Miscellaneous Case No. 124061, was commenced by complaint filed July 17, 1987, pursuant to G.L. c. 41, §81BB, and amended on April 10, 1989. Plaintiff therein appeals a decision of the Planning Board of the Town of Danvers ("the Board") filed on June 30, 1987, denying an application for a definitive subdivision plan for the Danvers Executive Park ("Locus") filed on Septemer 5, 1986 ("the September 5th Plan"); Plaintiff further seeks an annulment of said decision and a declaration that the approval by the Board on June 28, 1988, of a preliminary subdivision plan filed on June 10, 1987, ("the June 10th Plan") was the approval of a definitive plan. Plaintiff further requests that this Court remand this matter to the Board and order the Board to approve as a definitive plan, the June 10th Plan.
In addition thereto, pursuant to G.L. c.240, §14A, Plaintiff questions the validity and applicability of various amendments to the Danvers Zoning By-Law ("the By-Law") adopted after the filing of the Preliminary Plan for Locus. Specifically, Plaintiff seeks a declaration that the subdivision plans submitted to the Board after September 5, 1986, on behalf of Plaintiff, constitute amendments of the September 5th Plan, within the meaning of the fifth paragraph of G.L. c. 40A, §6, and that the zoning applicable to Locus are those provisions of the By-Law in effect on February 7, 1986.
Miscellaneous Case No. 134345 was commenced by complaint filed May 18, 1989, pursuant to G.L. c. 41, §81BB. Plaintiff therein appeals a Certificate of Action of the Board filed on April 25, 1989, denying as a preliminary plan what Plaintiff alleges is a revised definitive subdivision plan submitted on January 17, 1989. Plaintiff also seeks the annulment of said Certificate of Action and a ruling that the June 10th Plan and January 17th Plan were applications for approval of revised definitive subdivision plans. Plaintiff further requests that this matter be remanded to the Board with an order that the Board approve as revised definitive plans both the June 10th Plan and the January 17th Plan.
On June 29, 1990, the Court allowed Plaintiff's Motion to Consolidate Miscellaneous Case Nos. 124061, 134345 and 137891. By Order dated December 17, 1990, Superior Court cases 89-379 and 89-667, two cases related to the matter to be decided herein, were transferred to the Land Court and designated Miscellaneous Case Nos. 155024 and 155025. By motion of Plaintiff, on February 25, 1991, Judge Cauchon was appointed, nunc pro tunc, to sit as a Superior Court Judge for the purpose of hearing aspects of the two transferred cases under Superior Court Jurisdiction. On February 22, l991, the Court allowed Defendants' uncontested Motion to Bifurcate Miscellaneous Case Nos. 137891, 155024 and 155025 from the above cases.
This case was tried on February 22, 1991. The trial proceedings were transcribed by a court-appointed reporter. One witness testified and thirty-one exhibits were introduced into evidence. At trial, the parties filed a Stipulation of Uncontested Facts which included therein exhibits 1 through 18. The exhibits are incorporated herein by reference for the purpose of any appeal.
After considering the evidence, testimony and pertinent documents, I make the following findings:
1. Plaintiff is the owner of Locus which contains approximately seventy acres and is located at 153 Andover Street in Danvers. Locus contains some land that was formerly farm land as well as a wooded area and wetlands.
2. On February 7, 1986, Plaintiff applied for approval of a preliminary subdivision plan for Locus (Exhibit No. 1) ("the February 7th Plan"). The February 7th Plan shows three lots of approximately 33.5 acres, 9.7 acres and 21.2 acres respectively.
3. When the February 7th Plan was submitted, Locus was partly in an Industrial I and partly in an Industrial II district. Subsequently, there were several zoning changes in the area of Locus the result being that since May 18, 1987, Locus has been located partly in the Route 114 Corridor Zone A District, partly in the Route 114/Centre Street/Collings Street Area Zone B District and partly in the Residence IIA Multi-family Residential District. On February 10, 1986, Danvers amended the By-Law enacting a one year moratorium on the issuace of building permits for property located within 1/4 mile of the center line of Andover Street. On June 23, 1986, a zoning amendment resulted in the rezoning of a portion of Locus from an Industrial II to a Residential II-A District. On May 18, 1987, a subsequent amendment resulted in the rezoning of a portion of Locus from an Industrial Zone to partly a Route 114 Corridor Zone A District and to partly a Route 114/Centre Street/Collins Street Zone B District (Exhibit No. 9).
