BENJAMIN C. OSGOOD and JOSEPH J. BARBAGALLO, TRUSTEES OF CHESTNUT STREET REALTY TRUST; BENJAMIN C. OSGOOD, TRUSTEE OF ISLAND PIECE REALTY TRUST; and JOSEPH J. BARBAGALLO and BENJAMIN C. OSGOOD, TRUSTEES OF GENERAL STORE TRUST vs. PAUL A. HEDSTROM, GEORGE PERNA, JOHN SIMONS, ERICH NITZSCHE and MICHAEL LEARY, as they are the TOWN OF NORTH ANDOVER PLANNING BOARD.

The several plaintiffs, Trustees of three separate trusts which together own all the lots shown on a plan entitled "Plan of Land in North Andover, Mass. Subdivided for General Store Trust" dated April 12, 1985 Revised April 24, 1985, by Thomas E. Neve Associates, Inc. recorded with Essex North District Deeds as Plan No. 9988 of 1985 (the "Plan") (Exhibit No. 2) sought special permits from the defendant North Andover Planning Board for common driveways to serve the lots on the Plan which had been endorsed by the defendant pursuant to the Subdivision Control Law as "Approval Not Required". The zoning by-law contains provisions for such driveways as distinguished from that in Sudbury (see Corcoran v. Planning Board of Sudbury, 406 Mass. 248 (1989)), but the plaintiffs were unable to obtain approval of the four separate driveways for which a special permit was sought in Case No. 131188, nor for the four clustered together in Case No. 131433 to meet objections of the Conservation Commission, and these appeals followed pursuant to G.L. c. 40A, §17.

The two appeals were tried together at a trial which was held at the Land Court on October 31, 1989 at which a stenographer was appointed to record and transcribe the testimony. Paul Hedstrom, Chairman of the defendant Planning Board and Thomas Neve, the plaintiffs' expert, a registerd civil engineer and land surveyor were the only witnesses. Seventeen exhibits were introduced into evidence and two chalks were employed as visual aids. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

The parties entered into a stipulation of facts (Exhibit No. 1) in which they agreed that the following statements may be admitted as true facts for the purpose of these actions:

1. On May 5, 1985, the Town of North Andover Planning Board (the "Planning Board") endorsed as "Approval Under The Subdivision Control Law Not Required", pursuant to M.G.L. c. 41, §81P, a plan entitled "Plan of Land in North Andover Subdivided For General Store Trust", dated April 12, 1985, revised April 24, 1985, prepared by Thomas E. Neve Associates, Inc. (the "Plan").

2 . The Plan was recorded as plan #9988 at the Essex North District Registry of Deeds on August 1, 1985.

3. The plaintiffs, Benjamin C. Osgood and Joseph Barbagallo, Trustees of Chestnut Street Realty Trust u/d/t dated January 24, 1986, recorded in Essex North District Registry of Deeds at Book 2177, Page 110, are the owners of Lots 4, 6 and 10 as shown on the Plan.

4. The plaintiff, Benjamin C. Osgood, Trustee of Island Piece Realty Trust u/d/t dated January 24, 1986 and recorded at the Essex County North District Registry of Deeds in Book 2177, Page 101, is the owner of Lots 3, 5, 8 and 11 as shown on the Plan.

5. The plainiffs, Joseph J. Barbagallo and Benjamin C. Osgood, Trustees of General Store Trust u/d/t dated September 23, 1980 and recorded at Essex County North District Registry of Deeds in Book 1456, Page 76, are the owners of Lots 2, 7, 9 and 12 as shown on the Plan.

6. All of the lots shown on the Plan are located on Chestnut Street and are in the R-3 zoning district under the North Andover Zoning By-law (the "By-law") in which single-family dwellings are allowed as a matter of right.

7. On or about October 30, 1987, the plaintiffs submitted to the Planning Board four applications for special permits to construct four separate common driveways to service lots 2 through 12 as shown on the Plan, pursuant to Section 2.30.1 of the By-law.

8. The Board held an initial public hearing on the plaintiffs' applications on December 3, 1987. Several additional hearings were held after the granting of extensions by the plaintiffs.

9. A final hearing was held on November 17, 1988, at which time the Board voted to deny the applications. The Board issued a written decision denying the application dated November 28, 1988, which was filed with the Town Clerk on November 30, 1988.

10. Following separate meetings with the North Andover Conservation Commission (the "Commission"), the plaintiffs agreed to revise the applications in accordance with the wishes of the Commission to show only one wetlands crossing to access the lots.

11. To conform to the requirements of the Commission, the plaintiffs revised and resubmitted their applications to the Board to show four common driveways, but reducing the number of wetlands crossings from three to one. The new applications were submitted on October 17, 1988. The Board held a hearing on the plaintiffs' revised applications on November 3, 1988. On December 15, 1988, the Board voted to deny the applications. The Board issued a written decision of denial dated December 19, 1988 which was filed with the Town Clerk on December 21, 1988.

