MISC 16-000570

July 11, 2019

Middlesex, ss.



In 2015, defendants David Guthrie and Christopher Finneral purchased a property at 64 Main Street in Westford. In 2016, they applied to the defendant Westford Planning Board for approval of a definitive two-lot, two-residence subdivision of 64 Main Street. Plaintiffs Regina and John Conway, who live at 66 Main Street, appealed the subdivision approval. The Conways own the fee in a 30-foot right of way that runs over the southwest edge of 66 Main Street. That right of way provides access to 64 Main Street. Guthrie and Finneral propose to extend that right of way (which they've dubbed "Kinloch Drive") with a new 50-foot right of way that will be entirely within 64 Main's boundaries. That extension will proceed northwest from the end of the existing right of way, jag to the north and northwest, and end in what's laid out as a cul-de-sac (although as will be seen later, Guthrie and Finneral have no duty as of yet to build a cul-de-sac).

The Court first addressed the issues in this case on summary judgment. See Conway v. Town of Westford Planning Bd., 26 LCR 477 (2018). At that time, the Conways appealed the Board's decision on multiple grounds, two of which are relevant to this decision. First, they disputed the Board's waiver of a requirement in Westford's Subdivision Regulations (the "Regulations") that dead-end streets terminate in a cul-de-sac having a 70-foot outside curb radius (the "Cul-de-Sac Waiver"). The Conways contended that the Board hadn't made the requisite determinations that the Cul-de-Sac Waiver is in the public interest or that the Waiver "better implements" the general guidelines enumerated in § 218-12 of the Regulations. The Conways further argued the Board improperly approved Finneral and Guthrie's subdivision plans without requiring them to obtain the Conways' signature on the subdivision application, contrary to §§ 218-3 and 218-11(A)(1)(b) of the Regulations (requiring all "owners . . . of all land" included in a request for approval of a subdivision to join in the subdivision application) and didn't waive that requirement either.

The Court denied summary judgment for the Conways because there were disputed facts concerning the Conways' standing to appeal Guthrie and Finneral's subdivision approval. But the Court also denied summary judgment to Guthrie and Finneral on the Cul-de-Sac Waiver and the "Applicant" issues. In order to save everyone's resources, the Court remanded the matter to the Board to determine whether it could make the requisite findings supporting the Cul-de-Sac Waiver and to decide whether to waive the "all-owners signature" requirement.

The Board issued its remand decision in December 2018. In that decision, the Board made findings in support of the Cul-de-Sac Waiver and waived the requirement that the Conways sign Guthrie and Finneral's subdivision application (the "Applicant Waiver"). The Conways appealed again to this Court, challenging both Waivers. Finneral and Guthrie resumed their attack on the Conways' standing to challenge the Board's decision.

The parties appeared for trial on April 16, 2019. The Court began the trial with a view of the right of way, the Finneral property (by the time of trial, Guthrie had conveyed his interest in the property), and the Conway property. Based on the testimony and exhibits received at trial, the parties' stipulations of fact, and the arguments of counsel, the Court finds the facts recited above plus these:

1. John and Regina Conway own a single-family residential property at 66 Main Street in Westford, Massachusetts (the "Conway Property"). The Conway Property abuts the north side of Main Street and is roughly rectangular.

2. At the time of the Conways' appeal, David A. Guthrie and Christopher H. Finneral owned the 6.8-acre property at 64 Main Street in Westford (the "Locus"). On January 23, 2019, Guthrie and Finneral conveyed the Locus to Finneral and his wife, Meghan Mahoney. The Locus abuts the north side of the Conway Property.

3. Prior to 1969, the Conway Property and the Locus were part of a single tract of land owned by Mary D. Agnew (the "Agnew Property").

4. In 1969, Ms. Agnew submitted a plan (the "Agnew Plan") to the Westford Planning Board showing a division of the Agnew Property into two parcels, Parcel A (now the Conway Property) and Parcel B (now the Locus).

5. In April 1969, the Planning Board endorsed the Agnew Plan with the words, "Westford Planning Board Approval, Subject to the condition that not more than one dwelling be erected on Parcel 'B' without further approval of the Westford Planning Board."