4. On September 5, 1986, Plaintiff applied for approval of a definitive subdivision plan (Exhibit No. 2). The September 5th Plan divides Locus into more lots than the preliminary February 7th Plan and makes changes in the roadway shown on said February 7th Plan eliminating "Road B". The September 5th Plan depicts a subdivision consisting of sixteen industrial lots with a roadway extending through Locus from Southside Road to Andover Street.
5. By letter dated October 21, 1986, Plaintiff withdrew the preliminary February 7th Plan and requested the Board act on the
September 5th Plan (Exhibit No. 4).
6. On or about February 24, 1987, Defendant issued a draft Certificate of Action ("the Draft Certificate of Action") outlining a basis for a proposed denial of the September 5th Plan (Exhibit No. 6). In the Draft Certificate of Action, the Board recited the reasons for denial of the September 5th Plan, including, but not limited to the following:
5. The location of underground electrical lines as required by Sections IV.B.2.a.14 and V.D.4 of the Planning Board Rules and Regulations Governing the Subdivision of Land in Danvers, Massachusetts, Adopted: September 10, 1979 (hereinafter referred to as Subdivision Rules and Regulations) is not shown;
6. Design calculations for the water system were not submitted as required by Sections IV.B.2.c.1 and V.D.2.c of the Subdivision Rules and Regulations;
7. Design calculations for the sanitary sewer system were not submitted as required by Sections IV.B.2.c.2 and V.D.2.b of the Subdivision Rules and Regulations;
16. Zoning classifications are not shown as required by Section IV.B.2.a.1 of the Subdivision Rules and Regulations; and
18. Plans do not contain certification from a registered professional engineer that the design of sewers, drains, and water mains meet the requirements of the Subdivision Rules and Regulations, as required by Section V.D.1 of the Subdivision Rules and Regulations.
7. On June 10, 1987, Plaintiff submitted to the Board a revised application for approval of a subdivision plan ("the June 10th Plan") which sought to address the items listed in the Draft Certificate of Action (See Exhibit No. 10). The June 10th Plan was labelled as a definitive subdivision plan and showed a short extension of Southside Road terminating in a cul-de-sac and a subdivision of Locus into three large lots.
8. On June 30, 1987, Defendant denied the September 5th Plan, listing as reasons all of those listed on the Draft Certificate of Action (See finding #6 , supra). The Board refused to consider the June 10th Plan at that time.
9. On July 2, 1987, Plaintiff received a letter from the Director of the Community Development and Planning Department of the Town of Danvers stating that Defendant refused to accept the June 10th Plan claiming that it was improperly filed.
10. on July 14, 1987, Plaintiff submitted an application for approval of a preliminary subdivision to the Board (Exhibit No. 13a) which resubmitted the June 10th Plan.
11. By Certificate of Action dated July 1, 1988, the Board approved, as a preliminary subdivision plan, the June 10th Plan subject to certain conditions.
12. On January 17, 1989, Plaintiff submitted an application for approval of a subdivision plan for Locus ("the January 17th Plan") which was a modified version of the September 5th Plan and the June 10th Plan (Exhibit No. 16). The application was titled, "APPLICATION FOR APPROVAL OF PRELIMINARY PLAN REVISED DEFINITIVE PLAN."
13. By certificate of action dated April 25, 1989, Defendant voted to treat the January 17th Plan as an application for preliminary approval and further voted to deny said plan (Exhibit No. 19). The Board found that "the applicant failed to respond to reasonable requests for technical information relative to the subdivision."
As a preliminary matter, G.L. c. 41, §81S was amended effective April 7, 1987, requiring that a preliminary plan must be submitted before a definitive plan for nonresidential subdivisions. The amendment replaced language making such filing discretionary. Accordingly, I find that as the June 10th Plan (filed July 14th) and the January 17th Plan were filed without earlier preliminary plans, they must be and are hereby considered preliminary plans. Further, neither party questions the validity of the Board's approval of the June 10th Plan.
