It is hard to believe that a four lot subdivision not only has spawned the two actions now before the Court as well as two previous proceedings in this forum, as well as a hearing before the Swampscott Conservation Commission followed by a superceding order from the Department of Environmental Quality Engineering ("DEQE", now the Department of Environmental Protection "DEP"). It is only speculation that the former plaintiff's political career may have its impetus in these difficulties.
Arthur C. Simms, the trustee of Simcas Realty and Investment Trust (the "plaintiff"), owner of the locus, and Chris Drucas, his first cousin, a former trustee, filed the above captioned cases pursuant to G.L. c. 231A and c. 40A, §17, seeking a declaration of rights and relief from the Swampscott town boards and officials listed in the captions. The plaintiff contests the denial of several approvals sought in connection with the construction of improvements on a four lot subdivision off Forest Avenue in the Town of Swampscott. The plaintiff's motion to consolidate the two actions was granted by Cauchon, J. March 19, 1990. The plaintiff has been before this Court in two related actions where on motions for summary judgment it was ruled that the plaintiff's definitive subdivision plan filed with the Swampscott Planning Board on November 21, 1984 had been constructively approved by the Board's failure to seasonably act upon the application for subdivision approval (Registration Case No. 14207-S), and that the Planning Board lacked authority to rescind that approval as the property had been mortgaged in good faith (Miscellaneous Case No. 127814).
The current cases arise from a conflict between conditions imposed by the DEQE and positions taken by the local Board of Health and Board of Public Works in relation to using the town storm drainage system as opposed to on-site drainage system to handle subdivision runoff. The complaints, however, seek only resolution of the Board of Public Works' denial of the plaintiff's application for a street opening permit and the building inspector's denial of a building permit which the Board of Appeals upheld on appeal by the developers, in their attempt to improve Lot 4.
A trial was held in the Land Court on December 3 and 4, 1990 at which a stenographer was sworn to record and transcribe the testimony. Twenty-eight exhibits were introduced into evidence, some with multiple parts, which are incorporated herein in the event of any appeal. Eight witnesses testified; the plaintiff called Ann M. Whittemore, chair of the Zoning Board of Appeals, Louis Gallo, building inspector, Kent Murphy, health officer for the Board of Health, David Leslie Phillips, member of the Board of Public Works, Chris Drucas, and Dolores Warren, an abutter and member of BFB Neighborhood Group, neighbors opposing the development. The defendants called Joseph D. Carter, of Carter and Towers Engineering Corp. (hired by the plaintiff), and Michael S. Schultz, then of SEA Consultants, an engineering firm hired by the neighborhood group. Finally, portions of the depositions of Daniel Kelly, chairman of the Board of Public Works, and Donald G. Brewer, superintendent of Public Works, were read into the record.
On all the evidence I find and rule as follows:
1. The plaintiff acquired title to two parcels of registered land which comprise locus, situated off Forest Avenue and Brooks Terrace in said Swampscott, as described in Certificate of Title No. 53635 issued by the Essex County Registry District of the Land Court dated June 29, 1984 (Exhibit No. 18); in the aggregate the parcels contain approximately 4.75 acres. The locus is characterized by precipitous ledge outcroppings and rough terrain; it also contains an area of "isolated land subject to flooding" (also referred to as the "intermittent pond" or "retention pond") as defined by chapter 310 of the Code of Massachusetts Regulations, §10.57, and committed to the jurisdiction of the local conservation commission or to that of DEP by G.L. c.131, §40. Lot 4 has frontage on Brooks Terrace which is, at least in part, a public way, and the subdivision roadway, Sacurd Way, [Note 3] will provide frontage for the remaining three lots.
2. There is believed to be an old drain pipe leading from the existing intermittent pond into the Town of Swampscott's Forest Avenue drainage system, which allegedly appears on old town plans (none of which are in evidence) and is referred to in various DPW memoranda (also not in evidence). [Note 4] The pipe has not been physically located nor shown on the plans before the Court, nor has it been definitively shown that it is in working order. The intermittent pond dissipates through evaporation and percolation, as well as presumably by some drainage through the existing pipe. The isolated land subject to flooding is proposed to be partially filled to accommodate the subdivision roadway with the retention pond enlarged to 4,800 square feet, twice what the DEP found would be required were a 100 year storm event to occur.
