K. HOVNANIAN AT TAUNTON, INC. vs. TAUNTON PLANNING BOARD and LINCOLN A. DEMOURA, WILLIAM PATRICK LANE, JOHN L. VIVEIROS, MICHAEL J. DELANEY, JOHN J. FLANAGAN, ROLAND R. ROBILLARD and EDWARD W. DOOLEY, as members of the TAUNTON PLANNING BOARD.

By Miscellaneous Case No. 131240, which was filed on December 22, 1988, the Plaintiff, K. Hovnanian at Taunton, Inc. ("Hovnanian") , seeks judicial review, pursuant to G.L. c. 41, §81BB, of a decision of the Defendant, Taunton Planning Board ("Board"), denying approval of a Definitive Subdivision Plan entitled "Society Hill at Taunton", dated September 21, 1988 ("Definitive Plan") (Exhibit No. 6), as well as an award of costs arising out of the Board's alleged bad faith in disapproving such Plan. By Miscellaneous Case No. 132995, which was filed thereafter on March 14, 1989, Hovnanian also appeals, pursuant to G.L. c. 41, §81BB, from a further decision of the Board, denying approval of a Revised Subdivision Plan entitled "Society Hill at Taunton", dated January 19, 1989 ("Revised Plan") (Exhibit No. 8), as well as an award of costs arising out of the Board's alleged bad faith in disapproving this Plan. These cases were consolidated for trial on July 25, 1989.

The matter was tried on Jauary 29 and February 5 of 1990, at which times the Court appointed a stenographer to record and transcribe the testimony. Twenty-four (24) exhibits were admitted into evidence and five (5) chalks (Chalks No. 2A, 4A, 6A, 8A and 8B) were submitted to assist the Court. All exhibits and chalks are incorporated herein for purposes of any appeal. The Plaintiff Hovnanian presented testimony from Michael Franco, Legal Counsel to the K. Hovnanian Companies, Thomas Hansen, Consulting Environmental Engineer, Harold Moore, Civil Engineer, Craig Sherman, Commissioner of the Taunton Department of Public Works, Mark LaChance, Developer and Excavator and John Viveiros, Lincoln DeMoura and William Patrick Lane, all three of whom were members of the Taunton Planning Board at all times relevant hereto. The Plaintiff also presented the deposition testimony of Ronald Arieta, Director of Taunton's Park and Recreation Department. The Defendants limited their presentation to the questioning of the Plaintiff's witnesses.

Upon consideration of all of the evidence before the Court, I find the following facts to be most pertinent hereto:

1. Hovnanian, a residential real estate development company, is the holder of an option to purchase some 138.76 acres of undeveloped farmland located in a residentially zoned district of the City of Taunton ("Locus"). As shown on various plans and photographs, Locus is bounded to the east by Mt. Hope Pond, which is a portion of, and is at times referred to as, Three Mile River, to the west by South Walker Street and the south by the Town of Dighton (See Exhibits No. 2, 4, 6, 8 and 11). As shown thereupon, Route 44 lies northerly of, but does not abut, Locus. Hovnanian proposes to construct a residential subdivision, consisting of approximately 154 single-family house lots, on Locus.

2. Hovnanian's First Preliminary Subdivision Plan of Locus, entitled "Society Hill at Taunton", dated July 30, 1987 ("Preliminary Plan") (Exhibit No. 2), depicted approximately 154 single-family house lots, each containing at least 25,000 square feet of land. This Plan was presented to the Board for its approval in September of 1987. Thereafter, on December 17, 1987, the Board voted unanimously to approve the Preliminary Plan and issued a "Certificate of Modification and Approval" (Exhibit No. 3) accordingly.

3. On March 3, 1988, Hovnanian submitted a Second Preliminary Subdivision Plan of Locus, dated March 3, 1988 ("Second Preliminary Plan") (Exhibit No. 4), to the Board. This Second Preliminary Plan exhibited the same general layout of the subdivision, but contained two primary changes, one of which was the elimination of "pork chop" lots on cul-de-sacs and the other of which was a reduction in the number of wetland crossings.

