MARJORIE M. WYLDE, PAUL MAHER, PATRICIA PATTERSON, RONALD TURBIN, JUDITH TURBIN, DAVID KEISER-CLARK, ERIN KEISER-CLARK, HENRY BRATCHER, JR. as trustee of Cold Spring South Nominee Trust, JAMES MACGREGOR BURNS, NICHOLAS WRIGHT and JOAN SAFFORD WRIGHT v. ROBIN MALLOY, SARAH GARDNER, RICHARD DEMAYO, GEORGE SARROUF and JOHN HOLDEN as members of the TOWN OF WILLIAMSTOWN PLANNING BOARD, CHARLES FOX and JOAN BURNS. CHARLES FOX v. MARJORIE M. WYLDE, PAUL MAHER, PATRICIA PATTERSON, RONALD TURBIN, JUDITH TURBIN, DAVID KEISER-CLARK, ERIN KEISER-CLARK, HENRY BRATCHER, JR. as trustee of Cold Spring South Nominee Trust, JAMES MACGREGOR BURNS, NICHOLAS WRIGHT and JOAN SAFFORD WRIGHT. ROBIN MALLOY, SARAH GARDNER, RICHARD DEMAYO, GEORGE SARROUF and JOHN HOLDEN as members of the TOWN OF WILLIAMSTOWN PLANNING BOARD and RICHARD DEMAYO, PATRICK DUNLEAVY, CHRISTOPHER WINTERS, ANDREW HOGELAND and ANN MCCALLUM as members of the TOWN OF WILLIAMSTOWN PLANNING BOARD at the time of the Board's November 10, 2010 response to the Land Court's questions on Remand.

Introduction

By two written decisions, one in 2006 and the second in 2008, the Williamstown Planning Board approved Mr. Charles Fox and Ms. Joan Burns’ definitive plan for a 10-lot subdivision (eight buildable lots and two non-buildable) off Bee Hill Road in Williamstown. [Note 1] The plaintiffs [Note 2] — either abutters to the subdivision, owners of property along Bee Hill Road, or both — appealed that approval to this court in the above-captioned cases. [Note 3] After a six-day, jury- waived trial, by Decision dated July 10, 2009, this court (Long, J.) affirmed the Planning Board on nearly all of the issues presented by the appeal and dismissed the plaintiffs’ challenges on the issues so affirmed. Wylde v. Williamstown Planning Bd., et al., 17 LCR 488 (2009). The issues not affirmed were remanded to the Board for further proceedings. This Decision addresses those issues post-remand.

In my initial (2009) Decision, in the part relevant to this post-remand review (the adequacy of Bee Hill Road to provide access to the subdivision), [Note 4] I found that the Planning Board’s grant of waivers from strict compliance with the Subdivision Rules and Regulations requirements for traveled width, paving, sidewalks, and underground utilities for the portion of Bee Hill Road from Foxwood Lane [Note 5] to the Taconic Trail (hereafter referred-to as the “southern section” of Bee Hill Road) [Note 6] was “reasonable[,]…in the public interest, and…not inconsistent with the Subdivision Control Law.” Wylde, 17 LCR at 494-495. As the Board found, and I concurred, after the roadway improvements required by the Board were made, [Note 7] the differences were only “minor exceptions” from full compliance [Note 8] and the Board was reasonable in finding that there was “adequate access” to the subdivision along that southern section — the section it presumed would be the main route used by subdivision residents. [Note 9] The existing traffic volume on Bee Hill Road is very, very low (ten car trips in one direction, nine in the other, during the weekday peak morning hour; six car trips in one direction, three in the other, during the weekday peak evening hour; and, counting both directions, only 129 car trips, total, during the entirety of an average day); [Note 10] this eight-house subdivision will not materially change those numbers; there are no visibility or “sight line” issues along any section of the road; [Note 11] over 90% of the cars using Bee Hill Road go less than 30 m.p.h., [Note 12] and the fire department was satisfied with the emergency access it provides. [Note 13]