3. In its present state, the retention pond allows storm runoff to leach into the ground. There was concern expressed at trial that with the proposed filling of the present pond and an increase in its capacity, the already high water table which, it is believed, causes wet basements in nearby houses during storm events, would not be able to absorb the additional runoff. Moreover, the current town drainage system is inadequate, and a study conducted on behalf of the neighborhood (not in evidence) revealed that the flooding occurred both upstream and downstream from the locus. Michael Schultz, a registered professional engineer called as an expert by the defendants, testified, however, that the site runoff post-development of four homes with impermeable foundations but permeable lawns and drives, as opposed to current runoff, "wasn't a big increase."
4. The plaintiff initially held discussions with both the Health and Public Works Departments; the former first opposed storage of water on site and recommended draining into the public system, whereas the latter expressed concern about that system's capacity. The result, as reflected on the constructively approved plan, was to select onsite drainage with the proposed filling of 2,600 square feet of the isolated land subject to flooding and the creation of a 4,800 square foot compensatory storage area which would allow water to leach into the ground. Although not shown on that plan the existing pipe, if any, was to still function to whatever extent it does so now, i.e., current drainage conditions would remain the same pre- and post-development.
5. On November 21, 1984 the plaintiff filed a subdivision plan for approval by the Planning Board which showed a four lot subdivision, together with an environmental impact statement; Messrs. Drucas and Simms intended to develop two lots for personal residences and sell the remaining two parcels. A hearing of the Planning Board was held February 19, 1985, and the application withdrawn without prejudice; the plan was already constructively approved as determined in Land Court Registration Case No. 14207-S; a Town Clerk's Certificate to this effect issued February 20, 1986. [Note 5] Two months after that decision the Planning Board attempted to rescind their constructive approval, but that too was ineffectual (see Exhibit No. 2).
6. In addition to the Planning Board's inaction, the Board of Health likewise did not seasonably forward its recommendation regarding the 1984 plan to the Planning Board. Kent Murphy did, however, inform the plaintiff by letter dated February 6, 1985 that the current drainage system was unacceptable since in his opinion that water would collect and act as a mosquito breeding ground, as well as pose a nuisance to neighborhood children and aggravate existing pattern of water collecting in basements on adjacent and down stream properties (Exhibit No. 8, cf. Exhibit No. 14). The water table is high in the area. Subsequently the Board of Health changed its position to object to either method of drainage, at least until the Forest Avenue drainage system was expanded.
7. A notice of intent was filed with the Swampscott Conservation Commission on February 18, 1986 as the land was subject to periodic flooding and accordingly subject to that board's jurisdiction pursuant to the Wetlands Protection Act, G.L. c. 131, §40. The commission issued an Order of Conditions on March 25, 1986. Among the special conditions the conservation commission required that there be installed an impervious liner under the retention pond, that a twelve inch drainage pipe be installed and connected to the Town storm drainage system, and that the Forest Avenue system be improved before any development could take place.
8. The plaintiff appealed to DEQE on April 2, 1986 (Exhibit No. 21). The DEP conducted a site visit in early 1987 attended by Mr. Drucas, conservation commission members and neighborhood residents. The health officer and town engineer were invited, but did not participate. On January 30, 1987, the Department issued a superseding order of conditions (Exhibit No. 22) finding
This compensatory area will exceed the existing storage capacity and will have adequate capacity to store the runoff twice the volume of what is expected in a 100 year event. Currently, the pond barely has the capacity to handle a 100 year event. In addition, the applicant has proposed a slight decrease in the post-development runoff volume, as a result of landscaping over ledge and the reduction of existing slopes within the surrounding drainage area.
Furthermore, the DEP did not require the plaintiff to improve the municipal drainage system as
the proposed project complies with the Wetlands Protection Act Regulations and will not lead to an increase in flooding on the project site and/or abutting property. The Department, however, does recognize the surrounding street drainage problems that currently exist in this area. Please be advised that it is the Department's responsibility to insure that projects that are proposed in wetland areas do not aggravate or contribute to an already existing flooding problem. The Department does not have the authority to condition projects to rectify existing environmental problems. Therefore, the Department cannot uphold the Swampscott Conservation Commission's special conditions #13.
9. Any increase of drainage into the retention pond would be minimal if the subdivision is constructed so that only foundations and the subdivision roadway are impervious (notwithstanding the pond's impervious liner).
10. The plaintiff subsequently filed an amended definitive plan dated January 24, 1986, later revised February 19, 1988 (Exhibit No. 24) addressing the concerns of the Board of Health and Department of Public Works. Additions included more specific grading information, driveways located, and swale added to control runoff and increase the area draining into the retention pond. The Board of Health's chief concern was the alleged inadequacy of the Forest Avenue system, (see Exhibit No. 9) despite the fact that a year earlier Mr. Murphy, as health agent, had suggested the connection (see Exhibit No.8). An additional concern was blasting in connection with development of locus. The plan also reflected the drainage pipe in expectation that the Town would require diversion of runoff into the drainage system (see Exhibit No. 24, sheet 4).