4. At a duly convened meeting held on May 19, 1988, the Board unanimously approved the Second Preliminary Plan and issued a "Certificate of Modification and Approval" (Exhibit No. 5). This Certificate, which was formally issued on May 26, 1988, provided that the Second Preliminary Plan "be modified to incorporate the following when preparing a Definitive Plan":

1) All of the comments and suggestions received in letters of input received from various City departments and Agencies to the Taunton Planning Board relative to said subdivision;

2) Close adherence to rules and regulations will be required due to the magnitude of this project;

3) A fully detailed impact statement is required for this development.

5. Hovnanian furnished the Board with its proposed Definitive Subdivision Plan of Locus, and an application for approval of the same, on September 21, 1988. This Plan contained no significant changes from the Second Preliminary Plan. In conjunction with its Definitive Plan, Hovnanian also submitted an Environmental and Economic Impact Statement to the Board (Exhibit No. 10).

6. On November 8, 1988, the Taunton Board of Health informed the Board that it approved Hovnanian's Definitive Plan, subject to there being adequate municipal water and sewer services available to accommodate the development.

7. By letter to the Board dated November 14, 1988 (Exhibit No. 7), Fernand Medeiros, Acting City Engineer, commented on Hovnanian's proposed sewerage tie-in to the City sewer line on South Walker Street. Specifically, Medeiros stated that this line, a portion of which runs through the neighboring Town of Dighton, as well as the related pumping station and waste water treatment plant, are of "adequate capacity to process the additional discharge flow from the Society Hills Development".

8. The Board held a public hearing on Hovnanian's Definitive Plan on November 17, 1988. Hovnanian's representatives attended this meeting, but the Board voted to close the hearing prior to the completion of their presentation.

9. On December 1, 1988, without giving Hovnanian prior notice thereof as required by G.L. c. 41, §81T, [Note 1] the Board held another public hearing at which it reviewed the Definitive Plan. At this meeting, the Board voted to disapprove the Plan for the following reasons:

1) This is not a viable subdivision - - there is no evidence that sewer is available.

2) The inability of this project to tie into City water. There is no reasonable plan to tie-in to water. Also the matter of securing easements to tie-in has not been established;

3) The matter of the amount of land which must be set aside for recreational purposes there is not sufficient recreational area, either active, or passive, in that area of the City of Taunton. This is a serious drawback;

4) There is a question regarding the site-stopping distance at one of the roadways.

These reasons are set forth in the Board's "Certificate of Final Action", dated December 5, 1988 ("Revised Definitive Plan") (Exhibit No. 7).

10. On January 20, 1989, Hovnanian submitted a Revised Definitive Subdivision Plan of Locus ("Revised Definitive Plan" or "Revised Plan) (Exhibit No. 8) to the Board.

11. Hovnanian's Revised Plan addresses the Board's concerns regarding "site-stopping distances" and the retention of "recreational area", by relocating and redesigning certain roadways, [Note 2] and by designating approximately twenty percent (20%) of the subdivision land, or thirty (30) acres more or less, as open, active and passive recreational area. In addition, the Revised Plan includes a schematic entitled "Water Extension Alternatives Conceptual Alignment Plan" (See Exhibit No. 9 and Chalk No. 8B), which presents alternatives for connecting the subdivision to City water. As shown on said Water Extension Alternatives Plan, these alternatives include running an additional 8" line down South Walker Street; replacing the existing 8" line with a 12" line; or obtaining private easements to carry water from Route 44 to Locus.

Hovnanian's Revised Plan also addresses the issue of sewerage, by calling for a tie-in to the existing sewer line on South Walker Street, which line, as discussed in Hovnanian's Environmental and Economic Impact Statement and in the city Engineer's letter to the Board dated November 14, 1988 (See Finding No. 7), is of sufficient capacity to accommodate the additional flow from the proposed Society Hill subdivision. [Note 3]

12. The Taunton Board of Health issued its approval of Hovnanian's Revised Definitive Subdivision Plan on February 9, 1989.

