MISC 11-444552

March 2, 2012

Sands, J.


Plaintiff, Tirone Development Corp., filed its unverified complaint on January 14, 2011, pursuant to the provisions of G. L. c. 41 § 81BB, appealing a decision of Defendant, Town of Agawam Planning Board, which disapproved a definitive plan for construction of a four lot residential subdivision off Federal Street in Agawam, MA. Defendant filed its Answer on February 16, 2011. A case management conference was held on February 18, 2011. On March 28, 2011, Mack A. Lynch and the Agawam Funeral Home, Inc., abutters to the subdivision (the “Abutters”), filed a Motion to Intervene, which was heard on April 7, 2011, and denied. [Note 1]

Plaintiff filed its Motion for Summary Judgment on October 3, 2011, together with supporting memorandum, Statement of Facts, and Appendix–containing the Affidavit of Joseph Pacella, Esq. (the “Pacella Affidavit”), minutes from Defendant’s seven public hearings regarding Plaintiff’s definitive plan, and Plaintiff’s correspondence with the Agawam Engineering Department. On October 27, 2011, Defendant filed its Opposition to Plaintiff’s Motion for Summary Judgment, together with supporting memorandum and Motion to Strike portions of the Pacella Affidavit and many items in the Appendix. A hearing was held on all motions on November 7, 2011, and the matter was taken under advisement. [Note 2]

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). Judicial review in appeals from planning board decisions under G. L. c. 41 § 81BB requires the reviewing judge to “conduct a hearing de novo, find the relevant facts, and, confin[e] its review to the reasons stated by the planning board for its disapproval of the subdivision plan.” Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977), citing, Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306 , 307 (1976). For summary judgment purposes, “the developer has the burden of proving that the planning board has exceeded its authority in disapproving the plan.” Fairbairn, 5 Mass. App. Ct. at 173.

I find the following material facts are not in dispute:

1. In January 2009, Plaintiff submitted to Defendant a preliminary plan for a four lot residential subdivision called “Mariella Place.” The access to the subdivision was to be a cul-de-sac to be constructed off of Federal Street. Defendant approved the preliminary plan on July 16, 2009.

2. On July 9, 2010, Plaintiff submitted a Definitive Subdivision Plan (the “Plan”), to Defendant. [Note 3] Defendant held seven public hearings on the Plan commencing August 5, 2010, and ending on December 16, 2010.

3. During the public hearings, Plaintiff made numerous modifications to the Plan as requested by the Town Engineering Department, Defendant, and the Abutters.

4. On December 16, 2011, Defendant voted 2-1 to disapprove the Plan. A decision (the “Decision”) was filed with the Town Clerk Office on December 27, 2011. The Decision stated eight reasons for denial:

i) impact of seasonal high water table on future stability of the road surface

ii) construction concerns (air pollution caused by dust, exhaust, noise, structural damage)

iii) density concerns that conformance with drainage plans will be compromised

iv) drainage concerns post-construction

v) density concerns that substandard existing sewer may get worse

vi) speculation about continuous enforcement problems for Town of Agawam relative to landscaped strips

vii) inadequacy of Homeowners Association Agreement

viii) subdivision will degrade the neighborhood, and “In addition, the Board is of the opinion that the subdivision does not satisfy the Agawam Subdivision Rules and Regulations.”


Defendant has filed a Motion to Strike portions of the Pacella Affidavit and related exhibits (minutes of Defendant’s hearings related to the Plan and correspondence between Plaintiff and the Town Engineering Department), based on hearsay concerns. I shall strike Exhibits 4-9 attached to the Pacella Affidavit as such minutes constitute hearsay. I shall not strike Exhibit 10 (the December 16, 2010 minutes) to the extent that such minutes incorporate the votes taken by the Defendant relative to the Plan, but I shall exclude all evidence stated during the public hearing portion of such minutes. I shall not strike Exhibit 16 (correspondence of the Town Engineering Department), but shall only rely on the fact that such letters were sent between the parties and the fact the Engineering Department was involved in the approval and amendment process.

Plaintiff argues that Defendant exceeded its authority and acted in an arbitrary and capricious manner in disapproving the Plan because the Decision was based on speculative fears about future conditions which have not occurred. Plaintiff also argues that the Plan meets all the requirements of the Agawam Subdivision Rules and Regulations (the “Rules and Regulations”). Defendant argues that Plaintiff has not satisfied its burden of proof that it has met all of the requirements of the Rules and Regulations, and therefore, it requests that the court deny Plaintiff’s motion for summary judgment and that the case be set for trial. [Note 4] In the alternative, both parties have requested a remand of this matter to Defendant.