11. In connection with the second definitive plan, the Board of Health held two public hearings in early 1986 and forwarded an adverse recommendation to the Planning Board dated March 17, 1986 (Exhibit No. 9). The Planning Board held a hearing on March 18, 1986 at which the Board of Health's opinion was discussed. However inartfully drafted, the Board of Health summarized its findings as follows:
The holding basin has an outlet connected by a piping system to Forest Avenue, [Note 6] 'as proposed the down stream drainage would not be effected [sic] until such time that there was an event of such major proportions that the entire community would have a drainage problem' [quoting Carter and Tower]. . . . It is at this time and for this reason that Forest Avenue and the down stream drainage system can not and should not receive any further drainage. The overflow piping should not be a part of the retention pond or holding basin as it would overburden a system that is already inadequate.
The proposed retention basin or holding pond is to be constructed by moving some of the pond to a new area. The new area will have an impermeable material or clay liner and the portion existing pond which remains will have a bottom which will remain undisturbed. [Note 7]
[The decision states that SEA Consultants and Carter and Tower differed on their interpretation of test boring results, but cited only the SEA findings.]
The wet area behind [abutters residences along Forest Avenue] have [sic] been addressed by the developer by several options. It is not clear as to which he is going to use. If the down stream Forest Avenue drainage system was adequate, a drainage system would be initiated to alleviate the drainage problem.
The proposed swale in both areas A & B [Note 8] and other swales pose serious questions as to health and safety as well as maintenance, cleaning and repair. The Board of Health would deem appropriate a piped system in place of a swale drain in this congested, residential neighborhood. Area A drainage is directed to the old railroad bed. The Massachusetts Electric Company has entered an objection to this. The matter has been referred to [the board of public works] and the town engineer . . . and is now under consideration.
The pond can create a health nuisance. Further concerns of the board are safety hazard areas not addressed. How are these going to be addressed? Who is going to maintain, clean and repair the pond? Who will judge the adequacy or cleaning, maintenance and repair? Will these statements be recorded on deeds to run with the land and who can revoke them? Surface drainage is now inundating Ms. Eglin on Banks Terrace. [northerly of locus] Will there be changes to redirect surface water? Has any attempt been made to alleviate surface drainage runoff problems?
The health officer believed further that the 1986 plan did not address the Board's concerns about flooding issues generally, and blasting in particular. The plaintiff requested an extension from the Planning Board which was denied, as was approval of the new plan based on the unfavorable report from the Board of Health. The plaintiff does not appeal the lawfulness of the Planning Board's action in these proceedings. Most of the concerns expressed by the Board of Health above are addressed by the DEP's final order of conditions.
12. After two pre-hearing conferences between the DEP, the commission, the developers, Mrs. Warren of the neighborhood group, and engineers from SEA and Carter and Towers, all parties came to agreement which was reflected in a revised plan of February 19, 1988 (Exhibit No. 24) and the DEP's Final Order of Conditions dated May 5, 1988 (Exhibit No. 23). Like the conservation commission Order of Conditions, the DEP required an impervious liner with more precise specifications and an overflow drainage pipe connected to the Forest Avenue drainage system.
13. As a result of the Final Order of Conditions, the following changes were made to the plan: the base flood elevation of the retention pond was raised from approximately 76 or 77 feet to 81.5 feet enlarging the amount of storage area; the elevation of the roadway was also raised approximately two feet although this was later revised down to the constructively approved elevation; [Note 9] a so-called "bleeder valve", a 12 inch pipe connecting the retention pond with the Town's storm drainage system, will drain storm overflow into the town system; [Note 10] installation of an impervious liner necessitating the installation of a bleeder valve; addition of swale roughly tracking contour "90" at the base of the subdivision in an attempt to route runoff away from abutters along Forest Avenue and into the retention pond. The following remain unchanged: lot configuration, roadway location and lay out, amount of existing isolated land subject to flooding proposed to be filled, land area to be used for the compensatory storage area. No appeal was taken from this order. The Board of Health did, however, discuss appealing but decided to save its challenge to the building permit stage, because it concluded the DEP's jurisdiction was over the Conservation Commission, not the Board of Health.
