MISC 141317

January 14, 1992

Essex, ss.



By complaint filed January 31, 1990, pursuant to G.L. c. 41, §81BB, and amended on May 7, 1990, Plaintiffs appeal the January 11, 1990, approval by the Gloucester Planning Board ("the Board") of a modified definitive plan ("the Modified Plan") for a subdivision known as Beechbrook Drive Apartments ("the Subdivision" or "Locus").

On March 2, 1990, this Court ordered Plaintiffs to post a $5,000 surety bond, pursuant to G.L. c. 41, §81BB, which bond was posted on March 28, 1990.

This case was tried on June 10, 1991, at which time no stenographer was present hence the proceedings were not recorded. No witnesses testified and thirty-one exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, pertinent documents, memoranda and arguments of counsel, I make the following findings:

1. Plaintiff, Paul G. Bergmann ("Bergmann") resides at 396 Essex Avenue in Gloucester. 396 Essex Avenue is directly across Essex Avenue from the entrance to the Subdivision. Bergmann also has rights to a lot in Beechbrook Cemetery ("the Cemetery"), which abuts Locus to the south. Bergmann is president of Plaintiff, Friends of Beechbrook, Inc.

2. Plaintiff, David D. Winchester ("Winchester") resides at 405 Essex Avenue in Gloucester, which property abuts Locus.

3. Plaintiff Constance M. Condon resides at 10 Bond Street in Gloucester. Condon, has the rights to a burial lot at Beechbrook Cemetery, which lot is on the border of Beechbrook Cemetery abutting the way connecting Locus with Essex Avenue ("the Way"). Beechbrook Cemetery abuts Locus and the Way to the southeast as shown on sheet one of the Modified Plan.

4. Plaintiff, Friends of Beechbrook, Inc. ("Friends of Beechbrook") is a non-profit Massachusetts corporation, composed of individuals who have friends and/or relatives interred at Beechbrook Cemetery.

5. Defendant, Ralph G. Hobbs, Jr. ("Hobbs") is the owner of a Locus which contains 7.2586 acres, and is also known as 410R Essex Avenue, as shown on sheet 2 of a subdivision plan entitled "Modified Definitive Subdivision Plan of Beechbrook Drive Apartments in Gloucester, Massachusetts" dated September 20, 1989 ("the Modified Plan").

6. By deed dated September 7, 1988, and recorded at Book 9759, Page 331 at the Essex South Registry of Deeds, Stephen L. Monell, the southerly abutter to Locus granted Hobbs an non-exclusive easement over the Way, such easement to be used as a roadway and utility access to Locus. The Way is shown as Beechbrook Drive on the Modified Plan and is approximately 50 feet in width by 650 feet in length.

7. The seven member Planning Board held six public hearings relating to the Subdivision. On November 7, 1988, all members of the Board being present, a public hearing was held at which the Board unanimously voted to refer Hobbs's preliminary plan ("the Preliminary Plan") to the Design Review Committee. On November 21, 1988, all members of the Board being present, a public hearing was held at which the Board unanimously voted to approve the Preliminary Plan subject to certain conditions. On February 13, 1989, all members of the Board being present except Defendant, Christopher Vrachos, a public hearing was held at which five people spoke in opposition to the definitive subdivision plan of Locus ("the Definitive Plan"). On April 10, 1989, the Board held a public hearing at which they unanimously approved the Definitive Plan.

8. On September 20, 1989, Hobbs filed the Modified Plan and later revised said plan on November 3, 1989, December 26, 1989, and January 5, 1990. On December 4, 1989, the Board held a public hearing ("the December 4th Meeting") on the Modified Plan. At that time neither Defendant, Alexander Sands ("Sands") nor Defendant, Milton Sears were present. Six people spoke against the Modified Plan. Sands was familiar with the Modified Plan and the issues concerning the application for the Subdivision. On January 8, 1990, at which time six members were present, the Board approved the Modified Plan by a four to one vote with Sands voting in favor of the Modified Plan and Sears abstaining. The vote is evidenced by Certificate of Action ("the Certificate of Action") filed with the Town Clerk on January 11, 1990.

9. By the Certificate of Action, the Board approved the Modified Plan with three waivers of the Gloucester Rules and Regulations ("the Rules and Regulations") First, the Board waived compliance with section 3.2.4(u) of the Rules and Regulations requiring the "location and species of all proposed street trees and location of all existing trees with trunks over ten inches in diameter, . . . " Second, the Board waived compliance with section 4.3.4(a) of the Rules and Regulations which requires that dead-end streets, in proposed subdivisions, not exceed 600 feet in length. The Way, a proposed dead-end street, would be 1,649 feet in length. Third the Board waived compliance with section 4.7.1(a) of the Rules and Regulations which requires that sidewalks be installed on both sides of collector and minor streets. Sidewalks being proposed only on the western side of the Way. All of such waivers appear to be within the discretion of the Board.

Aggrieved Parties

G.L. c. 41, §81BB provides, in pertinent part, "Any person . . . aggrieved . . . by a decision of a planning board concerning a plan of a subdivision of land, . . . may appeal . . . the land court . . . ."

If a Plaintiff has at least some pecuniary interest which is immediately or remotely affected by the determination appealed from, he has standing under G.L. c. 41, §81BB. Carey v. Planning Board of Revere, 335 Mass. 740 , 743-4 (1957). In the present case, certainly Winchester who owns property abutting Locus and Bergmann who owns property directly across the street from the entrance to the Subdivision are aggrieved parties. (See Carey at 743) Inasmuch as I have found that Plaintiffs, Condon and Winchester, are aggrieved parties, it is unnecessary to decide the issue of whether the other named Plaintiffs are also aggrieved as only one Plaintiff is necessary to bring an action under G.L. c. 41, §81BB.

Board Member not present

Section 3.6 of the Rules and Regulations provides, in pertinent part, "Approval [of a definitive plan], if granted, shall be endorsed . . . by the signatures of a majority of the Planning Board . . . ." Clearly, this is a requirement of approval by at least four members, not a majority of those present. In the present case, four of the seven members approved the Subdivision, however, one such member, Sands, did not attend the public meeting prior to his endorsement.

When a municipal administrative board is acting in a judicial or quasi judicial capacity all members who are to join in the decision must have attended all the hearings. Mullin v. Planning Board of Brewster, 17 Mass. App. Ct. 139 (1983); Perkins v. School Committee of Quincy, 315 Mass. 47 (1943); (See Sesnovich v. Board of Appeal of Boston 313 Mass. 393 (1943) wherein the Court decded that the Board did not have jurisdiction as the requisite number of members did not attend the public hearing; See also McHugh v. Board of Zoning Adjustment of Boston, 336 Mass. 682 (1958). In the present case, as mentioned above, Sands did not attend the December 4th meeting at which the Modified Plan was discussed.

Defendants argue that Sands was present at other meetings of the Board relating to the Subdivision and was familiar with issues surrounding the Modified Plan. Sands, however, was not present at the public hearing relating to the Modified Plan and could not properly vote thereon. Testimony at that meeting was limited to complaints relating to the modifications of the Definitive Plan and Sands was not present to hear such testimony.

Accordingly, and only because of the absence of one voting member at a hearing, I find the Board's approval of the Modified Plan exceeded its authority and must be and is hereby declared invalid.

Both Plaintiff and Defendants submitted Post-Trial Memoranda and Proposed Rulings of Law. I have not attempted to rule on each of said requests as I have made my own rulings on the law which I believe is applicable.

Judgment accordingly.