I also further find and rule on all the evidence as follows:

12. The Planning Board's findings in the initial action in which four separate crossings of the wetlands by common driveways proposed by the plaintiffs were as follows:

1. The applications adhere to the bylaw restriction that not more than three (3) lots be served by a common driveway.

2. The specific location of each common driveway is not appropriate due to the extensive area of wetlands found adjacent to each lot involved with the application before us and we find that multiple driveway crossings causes extensive disruption and dramatically alters the characteristics of a wetland resource area. The Board has received correspondence from the NACC dated 11/19/87 which states: "The applicant proposed a series of common driveways which when reviewed cumulatively, have a substantial net negative impact upon the resource area." (A total of 5,000 sq. ft. of wetland will be disturbed).

3. The common driveway design and location will adversely affect the surrounding properties, by creating a series of driveways within short distance (300') which lead to homes placed within the "backyards" of the front row of homes. The design does not allow for adequate privacy due to the short distance between the homes, their location and the use of driveways by other homeowners located within 30' of the front row of homes.

4. Inadequate standards have been placed on their design which will not meet public health and safety concerns for the following reasons:

a. Potential for flooding due to multiple crossing of a major wetland (Board of Health letter dated 12/3/87).

b. Providing a design which is very confusing and creating a situation where emergency vehicles will have difficulty responding to calls in a timely fashion (Letter from the Police Department dated 11/12/87 and Fire Department dated 11/6/87).

c. The driveways as designed do not meet the Town design guidelines for common driveways submitted to Town Meeting 1989. The regulations were not adopted by the Town, however, the Board utilizes these standards to measure a proposal in order to determine if the minimal degree of public safety is addressed.

d. The Board finds that the proposed four (4) common driveways as designed do not meet the minimum standards in providing for the public health, safety and welfare of the future residents of the homes or the Town at large. Also see Fire Department letter to the Board received 11/6/87.

Therefore, upon reaching the findings made above, the Board hereby denies the four (4) Special Permit applications before us to construct four (4) common driveways.

13. The Planning Board's findings in the second action in which the common driveways were clustered together were as follows:

1. The applications adhere to the bylaw restriction that not more than three (3) lots be served by a common driveway.

2. Inadequate standards have been placed on their design which will not meet public health and safety concerns for the following reasons:

a. Providing a design which is very confusing and creating a situation where emergency vehicles will have difficulty responding to calls in a timely fashion.

b. The Board finds that the proposed four (4) common driveways as designed do not meet the minimum standards in providing for the public health, safety and welfare of the future residents of the homes or the Town at large.

3. Conditions from the Department of Public Works not shown of plans:

a. The sewer main shall be extended from the terminus shown on the plan under the 36" RCP culvert to the centerline of Chestnut Street.

b. An eight inch water main shall be installed parallel to the proposed sewer pipe from Route 114 to the proposed water main within the common driveway. The section of water main shown between the sewer easement and the cul­de-sac island should be eliminated. An intermediate gate valve should be installed just south of the water service connection to the house on Lot 2.

c. All main sewer and water utilities shall be installed in easements dedicated to the Town.

d. Topography should be shown on Sheet 3 of the plans along the sewer route.

e. The entire length of the sewer should be shown in profile.

f. A sewer system extension permit from the Division of Water Pollution Control at the Mass. Department of Environmental Quality Engineering must be obtained prior to commencing sewer construction.

g. A complete set of As-Built Plans and profiles of all utilities shall be submitted and approved by the Division of Public Works prior to issuance of service connection permits.

h. A complete set of approved plans with up-to­date revisions must be on file with the Division of Public Works prior to the issuance of any permits for this site.

4. The Board further finds that the applicant has attempted to comply with the Zoning Bylaw, but the four applications viewed together is in fact a subdivision which contains 11 lots with a right-of­way of 40' which designs a "driveway" up to typical roadway standards found in subdivisions throughout Town. This proposal attempts to service a house located over 1,000' away from Chestnut Street by a driveway. The Board finds this design provides an unacceptable level of public safety to the future inhabitants of the homes by this driveway design.

Therefore, upon reaching the findings made above, the Board hereby denies the four (4) Special Permit Applications before us to construct four (4) common driveways.

14. The latter decision contains an error of law, for the plan does not constitute a subdivision, each lot having adequate frontage on Chestnut Street and direct access to the lot from the street. The difficulty comes in reaching the rear of the lots from the front thereof because of intervening wetlands. The attempt to accomplish this through common driveways does not constitute a statutory subdivision. Corcoran v. Planning Board of Sudbury, 406 Mass. 248 (1989).

15. The North Andover Zoning By-law contains a provision authorizing common driveways for not more than three lots if the Planning Board grants a special permit. [Note 1]

16. The Planning Board recommended to the 1988 Town Meeting [Note 2] that Section 2.30.1 be amended to define a common driveway and to insert a Section 8.7 setting forth certain driveway standards to be met (Exhibit No. 12). The amendment was rejected, but the Planning Board continues to apply the standards in considering the grant of a special permit.

