MISC 135526

March 14, 1991

Essex, ss.



By complaint filed July 12, 1989, Frank S. Carbone and Carolyn W. Carbone ("Plaintiffs") appeal, pursuant to G.L. c. 41, §81BB and G.L. c. 185, §l (k), from the June 23, 1989 decision of the Beverly Planning Board ("the Board" or "Defendants") denying their application for approval of a definitive subdivision plan ("the Plan") (Exhibit No. 7) showing a subdivision of land located at Cove Circle off Eisenhower Avenue in Beverly, Massachusetts. Plaintiffs request that this Court annul the June 23, 1989 decision of the Board and find that the decision was arbitrary, capricious, unreasonable, an abuse of the Board's discretion and inconsistent with the purpose and intent of the Board's Rules and Regulations ("the Rules and Regulations") (Exhibit No. 1). Plaintiffs further request that this Court order the Board to approve the Plan and to grant a waiver of the Rules and Regulations.

On November 16, 1990 Defendants filed a Motion in Limine to Exclude Evidence of Prior Decisions of the Planning Board which motion was denied on November 21, 1990.

This case was tried on November 21, 1990 at which time the proceedings wer transcribed by a court-appointed reporter. Four witnesses testified and seventeen exhibits were introduced into evidence. Exhibit Nos. 11A-C were introduced for identification only. A chalk was submitted to assist the Court. All of the exhibits and the chalk are incorporated herein by reference for the purpose of an appeal. After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. Plaintiffs reside at 186 Hart Street in Beverly, Massachusetts and Plaintiff, Carolyn W. Carbone is the owner of certain property ("Locus") on Eisenhower Avenue in Beverly, as described in a deed recorded in Book 9085, Page 308 in the Essex South District Registry of Deeds (Exhibit No. 3) which property is the subject of this action.

2. On September 1, 1988, Plaintiffs submitted to the Board a preliminary plan for a seven-lot subdivision ("the Preliminary Plan") of Locus. The subdivision proposed the construction of two roadways to service seven lots.

3. On September 13, 1988, the Board voted to disapprove the Preliminary Plan.

4. On March 30, 1989, Plaintiffs submitted an Application for Approval of the Plan to the Board (Exhibit No. 4) and on the same date submitted a Notice of the Submission of an Application for Approval of the Plan to the Board of Health of the City of Beverly and the City Clerk of Beverly (Exhibit No. 5). In accordance with G.L. c. 41, §§81L et seq., the Board caused to be published in The Beverly Times, a newspaper having general circulation in the City of Beverly, a Notice on the Application of Plaintiffs for a public hearing to be held at the Beverly City Hall.

5. On May 16, 1989, the Board held a public hearing on the application for approval of the Plan. On June 20, 1989, the Board voted to disapprove the application which decision was filed with the Beverly City Clerk on June 23, 1989 (Exhibit No. 2).

6. The Board's decision cited the following three factors as reason for its denial of the Plan:

1) the plan shows a dead-end roadway with a length well in excess of the 500' maximum length mandated by the Beverly Subdivision Control Law [Note 1];

2) the plan shows only one sidewalk on the proposed Eisenhower Avenue Extension, and the Beverly Subdivision Control Law requires two sidewalks; and

3) the documentation provided fails to provide adequate safeguards to protect adjacent property owners from the effects of blasting.

7. Section IV (A) (5) (a) of the Rules and Regulations provides:

Dead-End Streets

For the purposes of this section, any proposed street which intersects solely with a dead-end street shall be deemed to be an extension of the dead-end street. Dead­end streets and their extensions, if any, shall not be longer than five hundred feet (500') (measured between the sideling intersecting street and the center of the turn-around) unless in the opinion of the Board, a greater length is necessitated by topography or other local conditions.

8. Section V (D) (1) and (2) of the Rules and Regulations provide:

1. Sidewalks shall be constructed within the subdivision separated from the pavement area by a seeded strip, as provided in subsection F.

2. The sidewalk shall extend the full length of each side of the street and shall be a minimum width of five feet (5').

9. In order to construct Eisenhower Avenue Extension as shown on the Plan, it would be necessary to remove, by blasting or otherwise, a significant amount of ledge. However, there is no provision in the Rules and Regulations regarding blasting.

10. The proposed subdivision is to be built off of Eisenhower Avenue, a public way located within the City of Beverly, and there are two dead-end streets in the subdivision ("the Eisenhower Avenue extension" and "Cove Circle"). The closest intersection to the entrance of the proposed subdivision is the intersection of Eisenhower Avenue and Pasture Road. Neither the Eisenhower Avenue nor Cove Circle requires construction of more than 500 feet of roadway. There is a distance of approximately 505 feet between the intersection of Eisenhower Avenue and Pasture Road and the present terminus of Eisenhower Avenue where the proposed subdivision is to begin. There is a distance of 906 feet from the intersection of Eisenhower Avenue and Pasture Road and the end of the proposed Eisenhower Avenue extension. There is a distance of 792 feet between the intersection of Eisenhower Avenue and Pasture Road and the end of the Cove Circle as proposed.