As just noted, the Board’s explicit waivers related to the southern section of Bee Hill Road. The evidence showed, however, that at least some traffic to and from the subdivision during at least some part of the year (more in the summer than the winter) would travel north on Bee Hill Road toward Cold Spring Road (“the northern section” of Bee Hill Road), and the Planning Board made no explicit findings regarding the adequacy of access for that section of the road or whether any waivers from strict compliance with the subdivision Rules and Regulations’ requirements on that section were appropriate. The Subdivision Rules and Regulations require such explicit findings and rulings. [Note 14] I thus found and ruled:

…the Applicants did not meet the literal requirements of certain rules and regulations and the Board failed to explicitly waive compliance with such sections. Accordingly, these cases are REMANDED to the Board for further findings consistent with this Decision (and, if necessary and deemed appropriate by the Board, explicit waivers) for the following issues: (1) the adequacy of Bee Hill Road to provide access between Foxwood Lane and Cold Spring Road [i.e., its northern section], (2) Rules and Regulations §170- 4.3.D(1)’s requirements regarding overspill height and the slope of basins, (3) §170- 4.3.D(2)(a)’s requirements regarding the two-foot separation between the base of basins and the water table and the timeframe for collecting data, (4) §170-4.3.D(2)(b)’s requirement regarding the construction of basins below grade and on fill, and (5) the timing of improvements to Bee Hill Road. [Note 15]

Wylde, 17 LCR at 504. I retained jurisdiction of the cases, and final judgment was reserved, until such time as the Board’s response was received and appropriate proceedings in light of that response were conducted.

The Board held a series of hearings on the remand issues (Sept. 21, Oct. 5 and Nov. 9, 2010) and issued its written response on November 10, 2010, which was approved and signed by the Board on December 14, 2010 and filed with the town clerk on December 16, 2010. The response was not a “decision” in the usual sense. [Note 16] It simply listed the issues remanded and responded to them (by formal vote) one by one. The Board found that the northern section of Bee Hill Road did not meet the requirements for adequate access under §170-2.3 of the town’s Subdivision Rules and Regulations and, in contrast to its previous findings and rulings on the southern section, denied Mr. Fox and Ms. Burns’ request to waive strict compliance with those requirements on the northern section. Planning Board Remand Response at 1-2 (Nov. 10, 2010). [Note 17]

Mr. Fox filed an objection to the Planning Board’s remand response, styled as “Motion of Charles Fox to Object to the Planning Board’s Response to the Land Court’s Remand” on April 7, 2011. The plaintiff abutters and the Planning Board opposed that motion, contending that the Board’s remand response was a “decision” subject to the twenty-day appeal period set forth in G.L. c. 41, § 81BB, and thus Mr. Fox’s objection was time-barred. I rejected that argument, finding that the Board’s remand response merely filled in gaps in the pending proceedings, but was not itself a new decision since no plan was approved or disapproved and no permit was granted or denied. See Memorandum and Order on the Motion of Charles Fox to Object to the Planning Board’s Response to the Land Court’s Remand at 6 (Jun. 14, 2012). Mr. Fox was permitted to object to the Planning Board’s response by filing an amended pleading. Id. He then filed separate, amended answers in Case Nos. 324035 and 370547 on July 13, 2012, naming the original plaintiffs in those actions as defendants in counterclaim, the current members of the Planning Board as defendants in cross-claim, and the members of the Planning Board at the time the remand response was issued as third-party defendants. For the purposes of this Decision, I continue to refer to the abutters collectively as “the plaintiffs.”

The trial was resumed for an additional day in 2013 to address the Planning Board’s vote against waiving strict compliance with the access requirements of the town’s Subdivision Rules and Regulations for the northern section of Bee Hill Road. [Note 18] Based on the agreed facts contained in the parties’ pre-trial memoranda, my observations at the view, the testimony and exhibits admitted into evidence during the entirety of the trial, the parties’ admissions in their post-trial memoranda, my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that the Planning Board’s refusal to grant waivers for the northern section of Bee Hill Road was arbitrary and capricious and is therefore REVERSED.

Facts

Bee Hill Road runs for approximately 1.3 miles (6,600 feet) between its intersection with the Taconic Trail on the south and Cold Spring Road on the north. See Ex. 1. It is a dirt and gravel road, designated “scenic”, descending towards Williamstown along the side of Bee Hill. Id. Its effective traveled width can vary slightly depending on the season. Measured shoulder- break to shoulder-break, it is 12’ wide at its narrowest and 18’ at its widest. See Ex. 3 (attached). As the testimony established, nearly all is in the range of 13’ to 18’.