6. In May 1969, Ms. Agnew conveyed Parcel A on the Agnew Plan to L. Grey and Nancy S. Perry, reserving for herself access rights to Parcel B across Parcel A along a 30-foot right of way (the "ROW") crossing the western edge of Parcel A. Agnew's deed to the Perrys provides in relevant part:

The grantor hereby reserves for herself, her heirs and assigns, the right to use, in common with the grantees, their heirs and assigns, the thirty (30) foot right of way shown on said plan extending from Main Street northerly to other land of the grantor shown as Parcel B on said plan, for all purposes for which streets and ways are commonly used in the Town of Westford, including the right to pave or otherwise improve and maintain all or any part of said right of way and to install or permit to be installed in, upon or over said right of way water, gas, drainage or sewerage pipes and any and all other utility services.

7. At all times pertinent to this Decision, the only lawful access to the Locus from a public way is over the ROW.

8. Following the Planning Board's endorsement of the Agnew Plan, Ms. Agnew built a single-family residence on the Locus (the "Agnew Residence").

9. The Conways bought the Conway Property in 1994. Ms. Agnew was alive at the time and living in the Agnew Residence. The Conways thought that the Locus was restricted to a single residence, but they started hearing a different view from Ms. Agnew's son Trey shortly after her death in 2001.

10. Ms. Agnew's estate sold the Locus in 2014 to Messrs. Finneral and Guthrie. After they purchased the Locus, Finneral and Guthrie moved in two ways to develop the property.

11. One aspect of Finneral and Guthrie's vision was to demolish the modest Agnew Residence and replace it with a far-grander, multi-story residence (called the "Finneral Residence" at trial) with large open yards. Demolition of the Agnew Residence and construction of the Finneral Residence started in June 2015 and lasted well into 2016. Every vehicle associated with the Finneral project, every cubic yard of the considerable fill brought to the Finneral site, every piece of equipment and machinery used on the project, and every load of construction materials reached the Finneral site via the ROW. These uses of the ROW were dramatically different from what the Conways had experienced during the Agnew years. Increased traffic and the considerable construction activity on the Finneral site increased noise on the Conway Property while construction was underway. Construction-related noise and traffic ended once the Finneral Residence was built.

12. The other aspect of Finneral and Guthrie's development efforts was to subdivide the Locus. Finneral and Guthrie first applied to the Planning Board in 2015 for approval of a three-lot subdivision on the Locus, comprised of the Finneral Residence and two other building sites. After several hearings about that plan, Finneral and Guthrie withdrew it.

13. In June 2016, Finneral and Guthrie submitted to the Planning Board an application for approval of a two-lot definitive subdivision plan (the "Second Subdivision Plan"). The Second Subdivision Plan proposed access to its two lots (Lots 1 and 2, respectively) from Main Street via the ROW. Lot 1 was proposed to be the location of the completed Finneral Residence; Lot 2 was to be the site of as-yet unbuilt residence.

14. Finneral and Guthrie revised the Second Subdivision Plan via a plan set dated July 27, 2016.

15. During the application and approval process for the Second Subdivision Plan, Finneral and Guthrie asked the Planning Board to waive several provisions of the Regulations.

16. By a decision dated September 6, 2016 (the "Original Decision"), the Planning Board approved, with conditions, the Second Subdivision Plan as revised.

17. The Conways timely appealed the Original Decision to this Court pursuant to G.L. c. 41, § 81BB.

18. In September 2018, after the parties had filed cross-motions for summary judgment, this Court issued an Order on Motions for Summary Judgment and Remanding Case to Westford Planning Board. This Decision will quote from that Order later, but as evident from the Order's title, this Court remanded the case to the Planning Board for further work.

19. On December 17, 2018, the Planning Board issued a Record of Decision Upon Remand from the Massachusetts Land Court (the "Remand Decision"; together with the Original Decision, the "Decisions"). The Remand Decision is notable for two things.

20. First, the Board granted Finneral and Guthrie a waiver from §§ 218-3 and 218-11(A)(1)(b) of the Regulations (the "Applicant Waiver").

