MISC 144092

November 15, 1991

Essex, ss.



The plaintiffs, Albert DiZoglio and Lucille L. DiZoglio, appealed pursuant to the provisions of G.L. c. 41, §81BB from the disapproval by the defendant Lawrence Planning Board (the "Board") of their definitive subdivision plan showing a three lot subdivision and entitled "Cornish Road Methuen & Lawrence, Mass. Owner & Applicant: Alfred J. & Lucille L. DiZoglio", dated December 19, 1989 by Andover Consultants Inc. (the "Plan") (Exhibit No. 4). The plaintiffs moved for summary judgment, but the court denied their motion and remanded the cause to the Board for a statement of its reasons. The Board did not enter a formal certificate of final action, so far as appears, in which the reasons are set forth. However, the minutes for its meeting on December 5, 1990 contain the following, prepared by a member of the Board and adopted by his colleagues:

In response to Judge Sullivan's order for the Board to state detailed reasons for its rejection of the Cornish Road Subdivision Plan, the Board states the following findings of nonconformity with the City of Lawrence Subdivision Regulations:

NON-COMPLIANCE WITH SECTION 4.8B - The Board was not provided with details on "what is to be built". Such data is necessary in this case due to the adjacent high­density housing permitted by an earlier variance, the low-density residential character and concerns of the neighborhood abutting the property's other sides, and the drainage and topography problems on the property.

NON-COMPLIANCE WITH SECTION 5.2D - The Plan possibly was in error on two fundamental and unresolved points: 1. Cornish Road was described as (Public) when testimony to the contrary was presented; 2. Boundaries of the "restricted area" as shown on the plan were hotly disputed by abutters who had a different understanding of the unbuildable area designated by a 1975 variance. Efforts by the DiZoglios in 1986 to remove the restriction were unsuccessful, and the 1975 variance could be interpreted as a Zoning Board of Appeals mandate to allow no further building -- including a paved roadway or cul-de-sac -- on this property in exchange for ZBA permission to allow 28 apartments within two buildings in an R2 area. The 1975 variance statement of facts also noted that the petitioners "intend to combine these lots in one large parcel of land"; instead, the petitioners subdivided the lot in 1983 to construct another building on the property and now seek to further subdivide the remaining land.

NONCOMPLIANCE WITH SECTION 6.2A - "Attractiveness of the layout" and "maximum livability and amenity" would be seriously in question under the Plan. The proposed lots would be in the shadow of a steep incline topped by large multi-unit structures and parking areas already out of keeping with the single-family character and zoning of the area. The Planning Board visited the site and devoted two meetings and several hours to the plan. We believe that we are acting in accordance with past ZBA rulings against increasing the nonconforming use of the property, and we are confident that we have acted within the law and in the best interests of our city.

The plaintiffs therefore moved for a pre-trial conference.

A trial was held at the Land Court on August 27, 1991 at which the proceedings were electronically recorded. In addition to a stipulation of facts and exhibits marked Exhibit No. 1 entered into by the parties Lucille L. DiZoglio, one of the plaintiffs, William S. MacLeod, Dennis A. DiZoglio, the Community Planning Development Director in Methuen and son of the plaintiffs, were called as witnesses for the plaintiffs. The Board called two of its members, Robert Frishman and Salvatore Torname and an abutter, Charles A. McCarthy. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows, based in part on the stipulation and in part on my own findings:

1. The plaintiffs propose to develop land lying partially in Methuen, Essex County, Massachusetts and partially in Lawrence, Essex County, Massachusetts. Presently, Cornish Road exists in the Town of Methuen and extends into the City of Lawrence. The DiZoglio's proposal is to extend Cornish Road further into the Lawrence property.

2. In December 1989 the plaintiffs applied to the City of Lawrence Planning Board for approval of a Definitive Subdivision Plan to extend Cornish Road onto the property lying in Lawrence, Massachusetts.

3. The Board voted to deny the plaintiffs' Definitive Plan at its meeting on March 7, 1990.

4. There were two meetings held by the Planning Board concerning the plaintiffs' Definitive Subdivision Plan. The meetings were held on February 8, 1990 and March 7, 1990. There was a subsequent public meeting on December 5, 1990 in which the Board, pursuant to remand from the Land Court, delineated its reasons for denying the plaintiffs' Petition for Subdivision.

5. Cornish Road and Cornish Street Extension are private ways open to public use.

6. The Department of Engineering for the City of Lawrence reviewed the plaintiffs' plans prior to submission to the Board. The public record does not reflect concerns raised by the Department of Engineering relative to the roadway layout.

7. On January 6, 1975 the Zoning Board of Apeals for the City of Lawrence granted to the plaintiffs a variance from the regulations of the revised Zoning Ordinance for the City of Lawrence. Said variance allowed the plaintiffs to convert an existing hospital into twenty-two (22) apartment units, and as a condition thereof, the Zoning Board restricted the use of an area of approximately twenty-thousand (20,000) square feet "so that no building or structure of any kind may be constructed on that area and said area may not be used for ingress to or egress from the remaining part of the locus". The restricted area covers a portion of Lot 3 in the plaintiffs' proposed subdivision.

8. No appeal was taken from the decision of the Lawrence Zoning Board of Appeals (the "ZBA") imposing restrictions on the locus so they remain in force. They are, however, ambiguous since the area behind the property as to which the variance was granted has an area of nearly 40,000 square feet, and the provisions as to access are unclear. I interpret the language to mean that the Cornish Road property cannot be used to access the apartments which front on Berkeley Street.

9. Since only the northwesterly portion of locus also is in Methuen, this must be the area restricted by the ZBA. It is a portion of Lot 3 on the Plan as well as of Cornish Road, the subdivision street.

10. The Board found that the applicants had not provided details of what was to be built in accordance with Section 4.8B. However, the Board knew that either duplexes or single family residences were to be built. Under the circumstances nothing more was required, especially since G.L. c. 41, §81Q prohibits regulations relating to the use of the lots.

11. The stipulation of the parties has resolved the question as to nature of Cornish Road. The effect of the variance is a legal question on which I have ruled herein.

12. The second sentence of Section 6.2A of the Rules and Regulations states "Consideration will also be given to the attractiveness of the layout so the maximum livability and amenity can be obtained". I assume this is a valid regulation. The Board's finding did not relate to the layout, however, but was directed to the use of the property which is specifically excluded from its mandate although, of course, it obviously may inquire as to the adequacy of the proposed improvements to serve the development. The Board had sufficient information to make this determination.

13. The abutter objected to the subdivision of the locus and proposed it be kept as a bird refuge. This, however, would require a taking by eminent domain and the expenditure of public funds.

14. There is a ledge on the rear of the locus effectively separating locus from the properties fronting on Berkeley Street.

The Planning Board in disapproving the Definitive Plan appears to have reacted to the development concerns of the neighborhood directed against this three lot subdivision. None of the reasons for its disapproval of the plan focused on the usual concerns of a planning board as to the design of the way and the provision for utilities. I find and rule that the plaintiffs' Definitive Plan complies with the Subdivision Rules and Regulations of the Board, and the Board's decision exceeded its authority. Accordingly the Plan is entitled to approval and must be endorsed by the Board. However, prior thereto the Board should take the steps to secure performance of the obligations of the plaintiffs in accordance with the provisions of G.L. c. 41, §81U.

Judgment accordingly.