RICHARD M. WHEELER and JANE M. WHEELER vs. RICHARD J. BELLOTTI, DONALD C. MORRIS and MARK W. DAVIS, as they are the PLANNING BOARD OF THE TOWN OF SOUTHBOROUGH.

This matter was commenced on April 17, 1990, by complaint filed pursuant to G.L. c. 41, §81BB, wherein Plaintiffs appeal a certificate of approval ("the Certificate") from the Planning Board of the Town of Southborough ("the Board"), conditionally approving a definitive subdivision plan ("the Plan") of land located on Parkerville Road in Southborough ("Locus"). Plaintiffs seek a modification of the Certificate, pursuant to G.L. c. 41, §81U, and/or a declaration that condition number 7 of said Certificate is invalid.

On September 13, 1990, Plaintiffs filed a Motion for Summary Judgment which is still outstanding. Both parties have filed trial memoranda and briefs.

This case was tried on May 20, 1991. The trial proceedings were transcribed by a court-appointed reporter. Three witnesses testified and eleven exhibits were introduced into evidence. 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. Plaintiffs are the owners of Locus which contains approximately 9.5 acres of land and a single-family ranch style home.

2. On November 30, 1988, Plaintiffs submitted the Definitive Subdivision Plan entitled "Alexandria Hill/Subdivision of Land in Southborough" dated November 18, 1988 (Sheet 3 of Exhibit No. 1), showing Locus as a six-lot subdivision, to the Board for approval.

3. By Certificate of Approval dated March 7, 1989, the Board approved the Definitive Plan subject to a number of conditions. Condition 7 of the Certificate ("Condition Number 7") made approval of the Plan, "[s]ubject to the outfall of the drainage system tying into the drainage system in Parkerville Road as shown on approved subdivision plans for the 'Parkerville Heights' subdivision dated May 10, 1988 and revised to July 6, 1988 prior to any lots being released."

4. From the time of the Certificate until the present, neither the drainage system in Parkerville Road nor the Parkerville Heights subdivision physically exists. Nor does their appear to be any foreseeable future prospect of construction of the subdivision.

5. On or about November 1, 1989, Plaintiffs submitted a request for modification of the Certificate, pursuant to G.L. c. 41, §81W, seeking modification of Condition Number 7 in either of two alternatives. Plaintiffs sought either to be allowed to post a bond to ensure construction of the required drainage in Parkerville road or to create plans calling for drainage to be installed in Parkerville Road to a point wherein it would tie into the existing town drainage in the street. The second alternative called for a detention basin on site to gather and collect the water runoff which would be filtered out of the detention basin through a 12 inch pipe into an existing town drain southerly by Parkerville Road approximately 550 feet to an existing 12 inch diameter town drain. The drainage calculations submitted with those plans showed that the peak flow runoff from the site would be reduced in comparison to preconstruction runoff, but that the volume would be increased.

6. By letter dated April 9, 1990, the Board denied Plaintiffs' requested modifications. The Board did not file notice of such denial with the Town Clerk.

Plaintiffs have raised through motion for summary judgment the question as to the consequences of the Board's failure to file with the Town Clerk a notice of its decision denying Plaintiffs' request to modify the Plan within the period provided by G.L. §81U. As noted above, Plaintiffs submitted their request for modification on November 1, 1989. The Board denied the request by letter dated April 7, 1990, which letter was not filed with the Town Clerk. The governing statute in such situation appears to be that portion of G.L. c. 41, §81W which reads:

All of the provisions of the subdivision control law relating to the submissions and approval of a plan of a subdivision shall, so far as apt, be applicable to the approval of the modification, amendment or recision of such approval and to a plan which has been approved under this section.

The Board argues that inasmuch as it did not change its position (i.e., it denied the requested modification), it was not necessary to file its decision with the Town Clerk, although it did hold a hearing on the request and gave notice of its decision to Plaintiffs. Plaintiffs opt for what they consider a more literal reading of the statute. Both parties cite Windsor v. Planning Board of Wayland, 26 Mass. App. Ct. 650 (1988) as support for their positions.

Clearly §81U requires the hearing mandated by §81T before conditional approval may be given a plan by the Board and provides for constructive approval in the event "final action . . . or filing with the . . . town clerk" is not completed within ninety days after the submission.

Pertinent language in Windsor states at p. 655:

The law aims to attain certainty in the timing of appeals. Section 81BB starts the running of the appeal period from either the filing of a certificate of final action within the statutory . . . period or from the deadline for such filing if filing has not occurred. Notice of the original submission by the owner must be filed with the clerk. By recourse to the record in the clerk's office, interested parties may learn when they must initiate appeal to the court. Insistence on the values of the regularity and reliability of the record appears often in the cases. (citations omitted)

Reading sections 81T, 81U and 81W together with Windsor would indicate that when a filing for modification is made by the petitioner, the certificate of final action should be filed with the town clerk whether or not the modification is allowed or denied. While it is true, as Defendants argue, that as in this instance where petitioners are notified of the denial of their petition to modify, rarely if ever would a third party who might rely on the clerk's records, be aggrieved by a failure to file with the clerk. To adopt a rule, however, whereby allowances are filed and denials are not, could certainly lead to confusion and uncertainty whereas a rule requiring filing in either instance would impose no great burden for a Board.