21. Section 218-3 of the Regulations defines certain terms used in the Regulations. Among the defined terms is "Applicant." Section 218-3 defines "Applicant" as (emphasis added):

A person who applies for approval of a plan of a subdivision or who applies for a determination that approval [of a plan under the Subdivision Control Law] is not required. The "applicant" (or "applicants") shall be the owner (or owners) or the duly authorized agent or representative of the owner(s), or his or their assigns, of all land included in the subject request for action before the Planning Board. If a plan for a subdivision of land is to be submitted by one representing to be the agent or assign of an owner, a notarized certificate shall be submitted, signed by the owner, authorizing the person filing the plan to act as agent or assign.

Section 218-11(A)(1)(b) of the Regulations provides (emphasis added): "Any person who submits a definitive plan of a subdivision to the Board for approval shall file . . . [a] properly executed application Form C. . . . The applicant must be the owner(s) of the land and the Form C shall bear original signatures of the owner(s). . . ."

22. The sole purpose of §§ 218-3 and 218-11(A)(1)(b) of the Regulations is to ensure that those applying for definitive subdivision approvals by the Planning Board have the authority to undertake the improvements shown on the applicant's definitive subdivision plan.

23. Neither of Finneral and Guthrie's subdivision applications bore the signatures of the owners of the fee in the ROW, the Conways.

24. As successors in interest to Ms. Agnew in their ownership of the Locus, Finneral and Guthrie (at the time they submitted the Second Subdivision Plan) enjoyed the easement rights set forth in ¶ 6 of this Decision.

25. Between their ownership of the Locus and their easement rights, Finneral and Guthrie had the authority at the time of filing of the Second Subdivision Plan to undertake all of the improvements shown on the revised Second Subdivision Plan. Mr. Finneral still possesses those rights.

26. The second noteworthy aspect of the Remand Decision is that it reaffirmed the Original Decision's waiver of § 218-13(A)(3)(f) of the Regulations (the "Cul-de-sac Waiver").

27. Section 218-13(A)(3)(f) of the Regulations provides in part: "Dead-end streets shall be provided with a circular turnaround at the end having an outside curb radius of not less than seventy (70) feet."

28. The sole purpose of § 218-13(A)(3)(f)'s 70-foot radius requirement is to afford emergency vehicles suitable access to properties within a proposed subdivision.

29. The Decisions show the layout of a right of way serving Lots 1 and 2, "Kinloch Drive," terminating at Lot 2 in a cul-de-sac having a 65-foot radius. The Decisions do not require Finneral to build the cul-de-sac; instead, the Decisions allow Finneral to build, starting within the layout of Kinloch Drive, a sixteen-foot driveway that leads to a circular driveway having a 50-foot radius that would be located partly within the layout of Kinloch Drive and partly within Lot 2.

30. The Westford Fire Department reviewed the revised July 27, 2016 plan set for the Second Subdivision Plan. In a memorandum that the Fire Department sent to the Town Engineer on August 16, 2016 (copy received by the Planning Board on August 19, 2016), the Fire Department noted it had reviewed the "submitted plans for a proposed subdivision at 64 Main Street (rev 7-27-16)" and reported them to be "satisfactory to the Westford Fire Department." Westford's Town Engineer concurred with the Fire Department's conclusions. The Conways provided no evidence that contradicted either of these determinations.

31. The Conways introduced no evidence at trial that the Planning Board's granting of the Cul-de-sac Waiver will have any effect upon the Conways. The proposed dead-end will be approximately 750 feet from the Conways' northern property line. Emergency vehicles already have sufficient access to the Conway Property from Main Street, and have no need to use those portions of Kinloch Drive that are outside of the ROW (including the dead-end) in order to provide services to the Conway Property.