In appeals brought pursuant to G.L. c. 41, §81BB, the developer bears the burden of convincing the trier of fact that the decision of the Planning Board exceeded its authority. Rettig v. Planning Board of Rowley, 332 Mass. 476 , 478 (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). The trial is de novo and the duty of the reviewing justice is to hear all of the evidence, make independent findings and, on the facts so found, determine if the plan submitted to the Planning Board by the developer conforms to the reasonable rules and regulations of the Planning Board and to the recommendations of the Board of Health. G.L. c. 41, §81M; Rettig at 479; United Reis Homes, Inc. v. Planning Board of Natick, 359 Mass. 621 , 623 (1971); Mac-Rich at 81; Strand v. Planning Board of Sudbury, 5 Mass. App. Ct. 18 , 23-
24 (1977); Strand v. Planning Board of Sudbury, 7 Mass. App. Ct. 935 , 936 (rescript opinion). If any one of the grounds for failure to approve a plan is reasonable, the Court must uphold the Board's decision. Substantial conformance with the Rules and Regulations, as suggested by Plaintiff, is not sufficient.
In the present case, the September 5th Plan failed to conform to the Rules and Regulations for reasons including but not limited to the above-mentioned reasons described in the Certificate of Action. Further, the January 17th Plan fails to remedy all of the nonconformities of the September 5th Plan and is therefore not suitable for approval. Despite Plaintiff's challenge to the regulations, I do not find competent evidence or reasons to declare those regulations invalid or to find that there has been a waiver of such regulations.
The fifth paragraph of G.L. c. 40A, §6 proides:
If a definitive plan, or a preliminary plan followed within seven months by a definitive plan, is submitted to a planning board for approval under the subdivision control law, and written notice of such submission has been given to the city or town clerk before the effective date of ordinance or bylaw, the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of the first such submission while such plan or plans are being processed under the subdivision control law, and, if such definitive plan or an amendment thereof is finally approved, for eight years from the date of the endorsement of such approval, except in the case where such plan was submitted or submitted and approved before January first, nineteen hundred and seventy-six, for seven years from the date of the endorsement of such approval. Whether such period is eight years or seven years, it shall be extended by a period equal to the time which a city or town imposes or has imposed upon it by a state, a federal agency or a court, a moratorium on construction, the issuance of permits or utility connections.
The seventh paragraph of G.L. c. 240A, §6 further provides:
Disapproval of a plan shall not serve to terminate any rights which shall have accrued under the provisions of this section, provided an appeal from the decision disapproving said plan is made under applicable provisions of the subdivision control law. Such appeal shall stay, pending an order or decree of a court of final jurisdiction, the applicability to land shown on said plan of the provisions of any zoning ordinance or bylaw which became effective after the date of submission of the plan first submitted.
The Court has interpreted those paragraphs to provide freeze protection only to amended plans filed within seven months after submission of a preliminary plan. Arenstam v. Planning Board of Tyngsborough, 29 Mass. App. Ct. 314 (1990). In Arenstam, the Court explained that "any definitive plan, filed more than seven months after a preceding preliminary plan, is to be treated as a new plan, which gains protection under [G.L. c. 40A, §6] only from the date when it is filed and not as of the date of the filing of the preliminary plan." Id. at 317 quoting Green v. Board of Appeal of Norwood, 358 Mass. 253 , 257 n.4 (1970).
In the present case, the September 5th Plan was timely filed after the February 7th Plan and was entitled to G.L. c. 40A, §6 protections which were preserved by the present appeal of that Plan. However, inasmuch as I find that the September 5th Plan was not entitled to approval and the subsequent plans of Locus failed to correct all of the above-mentioned reasons for disapproval, I find that any protections afforded by the seventh paragraph of G.L. c. 40A, §6, have lapsed. (See Arenstam at 317).
In summary, I find that the Board did not exceed its authority in denying the September 5th Plan or the January 17th Plan, and properly approved the June 10th Plan as a preliminary plan.
Further, Locus is no longer afforded the zoning freeze protections of G.L. c. 40A, §6.
Judgment accordingly.
PHILLIP K. CIOLFI, TRUSTEE OF THE DANVERS EXECUTIVE PARK TRUST vs. THE PLANNING BOARD OF THE TOWN OF DANVERS, and THE TOWN OF DANVERS.