14. On December 16, 1988 the plaintiff applied to the Board of Public Works for a street opening permit so that the connections to municipal water, sewer and drainage systems could be made for Lot 4. [Note 11] The clerk to the Board of Public Works had, as is her normal practice, [Note 12] issued a street opening permit which was later revoked without notice by the superintendent because of drainage issues. The following month the plaintiff was informed by letter from the superintendent of public works that the application had been referred to the Board of Health for comment and approval [Note 13] before the DPW would decide whether to issue the permit, notwithstanding that the superintendent "found the road, water and sanitary sewer design to be in accordance with the Town's technical requirements." (Exhibit No. 13). The Board of Health recommended denial based on findings which are in part quoted above at paragraph 9 (see Exhibit No. 5). A hearing was scheduled for May 18 and June 1, and was eventually held in August, 1989 at which the Board of Public Works denied the street opening permit, the principal reason being that granting the permit would overload an already stressed system. [Note 14] On October 31, 1989 the Board of Public Works notified the building inspector that the street opening permit was denied (Exhibit No. 6).
15. On October 5, 1989 the plaintiff trust applied for a building permit for the construction of a single family dwelling on Lot 4 (Exhibit No. 4). The building inspector then contacted the health officer and the superintendent of public works. In response the health officer sent a letter to Drucas and Simms with a copy to Gallo (Exhibit No. 5) to the effect that using town drainage would exacerbate the already overloaded system; the letter was a factor in Gallo's decision to deny the building permit. Likewise, the superintendent of public works sent a letter to Gallo (Exhibit No. 6) advising him that "the Board of Public Works has denied all road opening permits and Utility Connections for the . . . Subdivision, of which [lot 4] is a part." The letter advised the building inspector that the Planning Board must first approve "[t]his lot along with the rest of Sacurd Way" before the DPW would consider such an application, even though the Public Works Department knew that the Planning Board had constructively approved the subdivision. Moreover, Lot 4 was on a previously approved street which had become, at least in part, a public way. This letter was also taken into consideration when the building inspector made his decision as he would not issue the building permit without a sewer and water hook-up permit which would not be issued without a street opening permit, which in turn would not be issued without Planning Board approval of the subdivision plans, a classic circular reasoning and all in error.
16. The Zoning Board of Appeal ("ZBA") in a January 29, 1990 decision upheld the building inspector's decision (see Exhibit No. 3) on the basis that a 1934 local by-law requires water and sewer hook-up before a building permit can issue. Otherwise, there were no other zoning problems.
17. After 1984 articles were presented at Town Meeting for funds to be appropriated for the drainage system. Some repair work has been done, but Mr. Murphy did not know if the capacity had been increased. He said there are currently no plans to improve the system or to appropriate funds for any expansion. The superintendent of public works estimated that any expansion work would take three to five years to complete.
There are only two questions to be addressed to determine whether the plaintiff is entitled to the relief he seeks. The first concerns the power of the Swampscott Board of Public Works to deny the plaintiff a street opening permit based not on the inadequacies or unsafe nature of the plaintiff's proposals but the perceived effect on the town's surface drainage system. A facet of this issue is the ancillary inquiry as to whether once the permit had issued, it could be revoked without notice. The second two-part question before the Court is whether the building inspector was entitled to deny the building permit based on the intransigence of the Department of Public Works and the Health Department, and whether the Zoning Board of Appeals was correct in upholding his decision based on a 1934 by-law. I discuss the overreaching of the Board of Health only in an advisory sense at the conclusion of this decision in which I also face the question as to whether there has been a taking for which the plaintiff is entitled at least to nominal damages.
This Court has twice upheld the creation of the subdivision. It has since been changed in respects mandated by DEP in a settlement to which all interested parties agreed or at least did not appeal. Neither the Board of Health nor the Department of Public Works participated although they were aware of the proceedings. The DEP decision accordingly preempts the field on environmental issues and cannot now be attacked by municipal authorities. The question of on-site or off-site drainage was an integral part of that decision and is now binding on all interested parties. Accordingly the subdivision plan did not have to be submitted again to the Board of Health or the Planning Board. Windsor v. Planning Board of Wayland, 26 Mass. App. Ct. 650 (1988). Cf. Doeblin v. Tinkham Development Corp., 7 Mass. App. Ct. 720 , 721-722 (1979).
General Laws c. 83, §8 provides in part as follows:
No person shall dig up or make an excavation in a public way for the laying . . . of a drain or sewer without obtaining a written permit from the board or officer having charge of the maintenance and repair of sewers in the town in which such a way is situated. Notwithstanding any contrary provision of any local ordinance or by-law, [Note 15] no such permit shall, except in case of an emergency, be approved or issued by said board or officer until copies of the notices to public utility companies required by section forty of chapter eightytwo have been filed. . . .