32. The new home on Lot 2 will be approximately 760 feet from the Conways' northern property line, and nearly 1000 feet from the Conways' house. Once built, a home on Lot 2 will have no effect upon the Conways' privacy. There are at least four residences that currently are closer to the Conway Property than Lot 2: the Finneral Residence, two along Wheeler Lane (which lies immediately west of the ROW), and one west of the Conway Property on Main Street. The Conways introduced no evidence of invasions of their privacy stemming from the use of these existing residences, or proof that the use of a residence on Lot 2 will differ from that of the existing residences. Main Street itself is a major thoroughfare. Plaintiff John Conway admitted at trial that Main Street is a "cut-through from New Hampshire" to locations in northern Massachusetts. Traffic on the street averages between 11,000 and 12,000 vehicles per day, with approximately 1000 vehicles per hour during the morning peak hours and 1300 vehicles per hour during the evening peak hours.

33. Once built, a home on Lot 2 will have an insubstantial effect upon traffic and noise around the Conway Property. A home on Lot 2 is estimated to generate approximately ten vehicle trips per day (five entries and five exits) along the ROW. The post-construction geometry and width of the ROW as it meets Main Street will be adequate to serve both houses on the ROW. The Conways do not use the ROW as their principal driveway. Their principal driveway is approximately 100 feet east of the ROW on Main Street. Lot 2's ten-trip addition to Main Street's traffic (see ¶ 32 above) and to traffic-related noise will be trivial.

34. The Conways will hear temporary (that is, not constant) construction-related noise and will encounter construction-related dust on their property during construction on Lot 2. While construction of subdivision infrastructure and Lot 2 could take as little as seven months, the Decisions do not limit the period during which construction may occur. The Original Decision limits only blasting periods and the hours "pertaining to air hammering or similar practices. . . ." The Second Subdivision Plan also restricts certain activities during rain events. While § 218-12(F)(6) of the Regulations purports to restrict the hours and days of construction activities, that subsection is presented as a "guideline or design objective[]," see § 218-12, Introductory paragraph, and there is no note on the Second Subdivision Plan or in the Decisions that makes § 218-12(F)(6) enforceable as to Finneral and Guthrie's approved subdivision.

35. The Conways timely appealed the Remand Decision to this Court.


The parties agree that planning boards may waive strict compliance with their own subdivision rules and regulations "where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law." G.L. c. 41, § 81R; Regulations, § 218-7. A board's decision to grant or deny a waiver "will be upheld unless premised upon 'a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.'" Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 529 (2009), quoting Musto v. Planning Bd. of Medfield, 54 Mass. App. Ct. 831 , 837 (2002). Krafchuk goes on to hold that proving that a board has committed reversible error is no easy feat:

The board's determination whether a particular waiver is in "the public interest" involves a large measure of discretion, and if "reasonable minds might in good faith differ, without doubting the reasonableness of the opposing view, the conclusion reached by the planning board should be sustained on judicial review. For it is the board, not the court, to whom the statute delegates the discretion, and the role of the court is merely to ascertain whether the board exceeded its authority.

Krafchuk, 453 Mass. at 529 (citations omitted), quoting Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 809 (1981). (While Krafchuk uses the phrase "the board's determination," Krafchuk is clear that a board needn't make explicit findings when waiving its own subdivision regulations. See Krafchuk, 453 Mass. at 529.) In Krafchuk, the trial court upheld a planning board's waivers, with conditions, of two subdivision requirements. Based on the facts presented at trial, the trial court reasoned that each waiver, as conditioned by the board, would "provide substantially the same level of safety and convenience to the public as would strict adherence to the board's own rules and regulations," and thus the board acted within its discretion in finding that the waivers were in the public interest. Id. at 531-532.

Krafchuk suggests that in considering the other requirement for a valid waiver, that the waiver is "not inconsistent" with the intent and purpose of the Subdivision Control Law, a reviewing court needn't show any deference to the board. See Krafchuk, 453 Mass. at 529 (emphasis added; "the court determines whether there is a substantial derogation from the intent and purpose of the subdivision control law"). Krafchuk cites just one case, Wheatley v. Planning Bd. of Hingham, 7 Mass. App. Ct. 435 (1979), as an example of when a waiver is inconsistent with the purpose of the Subdivision Control Law. In Wheatley, the board waived a regulation requiring subdivision plans to show municipal services such as water pipes, fire hydrants, telephone lines, fire alarm cables and boxes, and street lights. The Appeals Court held the waiver was inconsistent with the intent and purpose of the Subdivision Control Law because it would leave the resulting lots without basic utilities and municipal services, all of which the Subdivision Control Law requires. See id. at 441-444. Thus, while it's up to the court to determine whether "substantial derogation" has occurred, when Krafchuk talks of "substantial" derogation, it means "substantial."