The surface conditions and the range of traveled widths (between 13 and 18 feet) are consistent on both the southern and northern sections of Bee Hill Road. The only differences between the two are as follows. The northern section from Foxwood Lane to Cold Spring Road is approximately 1.1 miles long whereas the southern section to the Taconic Trail is .2 miles; Bee Hill Road slopes downhill as it travels north toward Cold Spring Road; [Note 19] and there is a 19’-wide bridge, known as the Bowstring Bridge, on the northern section approximately .2 miles from the intersection of Bee Hill and Cold Spring Roads. See Exs. 1 & 3. The bridge has no impact on adequacy considerations. It is flat and wide. The fact that the shortest distance from the proposed subdivision to a main road is the southern section, and that the southern section is less sloping than the northern, are further proof that the subdivision will have adequate access. In winter conditions, allegedly the time of greatest concern, the subdivision residents will take the shorter route to a main road (the southern section) to get to and from their homes, and the Board has already explicitly found that section to be adequate for access, even in the winter.

Even apart from this, the evidence showed that the northern section provides adequate access to the subdivision viewed solely on its own. When assessing roadway safety and adequacy, experts focus primarily on traffic volume, speed, and visibility. These then factor into the assessment of the adequacy of roadway width — broadly speaking, the ability of vehicles to see and get past each other safely when traveling in opposite directions. At intersections, the focus is on the ability to see and react to approaching cars given expected stopping distances, itself a function of expected speed. Also considered are pedestrian issues. Broadly speaking, will there be pedestrian encounters and, when they occur, can vehicles and pedestrians safely see each other and get out of the other’s way? Lastly, will the road be adequate for emergency vehicles? Municipalities, such as Williamstown, have subdivision rules and regulations on roadway dimensions that presumptively establish safety and adequacy. But all municipalities, including Williamstown, recognize the appropriateness of waivers when safety and adequacy are otherwise assured. Indeed, the Board granted precisely such waivers with respect to the southern section of Bee Hill Road.

Vehicles traveling from Cold Spring Road to the site of the proposed Foxwood Lane subdivision (i.e. along its northern section, see Ex. 1) drive uphill, but the evidence showed that these vehicles have more than adequate visibility to make accommodations for oncoming traffic or objects in the road. Although the proposed subdivision is not a “major development” under the Williamstown Zoning Code, and is therefore not required to meet the sight distance guidelines of the American Association of State Highway and Transportation Officials (AASHTO), it nonetheless does so. “Sight distance is the length of roadway ahead visible to the driver. The available sight distance on a roadway should be sufficiently long enough to enable a vehicle traveling at or near the design speed to avoid colliding with a stationary object in its path.” See Trial Ex. 41, AASHTO Guidelines for Geometric Design of Very Low-Volume Local Roads at 30 [hereafter “AASHTO Guidelines”]. [Note 20] Stopping sight distance is composed of the sum of two distances: (1) the distance a vehicle travels from the instant the driver sees an object to the moment when the brakes are applied, and (2) the distance required to stop the vehicle from the moment when the brakes are applied. See id. at 31. As I previously found, based on the traffic analysis performed by Charles LaBatt of Vincent P. Guntlow & Associates, ninety percent of the vehicles observed on Bee Hill Road travel at speeds less than 30 mph. This observed speed is the “design speed” for all of the AASHTO measurements. AASHTO guidelines recommend a stopping sight distance of 165 feet for an existing road that is characterized as a “higher risk” [Note 21] location with 100 to 250 vehicles per day and a design speed of 30 mph. Id. at 39.

Mr. Fox’s expert, Jon Dietrich of Fuss & O’Neill, testified that the stopping sight distance for a car traveling down Bee Hill Road from Cold Spring Road is 297 feet, well in excess of the 165 feet recommended by the AASHTO guidelines. [Note 22] Trial Transcript, Day Four, 265. The AASHTO guidelines also recommend a sight distance of 165 feet for low volume road intersections. Intersection sight distance is simply the distance across the corners of an intersection that a driver would need before being able to turn right or left onto the road. Id. at 265. Mr. Dietrich testified that the intersection of Foxwood Lane and Bee Hill Road has a sight distance of 365 feet to the north in the direction of Cold Spring Road, far greater than the AASHTO requirement. Id. at 266.