13. By letter dated February 13, 1989, Taunton Fire Chief, Gilbert Levesque, informed the Board that the water alternatives shown on Hovnanian's Revised Definitive Plan could solve the Board's concern with ensuring an adequate "fire flow" along South Walker Street. Similarly, by letter dated February 16, 1989, John Patota, Assistant Commissioner of the Taunton Department of Public Works, notified the Board that a preliminary review of Hovnanian's Water Extension Alternatives Plan "indicates that each of the proposed alternatives will meet design standards for fire flow and pressure requirements" (See Exhibit No. 9).

14. At a public hearing held on February 16, 1989, the Board reviewed the Revised Plan and voted unanimously to reaffirm the "Certificate of Final Action" it had issued on December 5, 1988 (See Finding No. 8).

15. The Board issued a formal "Certificate of Final Action" with respect to Hovnanian's Revised Plan on February 22, 1989 (See Exhibit No. 9). In such Certificate, the Board cites the following reasons for its disapproval:

1) There is no sewerage tie-in;

2) There are no easements for City water;

3) Recreational area provision was still not completely resolved.

16. Pursuant to Article II, Sections 211 (2) (A) and (C) of the Taunton Subdivision Rules and Regulations ("Rules") (Exhibit No. 1), the Definitive Plan must be accompanied by the following prior to subdivision approval:

(A) Statement by the Water Department Supervisor of the conditions on which the City will apply water to the subdivision; also, a statement approving the diameters, lengths and locations of water mains, valves and hydrants proposed within the subdivision;

(C) If interconnection with the Taunton municipal sewerage system is proposed, a statement by the Sewer Department Supervisor of the conditions on which the City will sewer the subdivision; also a statement approving the diameter, location, slope and invert elevations of the sanitary sewers proposed within the subdivision;

17. Article II, Section 221(3) of the Rules requires that the Definitive Subdivision Plan include a Street and Utilities Plan and Profile for each proposed street, which Plan and Profile shall show the following:

Proposed layout of storm drainage, and water supply systems, hydrants, sewerage disposal systems, and dimensions of gutters, and method of carrying water to the nearest water course or easements for drainage as needed whether or not in the subdivision . . . (emphasis supplied).

18. Article III, Section 305(1) of the Rules provides that:

Where necessary, easements for utilities, drainage systems, or pedestrian or bicycle paths shall be provided. Such easements shall be at least twenty (20) feet wide, and whenever possible, shall be centered on rear or side lot lines, rather than across lots.

19. Article III, Sections 315 (1) and (3) of the Rules provide as follows:

1) Sanitary sewers, including all appurtenances, shall be designed to serve as many lots in a subdivision as possible, and to provide connection to municipal sewerage system, as approved by the sewer supervisor [See also Article II, Section 211].

3) No portion of sewerage system shall be approved if it requires a connection to municipal system over land of other owners, unless appropriate easements are first obtained.

20. Article III, Section 302 of the Rules provides the following with respect to "Parks and Open Spaces":

Before approval of a plan, the Board may, in proper cases require the plan to show a park or parks suitably located for playground or recreation purposes, or for providing light and air. The park or parks shall not be unreasonable in area in relation to the land being subdivided, and to the prospective uses of such land. The Board may, by appropriate endorsement on the plan, require that no building be erected upon such park or parks without its approval for a period of three (3) years from the date of approval of a subdivision. . . .

The amount of land to be set aside for open space and recreation should range from a minimum of 10% of the total area in a small subdivision to 25% in a large planned unit development and large subdivisions. Such land can be retained for use by residents (private) or deeded to the City for public use.