11. By letter dated June 16, 1989, Plaintiffs requested a waiver from the requirements of the Rules and Regulations of the City of Beverly Planning Board that mandated that sidewalks be installed on both sides of a subdivision roadway and in place thereof permit construction of a single sidewalk on one side of the proposed Cove Circle roadway (Exhibit No. 12). On May 16, 1989, the Board voted to deny the waiver without setting forth its reasons as to why two sidewalks would be more appropriate.

12. The Cove School, a public elementary school in the City of Beverly abuts the proposed Cove Circle Subdivision at the present terminus of Eisenhower Avenue.

On an appeal from the decision of a Planning Board, the Court's review is confined to the reasons for disapproval of the subdivision plan as set forth in the Planning Board's decision. Canter v. Planning Board of Westborough, 4 Mass. App. Ct. 306 , 307 (1976). The trial is a de novo proceeding in which the Court makes its own findings of fact and then determines whether the decision of the Planning Board was arbitrary and unreasonable or in accordance with the applicable law. The Board in this action rested its decision on the three grounds set forth above.

The first ground was based on the Board's inclusion of a portion of Eisenhower Avenue in calculating the length of the dead- end streets in the proposed subdivision. The issue presented here was recently decided by this court in Federline v. City of Beverly, Land Ct. Misc. Case No. 129758 (1990). In that case, this Court ruled that the Planning Board of Beverly erroneously included a public way as part of a subdivision when making calculations pursuant to its dead-end requirements. This Court explained that "the Rules and Regulations necessarily relate to private ways, the primary focus of planning board concerns." Federline at 6. G.L. c. 41, §81M specifically provides that the subdivision control law is to be ". . . put in effect by regulating the laying out and construction of ways in subdivisions providing access to the several lots therein, but which have not become public ways . . . (emphasis added)." The Board argues that there are public safety concerns here which provide a reasonable nexus between the safety purposes and the Rules and Regulation. It claims that those concerns validate its interpretation of Section IV (A) (5) (a) under G.L. c. 41, §81M which allows regulations "securing safety in the case of fire, flood, panic and other emergencies." I rule that the Board's interpretation of Section IV (A) (5) (a) so as to include Eisenhower Avenue exceeded its authority. Although the Board may interpret the Rules and Regulations so as to secure the safety of a proposed subdivision, that is not what the Board did in this instance. Here the Board included a portion of a public way as part of the proposed subdivision and G.L. c. 41, §81M grants no such authority. Further, the Board failed to prove that the proposed subdivision would create any significant safety problems. If anything, the proposed extension and cul-de-sac would appear to have a beneficial effect on vehicle movement in the area.

The second ground on which the Board based its decision was that the subdivision had only one sidewalk to serve the six residential houses located in the cul-de-sac on the Eisenhower Avenue extension. Plaintiffs argue that two sidewalks are unnecessary to adequately service the residents of the area and that the existing Eisenhower Avenue, which serves as the main entrance to the Cove School, is serviced by a single sidewalk. They claim that requiring two sidewalks would run contrary to the expressed limitations of the Rules and Regulations as set forth in G.L. c. 41, §Q, which prohibits cities and towns from establishing rules and regulations regarding the laying out, construction, alteration or maintenance of ways in a subdivision which exceed the standards and criteria commonly applied by the city or town to similar ways. I rule that Section V (D) (1) and (2) of the Rules and Regulations are not unlawful and that it was within the Board's discretion to apply those sections to the proposed subdivision.

I further rule that Plaintiffs are not entitled to a waiver as a matter of right and accordingly rule that the Board's refusal to waive the two-sidewalk requirement of the Rules and Regulations did not exceed its authority.

The third ground on which the Board based its decision concerns safeguarding adjacent property owners from the effects of blasting necessary for the proposed subdivision. G.L. c. 41, §81M provides and the Court has held that a planning board must approve of a plan that conforms to the recommendations of the Board of Health and the reasonable rules and regulations of the planning board. Canter at 308. A planning board cannot disapprove or condition a subdivision plan based upon matters not clearly set forth in the rules and regulations of that board, unless its decision is based on matters contained in the subdivision control law (G.L. c. 41- §§81K-81GG) or on the recommendation of the Board of Health. Baker v. Planning Board of Framingham, 353 Mass. 141 (1967); Castle Estates, Inc. v. Park & Planning Board of Medfield, 344 Mass. 329 (1962); Pieper v. Planning Board of Southborough, 340 Mass. 157 (1959); Daley Construction Co. Inc. v. Planning Board of Randolph, 340 Mass. 149 (1959). In the present case, blasting within the Commonwealth is controlled by other appropriate governmental agencies. Accordingly, I rule that the Board's decision as it related to blasting restrictions exceeded the scope of its authority.

Plaintiffs submitted a Post-Trial Memorandum and Defendants submitted a Trial Memorandum, Requests for Findings of Fact and Rulings of Law. I have not attempted to rule on each of said Requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

In summary, I rule that the Board did not exceed its authority insofar as it based its decision on the requirement that there be two sidewalks in the proposed subdivision. However, the Board's application of the dead-end requirement and its restrictions concerning blasting were unreasonable, arbitrary, capricious and as such exceeded the authority of the Board and to that extent the decision is annulled.

Judgment accordingly.


[Note 1] The Court assumes that this is a reference to the Rules and Regulations.