Mr. Dietrich testified that the characteristics of Bee Hill Road, narrow with objects and trees close to the roadside, tend to make vehicles travel at a reduced speed. Trial Transcript, Day Four, 273. This is borne out by the traffic analyses, which showed that ninety percent of vehicles traveled under 30 mph. According to the AASHTO guidelines, “the geometric design of very low-volume local roads [like Bee Hill Road] presents a unique challenge because the very low traffic volumes and reduced frequency of crashes make designs normally applied on higher volume roads less cost effective.” AASHTO Guidelines at xxi. The plaintiffs’ expert, David Loring, agreed, stating that he would not recommend paving the entire length of Bee Hill Road and that other design measures such as “roadside clear zones” (i.e., widened sections of the road) provide little benefit on low volume roads. Trial Transcript, Day One, 182-84. Joseph Romano, the Planning Board’s independent reviewing engineer, testified that strict adherence to the town’s regulations for adequate access may not always be prudent or cost effective. Trial Ex. 33 at 73. Because the benefits of design changes for low-volume roads are minimal, AASHTO guidelines recommend implementing improvements only “at locations on existing roads where site-specific problems are found.” AASHTO Guidelines at 14.

When trial resumed on the seventh day, the plaintiffs introduced into evidence police reports showing only ten vehicle incidents on Bee Hill Road, total, for the nine-year period from January 1, 2004 to February 28, 2013. Four of these reports document conflicts that resulted from two vehicles traveling from opposite directions on Bee Hill Road that either made contact or swerved to avoid contact. See Trial Ex. 81. No personal injuries resulted. Two reports document instances where vehicles ended up in a roadside ditch after trying to back out of a residential driveway and, in a third report, a vehicle ended up in the roadside ditch after attempting to make a three-point-turn on Bee Hill Road. The remaining reports involve single vehicle incidents. In these reports, one driver crashed after swerving to avoid a deer in the road, another drove into the roadway embankment for reasons not persuasively explained, and another slid into the roadside ditch on an icy day. Only the report involving the vehicle that drove into the roadway embankment described any personal injury. None of these police reports indicate “site specific safety problems” that might merit costly roadway improvements. Importantly, few— if any — of these incidents are relevant to the proposed subdivision. Its residents will not be backing out of a driveway or attempting three-point turns on Bee Hill Road. They will be going to or from their homes (a known destination), which do not have driveways on Bee Hill Road. The subdivision residents, living there, will certainly be conscious of deer and take appropriate precautions. And, as discussed above, on icy winter days they will use the southern section of Bee Hill Road.

Although several plaintiffs voiced concerns about the safety and adequacy of Bee Hill Road, they testified that they themselves use the entire road, including the northern section, on a daily basis. Alan Evenson, who lives on the northern section of Bee Hill Road near Cold Spring Road, testified that he drives down Bee Hill Road to the Taconic Trail in order to get to his work in New York state and takes the same route to get back home. Trial Transcript, Day One, 225. Judith Turbin lives near the intersection of Bee Hill Road and the Taconic Trail. Although she could take the Taconic Trail to get to her work in Williamstown, she testified that she likes to drive the entire length of Bee Hill Road when heading north because there are “gorgeous views” along this section of the road. Trial Transcript, Day Two, 26. Her husband, Ronald Turbin, similarly drives over the northern section of the road when he has business in Williamstown. Trial Transcript, Day Six, 204. Marjorie Wylde, who also lives near the intersection of Bee Hill Road and the Taconic Trail, can either take the Taconic Trail or drive the length of Bee Hill Road to get to her work at Williams College. She acknowledged that taking Bee Hill Road is the “shorter and prettier” route. On her way home, she uses Bee Hill Road, driving down the northern section of the road to reach her property. Trial Transcript, Day Two, 217. While these plaintiffs testified about their concerns that more vehicles on Bee Hill Road will negatively affect its condition and safety, [Note 23] they were also hesitant to support measures such as paving or widening the road, believing that this would lead to drivers speeding down the road and would ultimately change the road’s historical character. Trial Transcript, Day Two, 19-20, 39.