17. The Zoning By-law has general criteria for the issuance of a special permit in Section 10:31. (Exhibit Nos. 3 and 17) which reads as follows:

1. The Special Permit Granting Authority shall not approve any such application for a Special Permit unless it finds that in its judgment all the following conditions are met:

a) The specific site is an appropriate location for such a use, structure, or condition;

b) The use as developed will not adversely affect the neighborhood;

c) There will be no nuisance or serious hazard to vehicles or pedestrians;

d) Adequate and appropriate facilities will be provided for the proper operation of the proposed use;

e) The Special Permit Granting Authority shall not grant any Special Permit unless they make a specific finding that the use is in harmony with the general purpose and intent of this By Law.

Subparagraph 2 thereof sets forth certain conditions which may be imposed with the grant of the Special Permit.

18. The police department expressed concern in a report dated November 12, 1987 as to its ability to find homes served by common driveways in an emergency (Exhibit No. 13).

19. The Fire Chief in a memorandum to the Town Planner expressed opposition to common driveways unless they met certain criteria (Exhibit No. 14). These included the generally accepted requirements in towns where common driveways are prevalent that there be hydrants every 500 feet, that the homes have residential sprinklers and that the street numbers of the homes be prominently displayed at the street entrance to the driveway.

20. The proposed common driveways as revised by the plaintiffs after consultation with the Conservation Commission consisted of four adjoining ten foot wide ways at Chestnut Street of which the center two would be paved and the remainder not. The driveways diverge as they lead to the sites of the proposed homes, but at the street there appeared to be one wide private way serving more than three of the lots.

The resemblance of the four adjoining driveways to a forty foot wide private way was the reason for the Planning Board's conclusion as to the plan constituting a subdivision. The plaintiffs are able to comply with the requirements of the Subdivision control Law but would lose the zoning protection afforded by the ANR plan.

The plaintiffs attack the provisions of the driveway By-law as constituting a violation of the principles enunciated in SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984) wherein it was held that a use permitted as of right cannot be made subject to the grant of a special permit. The plaintiffs accordingly urge the Court to follow SCIT and to give a "site plan gloss" to the special permit requirement which would lead to a different standard of review. Prudential Insurance Co. of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 282-283 (1986). See also Auburn v. Planning Board of Dover, 12 Mass. App. Ct. 998 (1981). The Planning Board for its part argues that no one is entitled to a special permit and that it has discretion not to grant those requested by the plaintiffs. The Planning Board's position may be a correct statement of the law as it applies to a special permit for a principal use, but in instances where the principal use is permitted and the special permit relates to access only, any legal difference between such a special permit and a site plan is difficult to discern or justify. The only similar case in the reports is Shea v. Town of Danvers, 21 Mass. App. Ct. 996 (1986) where the Appeals Court resolved an apparent conflict between a provision of the Danvers By-law relative to the crossing of a more restricted zone to reach a less restricted zone with those specifically applicable to special permits. In Shea the Court held that access was a "use" properly subject to the requirement of a special permit in accordance with G .L. c. 40A, §9 and that therefore Shea had to satisfy the special permit provisions of the By-law. However, the Court found that the Board could not apply the By-law in such a way as to make the owners unable to use the land to which access was sought. In Shea the Appeals Court also rejected the argument made by the plaintiffs here that a permitted use could not be subject to an access special permit, and that decision is controlling here.

The original plan for the common driveways complied with all but two of the special criteria [Note 3] and its approval was recommended by the Planning Department. After the public hearings the plaintiffs sought to lessen the impact on the wetlands to meet the Conservation Commission's objections but was unable to obtain the Planning Board's assent. The Court also finds the massed driveways objectionable since they separately serve three individual homes only on paper. It is clear that on the ground and at the entrance to the development from the public way access to all eleven homes will be over the same common driveway although ultimately there is a divergence. This conflicts with the mandate of the By-law and is in violation thereof. It may well be that each of the driveways may be set apart by a grassy strip of five to ten feet and paved with appropriate address markers installed at the street frontage without an adverse affect on the wetlands. This would remove my objections to conflict with the By-law without requiring the plaintiffs to seek a variance from the Zoning Board of Appeals. Since the Planning Board's second decision, as I have already noted, is wrong as a matter of law and must be remanded in the light of my findings, the plaintiffs at the new hearing may elect to present a modification of the massed scheme. Alternatively the Board may elect to approve the initial proposal for the driveways in which event the plaintiffs, if the Conservation Commission disagrees, may appeal to the Department of Environmental Protection.

Insofar as Miscellaneous Case No. 131188, appealing the Board's initial decision, is concerned I also remand the matter to the Planning Board. In each action the Board should consider the imposition of reasonable conditions to meet the problems anticipated in an emergency such as the installation of hydrants at stated distances, the adequacy of the driveway to accommodate fire engines and ambulances, the installation of residential sprinklers and the permanent identification of the properties both at the street and on the homes. The Board's reliance in its decision on the impact on the wetlands is a misunderstanding of its jurisdiction. Corcoran, supra at page 249.

The Court will retain jurisdiction in both actions.

Judgment accordingly.