Unless the Department of Public Works questions the competency of the parties seeking to open a road or the safety of the proposal to the traveling public, they have no authority to deny the application for a street opening permit. Unless there is a moratorium on sewer or water connections adopted by the town meeting, as to the validity of which I express no opinion, every property owner is entitled to enter the public water, sewer and surface disposal systems. See Loring v. Commission of Public Works, 264 Mass. 460 , 464 (1928); Rounds v. Board of Water & Sewer Commissioners of Wilmington, 347 Mass. 40 (1964). In the initial consideration of the subdivision plan, it may have been appropriate for the Planning Board to consider the effect on other properties if its rules and regulations so provided, but they did not. Cf. Daley Construction Co. v. Planning Board of Randolph, 340 Mass. 149 , 153 (1959); Vitale v. Planning Board of Newburyport, 10 Mass. App. Ct. 483 , 486 (1980). To be bound by any such requirement it must be expressed so that developers are apprised of the standards they must meet. Castle Estates, Inc. v. Parking and Planning Board of Medfield, 344 Mass. 329 (1962).
In addition, Lot 4 fronts on a street without this subdivision and which is shown on other Land Court plans; it either is now a public way or a way heretofore approved by the Planning Board as provided in G.L. c. 41, §81L, so the position of the Department of Public Works is even less tenable.
I therefore find and rule that the Department of Public Works was clearly wrong in denying the street opening permit to the plaintiff. It follows that the building inspector's decision based thereon and that of the ZBA fall as well. The decision of the ZBA is annulled and the matter is remanded to it to order the building inspector to issue the building permit so long as the plans comply with the State Building Code. With the approach I have taken I do not reach the question as to the viability of the 1934 by-law in light of the State Building Code.
The issue remains as to whether the Board of Health arbitrarily can bar entry into town systems without the imposition of a moratorium which may well require the approval not only of the town meeting but DEP. It is not necessary to reach that question since on all the evidence I find and rule that the surface drainage from the premises will be de minimis and insufficient to bar the current construction. The Board of Health was also concerned about blasting, but its control does not appear to be within its jurisdiction.
The plaintiff seeks damages for what it alleges to be a temporary taking as in First English Evangelical Lutheran Church v. County of Los Angeles, 107 S. Ct. 1278 (1987). I find and rule that the denial of the street opening permit was unlawful and that it barred the plaintiff from any use of its land from the time of the denial to the issuance o the permit pursuant to this decision. No evidence of damages was introduced, however, and I therefore award only nominal damages of $100. Cf. Rosenfeld v. Board of Health of Chilmark, 27 Mass. App. Ct. 621 , 624 (1989).
[Note 1] Mr. Drucas resigned as Trustee shortly before being sworn in on April 26, 1990 as a member of the Board of Selectmen; he retained a beneficial interest in the trust.
[Note 2] See note 1, supra.
[Note 3] Later renamed Supreme Court Way.
[Note 4] But note Exhibit No. 8, paragraph 2 where the Board of Health expresses concern about rights of entry to effect future repairs to the pipe.
[Note 5] See Land Court Miscellaneous Case No. 127814.
[Note 6] It is unclear whether this refers to a proposed design or to the existing drain pipe.
[Note 7] This design differs from that ordered by DEP with respect to installation of an impervious liner beneath only part of the retention pond, whereas the DEP Order does not include this limitation.
[Note 8] There is no evidence as to where these are located.
[Note 9] The plaintiff plans to encase the pipe in cement. According to Drucas' testimony, the DEP does not consider this to be a substantial change requiring refiling of the Notice of Intent, and the department only responds in writing where it views further review required.
[Note 10] The mouth of the valve would be at elevation 80.5; later revised to 81.5 feet.
[Note 11] The application is not in evidence nor is the definition of a street opening permit. Exhibit No. 6, a letter from the superintendent of public works to the building inspector identifies the permit application as "RE: Lot # 4/32, Brooks Terrace, Sacurd Way, Subdivision".
[Note 12] Street opening permits are routinely granted, roughly 90% of them being issued by the Board's clerk to gas, phone, cable companies, etc., to effect repairs, and the Board generally is involved only to establish policy, or if the permit is hotly contested; the Board has been involved in a subdivision permit application on one previous occasion.
[Note 13] Normally the Board of Health is not consulted in such matters.
[Note 14] Mr. Kelly, chairman of the Board of Public Works, testified "[b]asically, that's the main reason, because our surface drainage system cannot take it and we have an agreement to pay linkage fees to transport the surface drainage."
[Note 15] None of which have been provided.