After the court remanded these cases back to the Planning Board, the Board solicited comments from town officials as required by its Subdivision Rules and Regulations § 170-2.3(C) (“The Board may waive strict compliance with these access requirement only upon its determination, following consultation with the Town Manager, Director of Public Works, Police Chief and Fire Chief.”). Town Manager Peter Fohlin wrote to the Board that “Bee Hill Road does not vary significantly from the other unpaved roads in town.” Trial Ex. 70, Letter to the Planning Board (Sept. 21 2010). He also expressed his opinion that “[t]he addition of 8 homes to the existing 19 would not appear to overtax the infrastructure compared to that which otherwise would have been permissible by right under our Zoning By-laws.” Police Chief Kyle Johnson responded via email, stating “I have no comments to offer as the construction of this subdivision will not change the way police services are managed in this specific area, or anywhere else in the Town of Williamstown.” Trial Ex. 71. No other or further comments were provided by Fire Chief Craig Pedercini, who in 2006 had submitted a letter stating his department’s satisfaction with the subdivision so long as the subdivision road itself, Foxwood Lane, was paved and maintained by the subdivision homeowners. Trial Ex. 13. Similarly, the Director of Public Works, Tim Kaiser did not express any new opinions, but as discussed in the court’s prior Decision, had testified extensively about his familiarity with Bee Hill Road. See Wylde, 17 LCR at 494-95. He testified that cars traveling on Bee Hill Road have been able to pass his DPW dump trucks, even with their snow plows attached. Trial Transcript, Day Three, 195. He himself has never felt unsafe on Bee Hill Road and, if he believed roadway improvements were needed to improve safety, he would bring a budget proposal to the Selectmen, but has never felt such a request was necessary. Trial Transcript, Day Three, 198.

Further facts are discussed in the Analysis section below.

Analysis

As noted in my earlier Decision, in a G.L. c. 41, § 81BB appeal, “[t]he trial court’s duties . . . are to conduct a hearing de novo, find the relevant facts, and determine the validity of the planning board’s decision” based on those facts. Wylde, 17 LCR at 491, citing Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104 , 106 (1991); Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 479 (1955); and Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). “Unlike a grant of a variance from a zoning by-law, to which no one has a legal right, [an applicant] is entitled to have a definitive subdivision plan approved unless it is shown to be in conflict with recommendations of the board of health (as to which no contention is here raised) or the reasonable rules and regulations of the planning board.” Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548 (1975). The Board has previously approved all aspects of the plan at issue in these cases except for those which have now been mooted by Mr. Fox’s agreement to meet the strict requirements of the Subdivision Rules and Regulations, [Note 24] and except for the adequacy of the northern section of Bee Hill Road to provide access to the subdivision.

It is undisputed that neither the southern nor the northern sections of Bee Hill Road comply with the access standards set forth in the Rules and Regulations. It is also undisputed that the Board may waive strict compliance with those access requirements “upon its determination, following consultation with the Town Manager, Director of Public Works, Police Chief and Fire Chief, that the way in fact will be sufficient to serve proposed uses of land.” Subdivision Rules and Regulations, §§170-2.3(B)(2) and 170-2.3(C). Despite the views of those officials, none of whom raised an objection, and despite its previous waiver for the southern section of Bee Hill Road, the Board has now refused to grant a similar waiver for the northern section.

The standard for review of that refusal is the familiar one. A planning board has broad discretion under G.L. c. 41, § 81R to waive strict compliance with the requirements of its subdivision rules and regulations when such waiver is in the public interest and not inconsistent with the intent and purpose of the subdivision control law. Musto v. Planning Bd. of Medfield, 54 Mass. App. Ct. 831 , 837 (2002) (internal citations and quotations omitted). It is not required to grant a waiver, but its refusal to do so must be reversed if premised on “a legally untenable ground, or [if] unreasonable, whimsical, capricious or arbitrary.’” Id. The question thus presented is whether the Board’s refusal of a waiver for the northern section was “unreasonable, whimsical, capricious or arbitrary” and thus an abuse of its discretion. Id. at 837-839. Certainly the plaintiffs are opposed to such a waiver, but that opposition alone provides no basis to refuse it. “A plan may not be disapproved ‘merely because the board feels general public considerations make such action desirable.’” Mac-Rich Realty Const., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 84-85 (1976) (quoting Pieper v. Planning Bd. of Southborough, 340 Mass. 157 , 163-64 (1959). It is the facts that are determinative and, here, the weighing of those facts in light of the Board’s own findings with respect to the southern section of Bee Hill Road and its prior rulings with respect to another subdivision (Flora Glen) off Bee Hill Road.

