1988) reveals that a board may take such action only in limited circumstances. One of such reasons discussed in Justice Wilkins' decision is failure by the developer or proponent of the plan to comply with the conditions imposed in the approval. Other than this, the Supreme Judicial Court finds any reason for alteration or modification to be doubtful. In the present case, if I had found that the approval of the subdivision was conditioned on obtaining the consent of a third party to make certain improvements in Proprietors Road, then; in my opinion, the Board clearly would have been justified in voting to amend the approval. I have discussed at length in my decision on the Motion for Summary Judgment (a copy of which is attached hereto) various cases in this field, and I do not repeat this discussion here. It is my conclusion and I so find and rule that inasmuch as the proviso clause applied to the obligation to clear brush and grade Proprietors Road, the failure of the plaintiff to obtain the necessary approval does not justify the Board in altering the provisions applicable thereto. The principal area in which the revised approval cuts is the requirement that the subdivision be limited to a 38 lot subdivision consisting of the most southerly lots on the previously approved subdivision plan including Lots 1-4 already released, Lots 5-20 and Lots 40-57. The authorities considered taking the northerly tier of lots in the subdivision to protect the wells in the adjoining well field and ultimately decided that the flow of water was not in such direction and that the taking was unnecessary. I do not impute to the Planning Board an attempt to reach the same result without compensation, but I do find and rule that the Board is without power to revise its original approval in this manner. The evidence at the trial established that the principal reason for the access to Milestone Road was to shorten the trip of emergency vehicles, not to guard against interior blockage. At the time of the subdivision the length of dead-end subdivision roads had not become the issue that it is today. The fact that other subdivisions have been built since this subdivision was approved is immaterial. The Low Beach Road subdivision was a matter of public record and not only the Planning Board, but other developers should have been aware of it.

Applicable Rules and Regulations

In its 1988 decision the Planning Board attempted to apply the zoning law in effect at the time the plan was originally approved, but the current rules and regulations, as well as some provisions of those in effect in 1973. Since I hold that the Board was without power under the circumstances here to revise the decision, then perhaps I need not construe which rules and regulations are applicable. G.L. c. 41 §81Q makes it clear that the rules and regulations which apply to the present subdivision plan are those in effect either at the time the preliminary plan was submitted or in any event when the definitive plan was approved. The statute is silent on a situation like that presently before the Court where there is a lapse of several years before the subdivision is consummated. Planning Boards generally now provide for the completion of the work in the subdivision within the stated period of time and that seems to be an unobjectionable procedure. There was nothing in the original decision, however, to suggest that the developer must complete the subdivision by any specified time. For that reason I find and rule that it was the rules and regulations in force when the definitive plan was approved that control the development of this subdivision. Compare as to the rules and regulations of the Board of Health Independence Park, Inc. v. Board of Health of Barnstable, 403 Mass. 477 (1988) reversing 25 Mass. App. Ct. 489 (1988). Accordingly, the provisions of the decision of the Planning Board dated November 3, 1988 which require that subdivision roads be built in accordance with the rules and regulations as amended through October 13, 1987, that they be so inspected in accordance with current requirements, that the testing of the sewerage facilities, the charges therefore and the formation of a home owners association, and the road boundary monument deposit, all provided for in the current regulations, cannot validly be applied to the current subdivision.

Paragraph 5 of the decision which mandates that another approved name be substituted for Westerwick Way since the name is now in use on another Nantucket Street will avoid future confusion and is approved.

The developer offered to enter into an amended covenant (Exhibit No. 34) which would provide for an emergency access southerly to Low Beach Road from the easement between Lots 24 and 25 along Proprietors Road to Pond Street, along Pond Street to Silver Street, and along Silver Street to its intersection with Low Beach Road. The owner also is willing to limit the use of Lots 5-57 in the subdivision to single family dwellings by the imposition of an appropriate restrictive covenant. The Planning Board attempted to apply the 1973 zoning by-law to the locus while selecting its current rules and regulations to govern the ways. There is nothing in the subdivision control law which authorizes the Planning Board to impose more stringent zoning regulations than the zoning by-law. The original approval was not specifically limited to one dwelling per lot, and if the ways had been completed and the lots conveyed out, individual owners would be entitled to erect a guest house. This being so, the developer should not be constrained by the Planning Board's second look. The final condition of the decision was the prohibition of temporary on site septic systems on Lots 5-57 which again is not controverted. The plaintiff has the necessary sewer permit, and this is the only permissible solution to the waste problems of this development.

Finally paragraphs 10 and 11 of the November, 1988 Decision (Exhibit No. 3), relate to conditions applied to the subdivision in 1973. They are valid and must be met.

On all the evidence I find and rule that the modification and alteration of the original decision effecting the subdivision was beyond the authority of the Planning Board, even though understandably it sought to upgrade the subdivision which the owner belatedly was developing. Absent a provision in the subdivision control law or in the original approval, any rescission in whole or in part of a previous approval is without the Planning Board's authority in light of my interpretation of the language of paragraph 6. I note too that Low Beach Road is a County way and that its adequacy falls within the twilight area not yet reached by the Supreme Judicial Court. The fact that Low Beach Road itself might be considered a dead-end road would seem immaterial here.

A final question concerns the question of substitution of security. It may be moot if the condition of the subdivision now complies with the 1973 approval as modified hereby with the plaintiff entitled to a release of an appropriate number of lots. If the work has not as yet been inspected and compliance therefore not established, the plaintiff may proceed pursuant to the provisions of G.L. c. 41 §8A which control.

I am remanding the two actions to the Planning Board for the execution by the Plaintiff of the amended covenant with such other changes and clarification as the parties hereto may agree upon and for a hearing relative to security. Jurisdiction will be retained by the Court.

Judgment accordingly.

exhibit 1

Exhibit A, p.1

exhibit 2

Exhibit A, p.2

exhibit 3

Exhibit A, P.3