Case law is clear that a municipality’s subdivision rules and regulations controls the grounds upon which a planning board may disapprove a subdivision plan. See Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 696 (1996) (“[a] planning board exceeds its authority if requirements are imposed beyond those established by the rules and regulations.”). It is also clear that on appeal, a reviewing court’s analysis must be based solely on the planning board’s stated reasons for approval or disapproval. Canter, 4 Mass. App. Ct. at 307 (“[our review] must be confined to the reasons for disapproval of the subdivision plan stated by the planning board . . . There is no suggestion in the record that the plan does not comply with any recommendation the board of health may have made under G. L. c. 41, § 81U, or with any provision of the town’s zoning by-law.”). G. L. c. 41§ 81U, of the Subdivision Control Law, states:


In the event of disapproval, the planning board shall state in detail wherein the plan does not conform to the rules and regulations of the planning board . . . and shall revoke its disapproval and approve a plan which, as amended conforms to such rules and regulations or recommendations. [Note 5]

A look at the stated reasons for denial of the Plan shows that none of the reasons were sufficiently rooted in the Rules and Regulations and Defendant does not argue they were. [Note 6]

Defendant’s stated reasons for denial fell into several categories, none of which cite a specific violation of the Rules and Regulations:

1) Concern with future impact of the subdivision (reasons (i)-(vi)). The Massachusetts Appeals Court has held that “[a]bsent a specific provision in its duly enacted rules and regulations, a planning board may not reject a subdivision plan based upon the anticipated impact of the subdivision upon surrounding areas . . . If a specific impact of a completed subdivision may not be considered by a planning board if it has not enacted regulations on the subject, it follows that the effect of a subdivision construction process may not be the basis for disapproval of an otherwise conforming subdivision plan unless it violates a ‘comprehensive, reasonably definite, and carefully drafted’ regulation of the planning board.” Sealund Sisters, Inc. v. Planning Bd. of Weymouth, 50 Mass. App. Ct. 346 , 349 (2000). A look at the language of the Decision confirms this “anticipated impact” was the basis for the Decision:

(i) “The Board is concerned that [the seasonal highwater table] will affect the future stability of the road surface.”

(ii) “[Construction] will cause a significant hardship for [abutting] residents resulting in, at a minimum, air pollution in the form of dust and exhaust, noise, and possible structural damage during compaction.”

(iii) “The Board does not feel that the grading shown will be able to be maintained ... after construction [because lot owners may want larger yards in the future].”

(iv) “[The Board is concerned that] the abutting properties may receive more drainage post-construction than pre-construction.”

(v) “the addition of four residences may worsen [the existing substandard sewer].”

(vi) “The landscaped strips shown on the plan ... represent poor planning [property owners will have to shovel large areas of sidewalks if there is snow]. The Board is of the opinion that the applicant did not adequately explore other design solutions.”

To be sure, a planning board has the authority to regulate sewage, drainage, roads, and similar municipal concerns relating to a subdivision plan. In the Rules and Regulations there are detailed requirements for sewers, drainage, and roads which Defendant has the authority to strictly apply to the Plan. However, Defendant’s “feelings” that it will be difficult to maintain adequate grading over the years, and its “concern” that adjacent properties “may” receive more drainage, are not sufficient reasons grounded in the Rules and Regulations, because the Rules and Regulation are properly “comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required and what standards or procedures will be applied to them.” Castle Estates, Inc. v. Park and Planning Bd. of Medfield, 344 Mass. 329 , 334 (1962). The reasons stated in paragraphs (i)-(vi) are not based upon any of the comprehensive and definite requirements in the Rules and Regulations, but rather on subjective and speculative concerns and feelings of Defendant which are not adequate for disapproval of the Plan. However, Defendant’s reference to an existing substandard sewer (reason (v)) raises a potential red flag. Though Defendant does not intimate that the Plan’s sewage proposal is deficient in relation to the Rules and Regulations, Defendant does have the authority to secure “adequate provision[s] for water, sewage, and drainage... .” G. L. c. 41 § 81M. It is unclear whether the Plan’s sewer proposal is in conformity with the Rules and Regulations. [Note 7] However, since the Decision is vague and it is not possible to determine the basis for this conclusion, I require that Defendant specifically address the issue of sewer adequacy on remand.