At the outset, I address Mr. Fox’s argument concerning a stipulation by the Board prior to the resumption of the trial after remand in 2013. That stipulation was as follows:

The Planning Board, in its 2006 decision, interpreted Subdivision Rules and Regulations 170-2.3 as requiring adequacy of access to only one numbered state highway [,] and the Board found that access to be adequate so long as the improvements set forth in that decision were made. The stretch of Bee Hill Road that it addressed was from Foxwood Lane to Taconic Trail [the southern section].

Notice of Docket Entry (Feb. 4, 2013). Mr. Fox contends that this stipulation eliminates any need to consider whether the northern section of Bee Hill Road provides adequate access to Foxwood Lane. His argument, in sum, is this. The Board’s 2006 decision created an ambiguity by stating that “access to Foxwood Lane is presumed to be from Taconic Trail.” The stipulation clarifies that ambiguity by revealing that “the Board’s decision to approve the Foxwood Lane Subdivision was informed not by a ‘presumption’ that vehicles would access the subdivision from the Taconic Trail (Route 2), but by the Board’s interpretation of its [subdivision rules and regulations] as requiring access to one, and not all, state numbered highways.” Trial Brief of Charles Fox at 5. In light of this stipulation, Mr. Fox contends that where § 170-2.3(B) states that the access road must continuously meet the design and construction standards of Article IV of the Rules and Regulations, the term “continuously” should only be applied to the shortest distance between the subdivision and a state numbered highway (i.e. the southern portion of Bee Hill Road to the Taconic Trail) instead of Bee Hill Road’s entire length. I disagree.

Mr. Fox misreads the Board’s stipulation. As noted in my prior Decision, “I agree with the Applicants that Rules and Regulations § 170-2.3 does not require adequate access to two numbered state highways.” See Wylde, 17 LCR at 497 n. 41 (emphasis added). And I also agree with the Board’s presumption that the southern section would be the main route used by subdivision residents. [Note 25] But this does not mean that the Board cannot consider the adequacy of access to and from the other direction and any impact from the subdivision on the safety of vehicles that use that portion of the road. [Note 26] Any interpretation of the Rules and Regulations that says otherwise would be unreasonable, and one the Board did not make. Its stipulation certainly does not say so.

I now turn to the merits of the Board’s remand response. In that response, the Board began by unanimously approving the following motion:

…that the section of Bee Hill Road from the proposed Foxwood Lane, north, to Cold Spring Road (Route 7) does not meet the requirements for adequate access as stated in §170-2.3 of the Subdivision Rules and Regulations.

Remand Response at 1. This is correct. As the evidence showed (and the parties do not dispute), the northern section of Bee Hill Road, like the southern section for which waivers had been granted, does not “continuously meet the [design and construction] standards of Article IV” because it is not a paved road and lacks other features such as underground utilities and sidewalks. See Subdivision Rules and Regulations § 170-2.3(B).

The Board then proceeded to the next motion, which provided

…that the Planning Board waive, in accordance with §170-2.3.C, strict compliance with the standards of §170-4 of the Subdivision Rules and Regulations for the portion of Bee Hill Road from the proposed Foxwood Lane, north, to Cold Spring Road (Route 7). The Board finds that this section of Bee Hill Road will provide adequate access to the proposed subdivision with minor exceptions from the following requirements:

-traveled width

-paving

-sidewalks

-underground utilites

-average slope

In granting this waiver the Board further finds, after consultation with the Police Chief, Fire Chief, Town Manager, and Public Works Director, that Bee Hill Road is a public way that has been in existence for over 200 years and does not vary significantly from other public unpaved roads in Williamstown. The road supports a very low volume of traffic and is sufficiently maintained to provide adequate access for this traffic and the traffic generated from the proposed Foxwood Lane.

Remand Response at 1. This motion was defeated by a vote of 3-2.