But in order to challenge any waiver of the Regulations, the Conways first must have standing to appeal. General Laws c. 41, § 81BB provides such a right to any person "aggrieved" by a decision of a planning board concerning a plan for subdivision of land. "Because the Zoning Act, G.L. c. 40A, and the subdivision control law, G.L. c. 41, §§ 81K–81GG, share the similar purpose of regulating the use of land to ensure the safety, convenience, and welfare of the inhabitants of municipalities . . . we are guided in our determination of the meaning of 'person aggrieved' in the context of the subdivision control law by our case law involving zoning, i.e., appeals pursuant to G.L. c. 40A, § 17." Krafchuk, 453 Mass. at 522; see also Rattner v. Planning Bd. of W. Tisbury, 45 Mass. App. Ct. 8 , 10 (1998).

A "person aggrieved" is one who "suffers some infringement of his legal rights." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Of particular importance, the right or interest asserted by a plaintiff claiming aggrievement must be one that the applicable law is intended to protect, either explicitly or implicitly. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011). Abutters enjoy a rebuttable presumption that they are persons aggrieved. See Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006). But defendants have the opportunity to rebut the abutter's presumption of standing by "challeng[ing] the plaintiff's standing and offer[ing] evidence to support the challenge." Id. As Krafchuk notes, there are two ways that an abutter's opponent may overcome the abutter's presumption of standing. One is to show that the abutter's interests are not among those that the Subdivision Control Law or the municipality's subdivision rules and regulations protect. See Krafchuk, 453 Mass. at 522-523. The second way to overcome an abutter's presumed standing is to challenge, with evidence, the abutter's claims of injury. Id. When the opposing party rebuts the abutter's presumption of standing, "the burden rests with the plaintiff to prove standing, which requires that the plaintiff 'establish – by direct facts and not by speculative personal opinion—that his injury is special and different from the concerns of the rest of the community.'" Id., quoting Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129 , 130-132 (1992).

Finneral and Guthrie defeat the Conways' standing using a combination of these methods. Yes, as abutters to 64 Main Street, the Conways enjoy a rebuttable presumption that they are persons aggrieved. See Krafchuk, 453 Mass. at 522. At trial they identified six harms. Three – those relating to construction noise, construction traffic, and construction dust – are not among those the Subdivision Control or the Westford Regulations protect. See 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 702 (2012) ("An abutter can have no reasonable expectation of proving a legally cognizable injury where the Zoning Act and related zoning ordinances . . . do not offer protection from the alleged harm in the first instance.) While the Regulations include a "miscellaneous" limitation on residential and commercial construction between the hours of 7:00 p.m. and 7:00 a.m., see Regulations, § 218-12(F)(6), the Regulations don't otherwise restrict noise, traffic or dust associated with construction.

That leaves the Conways with three other harms: general noise, traffic, and safety in the ROW. Those harms are within the ambit of interests the Subdivision Control Law protects. See c. 41, § 81M; see also Regulations, § 218-2. But as to these harms, Guthrie and Finneral called five witnesses that rebutted the Conways' presumption of injury: Westford's Town Engineer, Westford's Town Planner, a transportation consultant, an acoustical engineer, and a project engineer. Their combined testimony deprived the Conways of the benefit of the presumption, see Standerwick, 447 Mass. at 33, and put them in the hot seat to offer evidence of aggrievement. Persons in that position "must put forth credible evidence to substantiate claims of injury to their legal rights." Rattner, 45 Mass. App. Ct. at 20, quoting Marashlian, 421 Mass. at 723. See also Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211-212 (2003) (plaintiff must provide direct evidence, and not "unsubstantiated claims or speculative personal opinions," of his or her claims of harm); Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 411 & n.13 (2005) ("Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action.").