2) Similarly, reason (vii) relating to deficiencies in the Homeowners Association Agreement did not specify the basis for the inadequacy, other than to make a generalized and speculative statement that maintenance of the subdivision may not be protected. More importantly, the Rules and Regulations do not list a homeowner association as a requirement for approval of a subdivision plan and therefore cannot be proper grounds for rejection.

3) Finally, reason (viii) states that, due to the above-referenced reasons, the subdivision will degrade the neighborhood. Again, this reason is not listed in the Rules and Regulations as a basis for subdivision approval. This condition appears to address statutory concerns relative to a condition for a special permit rather than a subdivision plan. Also, the last sentence of reason (viii) states, “In addition, the Board is of the opinion that the subdivision does not satisfy the Agawam Subdivision Rules and Regulations.” This final sentence seems to indicate that all the other reasons cited were not at all based upon the Rules and Regulations, because the terms “In addition...” are indicative of a separate consideration, apart from the ones previously stated. This throw away sentence is the only reference to the Rules and Regulations in the Decision and is further proof that the Rules and Regulations were not the focus of Defendant’s deliberations. Even if they were considered, the Decision is in no way specific enough for this court to find it sufficiently definite, as required by the Subdivision Control Law.

Based on the foregoing, I find that the Decision was arbitrary, unreasonable, and beyond the scope of authority of Defendant, and the Decision is annulled. [Note 8] As a result, I ALLOW Plaintiff’s Motion for Summary Judgment. [Note 9] The matter shall be remanded to Defendant, to hold a public hearing on the Plan for purposes of issuing a judgment in accordance with the applicable statutes, Rules and Regulations, and this decision. Prior to such hearing, Plaintiff shall have the opportunity, if it chooses to do so, to amend the Plan before submission to Defendants, and all other interested parties, including the Abutters, shall have the opportunity to participate in the hearing as provided by and in accordance with all applicable procedures. This court shall retain jurisdiction over the case pending final action from Defendant.

So ordered.


[Note 1] The Abutters filed an unverified Complaint against Plaintiff and the Town of Agawam on March 28, 2011 (11 MISC 446698), claiming zoning violations caused by the subdivision and issues involving the ownership of property which Plaintiff intends to use for access to the subdivision. Discovery is ongoing in this case.

[Note 2] The Abutters filed an amicus brief on October 26, 2011, along with a Motion for Leave to file such brief, a copy of Plaintiff’s definitive plan, and a copy of the Town of Agawam’s Rules and Regulations. The abutters also appeared at the oral argument on November 7, 2011, to argue their motion. This court shall entertain the amicus brief, together with its’ exhibits, and give such weight as it deems appropriate.

[Note 3] The subdivision plans included plans for site grading, drainage and erosion control, site utilities, roadways and site construction.

[Note 4] Defendant points out that Plaintiff did not submit any facts on which this court can rely in a trial de novo situation. As a result, Defendant does not argue the merits of the Decision.

[Note 5] This same language is stated in the Rules and Regulations, Article III § 159-7(G)(1)(b).

[Note 6] It should be noted that the Planning Board gave reasons for its denial, but such reasons did not cite any specific violation of the Rules and Regulations or any other regulation or statute. As a result, it does not appear that the lack of reference to the Rules and Regulations was a clerical error.

[Note 7] It should be noted that, in general, the approval or disapproval of a subdivision plan may not rightly be based upon factors outside the subdivision without a specific provision of the Rules and Regulations allowing for such consideration. North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432 , 439 (1981), citing, Fairbairn, 5 Mass. App. Ct. at 179.

[Note 8] It should be noted that Defendant does not argue the merits of the summary judgment motion. Instead, Defendant argues that the burden of proof is on Plaintiff to show that it is entitled to subdivision approval, and states that Plaintiff has not given any facts to support its burden of proof. In fact, at oral argument, Defendant did not argue that the Plan was in violation of specific sections of the Rules and Regulations or the Agawam Zoning Bylaw; moreover, Defendant advised this court that Plaintiff might be entitled to summary judgment if the proper evidence was before this court. This court, however, as discussed, supra, has determined that, based on the summary judgment record, the reasons stated in the Decision do not support the denial of the subdivision–which was the burden Plaintiff was required to prove.

[Note 9] See Canter, 4 Mass. App. Ct. at 309, which states, “The rules and regulations were admitted in evidence and are before us. We find nothing in them that appears to be directed to those aspects of the plan which were made the grounds for disapproval. The planning board does not contend otherwise. It follows that the board’s decision cannot be sustained.”