Thus, with respect to the northern section of Bee Hill Road, the Board ruled the opposite of its previous findings regarding the southern section. There, the Board found:

In accordance with Section 170-2.3(C), the Board finds this portion of Bee Hill Road, following the improvements thereof…to have adequate access, with minor exceptions from the following:

-traveled width

-paving

-sidewalks

-underground utilities

Planning Board Decision at 2 (May 16, 2006).

I can find no valid reason to justify this change. The evidence at trial demonstrated that the characteristics and conditions of the northern section of Bee Hill Road are consistent with those of the southern section of the road. The only differences between the two are that the northern section is longer, it slopes gradually downhill, and there is a bridge over a portion of the road as it approaches Cold Spring Road. But there was no persuasive evidence that any of these features make travel on the northern section of the road materially different for purposes of judging the adequacy of access it provides to and from the subdivision, or that the vehicles added by the subdivision, when they use this section of the road, will have any material effect on its safety or adequacy for other drivers..

The evidence, in fact, showed the opposite. Stopping sight distances, both for vehicles approaching the proposed subdivision from the north or exiting the subdivision heading north, exceed the AASHTO guidelines. Because Bee Hill Road is a narrow, gravel road, the traffic analysis demonstrated that vehicles traveling on the road drive at lower speeds, far less than the 40 mph limit that is permitted on roads with no posted speed limit. See G.L. c. 90, § 17 (“on any other way outside a thickly settled or business district at a rate of speed exceeding forty miles per hour for a distance of a quarter of a mile”). Several plaintiffs who voiced their concerns about the adequacy of Bee Hill Road also testified that they regularly drive over the northern section of the road going to and from the center of Williamstown or as a shortcut to get to New York state. Do as I say, not as I do, is not a convincing argument.

I recognize that the Board found that the “portion of Bee Hill Road [from the subdivision to the Taconic Trail, i.e. its southern section], following the improvements thereof…[will] have adequate access….” Decision at 2 (May 16, 2006) (emphasis added). Those improvements include grading, replacing surface materials, installing geotextile fabric, installing a splash pad in the ditches, installing drainage measures, and improving the pond discharge pipe. See Wylde, 17 LCR at 494 (discussing improvements). But they are limited to the proposed subdivision’s 600 feet of frontage and do not extend all the way down the southern section of Bee Hill Road to the Taconic Trail. Trial Transcript, Day Four, 268. Thus, they cannot be construed as making the conditions of the southern section of the road superior to those of the northern section. The two remain materially the same. At most, they reflect the Board’s (and my) conclusion that the southern section of Bee Hill Road will be the main route of access to and from the subdivision, particularly in winter conditions, and thus warranted such limited improvements. As the town’s own Director of Public Works testified, he himself has never felt unsafe on Bee Hill Road and, if he believed roadway improvements were needed to improve safety, he would bring a budget proposal to the Selectmen, but has never felt such a request was necessary. Trial Transcript, Day Three, 198. The few cars added by the subdivision, on the occasions they use the northern section, will not change this.

Section 170-2.3(C) of the town’s Subdivision Rules and Regulations provides that “[t]he Board may waive strict compliance with these access requirements only upon its determination, following consultation with the Town Manager, Director of Public Works, Police Chief and Fire Chief, that the way will be sufficient to serve proposed uses of land.” None of these town officials opposed granting waivers for the northern section of Bee Hill Road. The Town Manager, Peter Fohlin, expressed his view that the proposed subdivision should not impact reliable access along Bee Hill Road. Police Chief Kyle Johnson had no comments to offer since he believed the subdivision would not affect the delivery of police services in this area. The other town officials—Tim Kaiser, Director of Public Works, and Fire Chief Craig Pedercini—did not provide any new comments for the Board’s consideration on remand. I therefore conclude they had no substantive concerns about granting waivers for the northern section of Bee Hill Road.

Other evidence weighs in favor of granting waivers under these circumstances. Both the plaintiffs’ expert, David Loring, and the Planning Board’s independent engineer, Joseph Romano, agreed that improvements, such as paving or widening, on low-volume local roads like Bee Hill Road would not necessarily increase safety or be cost effective. Their views were consistent with those contained in the AASHTO design guidelines for low-volume local roads. See AASHTO Guidelines at xxi (“[t]he geometric design of very low-volume local roads presents a unique challenge because the very low traffic volumes and reduced frequency of crashes make designs normally applied on higher volume roads less cost effective.”).