In cases where the Planning Board denies approval of a subdivision plan, the applicant therefor is entitled to appeal such decision to this Court. G.L. c. 41, §81BB. The Court then conducts a de nova hearing, the scope of which is limited to the Planning Board's reasons for disapproving the plan, at which it hears all pertinent evidence, makes independent findings of fact and, on the facts so found, annuls the decision if it is found to exceed the authority of the Board. Rettig v. Planning Board of Rowley, 332 Mass. 476 , 479 (1955); Mac-Rich Realty Construction, Inc. v. Planning Board of Southborough, 4 Mass. App. Ct. 79 , 81 (1976); Canter v. Planning Board of Westborough, 4 Mass. App. Ct. 306 , 307 (1976); Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). This burden of proof rests with the applicant for subdivision approval. Fairbairn at 173. As a general rule, the Planning Board should approve the plan when it complies with the reasonable rules and regulations of the Planning Board and the recommendations of the Board of Health. 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).

In the matters presented herein for review, the Board's reasons for disapproving Hovnanian's Definitive and Revised Definitive Subdivision Plans are based on the following: 1) the absence of a sewerage tie-in; 2) the absence of easements for City water; and 3) the absence of sufficient recreational area. On their face, the concerns of the Board appear to be consistent with that portion of G.L. c. 41, §81M, which reads in relevant part as follows:

The subdivision control law has been enacted for the purpose of protecting the safety, convenience and welfare of the inhabitants of cities and towns in which it is, or may hereafter be, put in effect by . . . ensuring sanitary conditions in subdivisions and in proper cases parks and open areas. The powers of a planning board . . . under the subdivision control law shall be exercised with due regard for . . . securing adequate provision for water [and] sewerage (emphasis added). . . .

However, Section 81M also states that a subdivision plan shall be approved if it "conforms to the recommendation of the board of health and to the reasonable rules and regulations of the planning board. . . ." In view of these statutory principles and, upon consideration of all of the evidence before the Court, I find and rule, for the reasons hereinafter stated, that the decisions of the Taunton Planning Board exceeded its authority and must be annulled.

A. The Absence of a Sewerage Tie-In

Planning Board rules and regulations may set forth guidelines for the installation of municipal services, such as sewerage and, as discussed infra, water supply systems. G.L. c. 41, §81U; Castle Estates, Inc. v. Park & Planning Board of Medfield, 344 Mass. 329 , 333-334 (1962). As to the issue of installing sewerage services, the pertinent portions of the Taunton Subdivision Rules and Regulations are Article II, Sections 211(2) (A) and (C) and 221 (3), and Article III, Sections 315 (1) and (3).

The same layout for sewerage disposal is presented on both the Definitive Plan and the Revised Definitive Plan. Specifically, Hovnanian's proposed sewerage system provides for a tie-in with the existing City sewer line on South Walker Street. As testified to by experts at trial, and as shown by other competent evidence discussed herein, this system is operationally capable of accommodating the Society Hill subdivision. In fact, the decision of the Board includes no findings whatsoever that the design of the proposed system is in violation of any applicable Rule or Regulation. Nonetheless, however, the Board asserts, without so specifying in this portion of its decision, that its disapproval of Hovnanian's Plan was not so much based on the physical absence of a sewerage connection, as on Hovnanian's failure to submit definitive proof that such system had been approved by pertinent local authorities (i.e., the Taunton Sewer Department Supervisor), as required by Article II, Section 211(2) (C) and Article III, Section 315(1) of the Rules, or by the Town of Dighton. The Board's concerns thus focus squarely on the functional capability of the proposed sewerage ti-in, rather than the capability of the system as designed for the subdivision. Inasmuch as I have found sufficient evidence in the record before the Court to indicate the adequacy of Hovnanian's proposed sewerage tie-in, and as I find that questions as to the viability of a proposed subdivision sewerage system, which questions the Board focuses on herein, are best reserved for the Board of Health and Building Inspector at the time building permits are applied for, the Board acted both unreasonably and prematurely in asserting "the absence of a sewerage tie-in" as a basis for its disapproval of Hovnanian's Definitive and Revised Definitive Subdivision Plans. See Fairbairn supra.