Mr. Conway testified that he will suffer from construction-related noise, dust, and traffic were Lot 2 developed, but the Conways provided no evidence of aggrievement from post-development noise or traffic. The Conways also didn't provide any testimony, expert or lay, contrary to the expert testimony offered by Guthrie and Finneral that the Conways won't suffer from noise, traffic or safety issues post-construction. The Court thus holds that because the Conways failed to produce qualitative, quantitative, or any proof of injury resulting from increased noise, traffic, or unsafe use of the ROW, after the construction of Lot 2, they lack standing to appeal the Board's decision.

Even if the Conways had established their standing (they didn't), the Court rejects their claims that the Applicant and Cul-de-Sac Waivers were improper. With respect to the Applicant Waiver, Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104 , 108-109 (1991), quoting Meyer v. Planning Bd. of Westport, 29 Mass. App. Ct. 167 , 170 (1990) (internal citations omitted), holds that municipalities may adopt "property-owner consent" regulations for the following purposes:

Chief among the policy concerns underlying the enactment of the Subdivision Control Law was to ensure the provision of "adequate drainage, sewerage, and water facilities, without harmful effect to adjoining land and to the lots in the subdivision." One of the ways in which this objective is achieved by local planning boards is to secure a covenant from the "owner of record" which provides for the installation of adequate municipal services. If the owners of record are not fully identified or if the planning board has been misled as to the record owners, the public would not be protected because the board would be unable to ensure that it would receive a properly executed covenant, or in the event of a modification or amendment of a plan approval, a properly executed consent.

It's clear that requiring the Conways to sign Guthrie and Finneral's application isn't needed to achieve Batchelder's objectives. It's undisputed that, while the Conways own the fee in ROW, Mr. Finneral has an easement over the ROW for access and the provision of utilities to 64 Main Street. Finneral thus is entitled to make in the ROW all of the improvements the Board has required as a condition of approving his subdivision, as the Board found. See also Silva v. Planning Bd. of Somerset, 34 Mass. App. Ct. 339 , 342 (1993). The Applicant Waiver thus meets Krafchuk's public-interest test, as even with the Applicant Waiver, the Remand Decision ensures "substantially the same level of safety and convenience to the public as would strict adherence to the board's own rules and regulations." Krafchuk, 453 Mass. at 531-532. And since the Remand Decision insures that necessary infrastructure will be built, notwithstanding the Applicant Waiver, that waiver thus does not substantially derogate from the intent and purpose of the Subdivision Control Law or the Regulations.

The same holds true for the Cul-de-sac Waiver. The purpose of regulations like the Westford's cul-de-sac requirement is to ensure a proper turnaround for emergency vehicles. See Federline v. Planning Bd. of Beverly, 33 Mass. App. Ct. 65 , 68 (1992), quoting Wheatley, 7 Mass. App. Ct. at 451 (cul-de-sac regulations "'are enacted because of a concern that the blocking of a dead-end street, as by a fallen tree or an automobile accident, will prevent access to the homes beyond the blockage particularly by fire engines, ambulances, and other emergency equipment'"). Two facts establish that the Cul-de-sac Waiver was in the public interest. First, Lt. Donald R. Parsons, the Westford Fire Prevention Officer, reviewed the revised plans for the subdivision dated July 27, 2016, and advised that the "turnaround" depicted on the plan would be satisfactory to the Westford Fire Department. Second, the Town Engineer concurred with Lt. Parsons's assessment. The Conways offered no contrary evidence at trial, and the Court rejects their suggestion that the Fire Department or the Town Engineer reviewed the wrong plans (or incorrectly interpreted the right plans). The Fire and Engineering concurrences indicate that the approved road design provides "substantially the same level of safety and convenience to the public as would strict adherence to the board's own rules and regulations." Krafchuk, 453 Mass. at 531-532. The concurrences also prove that the Cul-de-sac Waiver does not substantially derogate from the intent and purpose of the Subdivision Control Law or Westford's Regulations.

Judgment to enter accordingly.