Accordingly, I find that the petition for modification was constructively granted by the Board's failure to file a certificate of final action with the Town Clerk.

This matter does not, however, end here. As pointed out by the court in Windsor, the Board may remedy this situation by invoking certain provisions of §81W.

Moreover, even if the plan as modified stands approved, such approval does not give Plaintiffs any right to flood downstream properties with its drainage system, as is discussed below.

7. There are no provisions of the Southborough Rules and Regulations (hereinafter referred to by section number only) which relate to drainage connections with non-existent subdivisions. Section 244-16(A) provides that "[t]he applicant shall furnish evidence that adequate provision has been made for the proper drainage of surface and underground waters from [lots on proposed subdivisions]." Section 244-16(B) provides:

(1) The definitive plan shall show surface and subsurface storm drains, culverts, swales and related drainage structures sufficient to adequately drain snowmelt, other precipitation and flooding runoff from lots and streets. Drainage capacity shall be designed for a fifty-year flood event, except that culverts for watercourses crossing streets shall be designed for a one-hundred-year [sic] flood event, and the Planning Board may require design for one-hundred-year [sic] frequency where the high damage potential or other circumstances warrant it. The rational formula or the SCS Modified Soil Complex Method shall be used, and the value of the coefficient of imperviousness shall vary according to terrain, but shall not be less than thirty-hundredths (0.30). Hydraulic design computations shall be submitted to the Board at its request. No net increase in runoff from the site is allowed. (emphasis added)

(2) The main street drain and the manholes centered thereon shall be located five (5) feet from the center line of pavement; drain manholes and catch basins shall have inside diameter of four (4) feet, and the catch basins shall have a two-and-one-half-foot [sic] deep sump below the outlet pipe invert and shall be centered one (1) foot into the street from the curb or gutter line. The minimum pipe diameter shall be twelve (12) inches and the grade shall be such as to provide a minimum velocity of two (2) feet per second when flowing full and without surcharge. The distance between catch basins shall be no greater than four hundred (400) feet in order to provide proper drainage. Where water needs to be channeled or piped to or across land of others in a manner resulting in a change in intensity subdivision approval will be predicated on the applicant first obtaining the necessary easement rights which later shall be recorded.

The general purpose of the subdivision control law is stated in G.L. c. 41, §81M, which provides, in part:

It is the intent of the subdivision control law that any subdivision plan filed with the planning board shall receive the approval of such board if said plan conforms to the recommendations of the board of health and to the reasonable rules and regulations of the planning board pertaining to subdivisions of land.

In interpreting G.L. c. 41 and specifically §81Q, [Note 1] the court has explained that:

The subdivision control law attaches such importance to planning board regulations as to indicate to us that they should be comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required of them and what standards and procedures will be applied to them. Without such regulations, the purposes of the law may easily be frustrated.

Castle Estates Inc. v. Planning Board of Medfield, 344 Mass. 329 , 334 (1962); North Landers Corp. v. Planning Board of Falmouth, 382 Mass. 432 , 439 (1981). Based on that rationale, the Court in Castle Estates held that absent explicit provisions in a city's or town's rules and regulations for connecting a subdivision's water systems with town water, a local board may not impose conditions of that type upon its approval of subdivisions. Specifically, the rules and regulations must define what ways and utilities are or may be required in connection with subdivision plans, what standards are to be applied by the board in exercising any powers given to it by the regulations to withhold approval and to impose conditions, and must define those powers. Id. at 334.

In the present case, I find that there is nothing in the Rules and Regulations which would give a developer notice that he might be required to tie his subdivision drainage system in with that of an abutting subdivision much less one that has not been constructed. Accordingly, I find the Board's imposition of Condition Number 7 improper and invalid in that it is conditioned on an event in the control of a neighboring subdivision which may or may not occur.

However, one obvious purpose of Condition Number 7 is to control the runoff from the drainage system of Locus. While I find the aforesaid condition to be invalid, I find that the Board has not waived its right to require compliance with other Rules and Regulations in this area.

I thus find that while Plaintiffs need not tie into the non-existent drainage system and constructive approval of the modification notwithstanding, they must still comply with the intent of the applicable portions of §244-14(B) (l) as hereafter interpreted, inasmuch as they have no rights to flood neighbors' land. Both parties dispute the interpretation of the phrase "net increase in runoff." Defendants argue that an increase in either rate or total volume of runoff violates the disputed provision, while Plaintiffs contend that if either the rate or total volume is not increased then the disputed provision is satisfied. Both of those arguments and the rule itself omit both a time and/or effect factor which I find necessary to validate the rule. To have a proper and valid purpose, I find that the rule only prohibits net increases in runoff, which will have an identifiable and more than de minimis adverse effect on down stream properties. Without such requirement the rule serves no public purpose.

As I have found above, Plaintiffs' petition for modification has been constructively granted by the Board's inaction, however, in view of my findings on the drainage rules and in the hopes of averting further administrative expenditure by the parties, I remand this matter to the Board for further hearings, if necessary, on the impact if any of Plaintiffs' proposed drainage system, which may well render any further action under §81W moot.

Plaintiffs may if they wish to present further evidence and the Board may take further action in accordance herewith. This order is an attempt to resolve the differences between the parties and is not intended to interfere with Defendants' rights under G.L. c. 41, §81W should it wish to proceed thereunder.

Judgment accordingly.