The police reports concerning vehicle incidents on Bee Hill Road also fail to justify the Planning Board’s refusal to grant waivers for the northern section of the road. There have only been ten vehicle incidents in the nine-year period from 2004 to 2013. The maximum number of incidents in a given year has never exceeded two. They are spread out over different months and not limited to a particular season. For example, three occurred in January, one each in April, May, and July, two in August, and two in December. Only a few involved cars coming from opposite directions and, in those cases, only minor vehicle damage was reported. Those and other incidents were driver errors, like the vehicles that ended up in the roadside ditch after trying to back out of a residential driveway. According to the reports, these incidents happened on both the northern and southern sections of Bee Hill Road, thereby suggesting that one section of the road is not more problematic than the other. And, as previously noted, they are not the type of incidents that will likely involve drivers from the proposed subdivision. [Note 27]

Finally, when trial resumed following the remand, Mr. Fox presented evidence that in 2003 the Board approved a four-lot subdivision known as Flora Glen on the northern section of Bee Hill Road, approximately .1 miles from Cold Spring Road. See Trial Ex. 73. According to the plaintiffs’ expert, David Loring, Bee Hill Road narrows to approximately 14 feet in width near the Flora Glen subdivision road. The Board’s decision on the Flora Glen subdivision explicitly waived requirements for curbing and paving, reasoning that the natural conditions on Bee Hill Road would be better for drainage. Trial Ex. 73. The Board’s decision makes no mention of traveled width requirements or underground utilities and thus, I presume those were waived as well.

The Board contends its approval of the Flora Glen subdivision has no relevance to whether its refusal to waive strict compliance with the access requirements for the northern section of Bee Hill Road was arbitrary or capricious. The difference between the two projects, it contends, is that the Flora Glen subdivision is located approximately .1 miles from Cold Spring Road, which provides access to downtown Williamstown. The Planning Board asserts that residents of Flora Glen only need to travel on a relatively small part of the northern section of Bee Hill Road to reach supermarkets, restaurants, and other commercial services. I find this unpersuasive.

The residents of Flora Glen have every right to travel the entire length of Bee Hill Road and undoubtedly do so. For instance, Mr. Evenson, who lives on the northern section of Bee Hill Road, but not in the Flora Glen subdivision, testified that it would take him three times longer if he used Cold Spring Road to get to the Taconic Trail leading to New York state than it would if he simply drove down the length of Bee Hill Road to the Taconic Trail. Besides the fact that using Bee Hill Road is more time efficient, as Mr. Evenson explained, if he were to travel north to the intersection of Cold Spring Road, he would need to make a 180 degree turn, what he described as “a dangerous turn,” if he wanted to get to the Taconic Trail heading to New York. Trial Transcript, Day One, 226. It can thus be inferred from this evidence that the residents of Flora Glen also use the entire length of Bee Hill Road when they wish to travel south or west to New York state.

As previously noted, a planning board is not required to grant waivers. But it cannot deny them if to do so is premised upon “a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Musto, 54 Mass. App. Ct. at 837. Here, the evidence established that the surface conditions of Bee Hill Road are materially uniform for its entire length, from the Taconic Trail to Cold Spring Road. The road is regularly traveled, both by the plaintiffs themselves and others seeking to reach the center of Williamstown or as a short cut to New York state. Traffic incidents along the road do not show that the northern section is more dangerous, and town officials, such as the Town Manager and Police Chief, with whom the Planning Board must consult when considering waivers, had no objection to granting waivers for the northern section of Bee Hill Road. By reversing the position it took in its 2006 decision, without any credible facts to support such a reversal, I find and conclude that the Planning Board’s refusal to waive strict compliance with the design and construction standards of Subdivision Rules and Regulations Article IV was arbitrary and capricious and is therefore REVERSED.

Conclusion

For foregoing reasons, the Planning Board’s vote against granting waivers for the northern section of Bee Hill Road is REVERSED. The Board is hereby ORDERED to waive strict compliance with the requirements that were identified in the Planning Board’s November 10, 2010 remand response.

Judgment in accordance with this Decision and the court’s prior Decision (Jul. 10, 2009) shall enter accordingly.

SO ORDERED.