B. The Absence of Easements for City Water

As part of its Revised Definitive Subdivision Plan, Hovnanian submitted a schematic of proposed water extension alternatives, two of which do not require the prior issuance of easements under Article III, Section 305(1) of the Rules. Evidence introduced at trial reveals that all of the alternatives shown on this plan address and resolve the Board's concern with the need for adequate water flow from the line on South Walker Street. I note further that the Board's decision is silent with respect to the functionality or capacity of the water supply system proposed by Hovnanian and, from the evidence, conclude that the system, as designed, complies with the aforesaid Rules and Regulations. Additionally, testimony offered at trial reveals the Board's concern with the "adequacy" of Taunton's water supply, as it pertains to the Society Hill subdivision. Inasmuch as a planning board may not deny a developer the opportunity to subdivide his property, not because of any impropriety in the proposed plans for its use, but because the municipal water supply will be further depleted by use in the buildings to be constructed, I find that the Board's reasoning offers no support to this portion of its decision. See Daley Construction Co., Inc. v. Planning Board of Randolph, 340 Mass. 149 , 152, 156 (1959); Pieper v. Planning Board of Southborough, 340 Mass. 157 , 162-164 (1959). Moreover, I note that questions pertaining to the adequacy of water flow, pressure or supply, as they relate to the subdivision itself, are also best reserved for the building permit/plumbing permit stages of development. The Board thus acted improperly and exceeded its authority in stating "the absence of easements for city water" as a basis to its decision.

C. Absence of Sufficient Recreational Area

In the instant matter, Hovnanian's Revised Definitive Subdivision Plan calls for the retention of some thirty (30) acres of land, or twenty percent (20%) thereof, as active, passive and open recreational area. The Board asserts that the quantity, and more specifically the physical characteristics, of the land set aside by Hovnanian are unacceptable. The testimony introduced at trial, however, reveals that the question of what quantity and what portion of the subdivision land will satisfy the site's recreational needs is a matter reserved to the developer and the Taunton Park and Recreation Commission. I find such testimony to be in conflict with Article III, Section 302 of the Rules, which provides in relevant part as follows:

. . . The Board may, by appropriate endorsement on the [subdivision] plan, require that no building be erected upon [the land set aside for a] park or parks without its approval for a period of three (3) years from the date of approval of a subdivision . . . (emphasis supplied).

Here, the Board affixed no such endorsement to either the Definitive or Revised Definitive Plan. In light of such discrepancies between the actions of the Board and the Rules and Regulations which set the guidelines for such action, I find that the Board acted unreasonably and exceeded its authority in effectively conditioning its approval of the Revised Subdivision Plan on Hovnanian's donating certain land within the Society Hill subdivision to the City, without just compensation therefor. G.L. c. 41, §81Q; Aronson v. Planning Board of Sharon, 346 Mass. 598 , 603-604 (1964).

In consideration of the foregoing, I find and rule that the decision of the Taunton Planning Board dated February 22, 1989, denying Hovnanian's Revised Definitive Subdivision Plan, exceeded its authority and must be annulled. The matter is hereby remanded to the Taunton Planning Board for further action not inconsistent herewith. Having so ruled, I find that Miscellaneous Case No. 131240, which pertains to the Board's disapproval of Hovnanian's Definitive Subdivision Plan, appears to be moot and, accordingly, is dismissed.

As to the Plaintiff Hovnanian's claims for costs arising out of the Taunton Planning Board's alleged bad faith in disapproving the Definitive and Revised Definitive Plans, I find insufficient evidence in the record before the Court to justify such an award and dismiss the claims accordingly.

Both the Plaintiff and Defendants have submitted requests for findings of fact and rulings of law, which I have considered. Certain of their respective requests are incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings as to those facts and rules of law which I deem most pertinent hereto.

Judgment accordingly.