By virtue of the instant action initiated pursuant to G.L. c. 41, § 81BB, Michael S. Rosa and Claire Moore-Rosa (plaintiffs / Rosas) appeal from a decision (Decision) of the Billerica Planning Board (defendant/ Planning Board) denying their application for approval of a so-called B-2 definitive subdivision plan (B-2 plan) regarding their property at 47 Sheldon Street, Billerica, Massachusetts (property / locus). The plaintiffs argue that the Boards Decision was erroneous, arbitrary and capricious. They request, therefore, that the court either annul the Decision and approve the subdivision application, or, in the alternative, remand the matter to the Board with appropriate instructions. For its part, the defendant denies that its Decision was arbitrary or capricious and asserts that the plaintiffs were not entitled to the subdivision approval inasmuch as the B-2 application, as filed, did not satisfy the Boards Subdivision Rules and Regulations.
For the reasons that follow, this court concludes after trial, that the Board was without authority to render the Decision that it did, that the said Decision was legally untenable and that the plaintiffs have otherwise demonstrated that the Decision ought to be annulled.
A one-day trial was held at which a stenographer was sworn to take the evidence of Milton Kinney, Stephen Lentine, Michael Rosa, Peter Blaisdell, and Peter Kennedy. The fourteen exhibits admitted into evidence are incorporated by reference for purposes of appeal. Proposed finding of fact and law were submitted, and are incorporated to the extent that they are consistent with this decision.
On all the credible testimony, exhibits, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, and arguments of the parties, I find as follows:
(1) Plaintiffs Michael S. Rosa and Claire Moore-Rosa are husband and wife residing at 29 Riverdale Road, Billerica, Massachusetts, [Note 1] and are the owners of the property at 47 Sheldon Street, Billerica, Massachusetts. [Note 2]
(2) The locus is situated in the Rural Residential Zoning District (District). [Note 3] Pursuant to § 7(k), Dimensional Regulations, of the Billerica Zoning Bylaw ( Bylaw ), a parcel in the said District requires 50,000 square feet of area and a minimum of 200 feet of frontage. [Note 4] The locus contains approximately 101,000 square feet of area and has 200 feet of frontage on Sheldon Street. [Note 5] There is currently a single-family dwelling on the property. [Note 6]
(3) The locus includes a wetlands region in the northeast corner of the property. [Note 7] The wetlands flow offsite to a neighboring property. [Note 8]
(4) On April 2, 2008, the plaintiffs were granted a Variance by the Zoning Board of Appeals (Zoning Board). The said Variance provided relief from a number of Bylaw provisions, to wit: §§ 7.B.4 (Lot Split), [Note 9] 7.B.7 (Lot Shapes), [Note 10] 7.B.8 (Lot Frontage), [Note 11] 7.C.1 (Lot Access), [Note 12] and 7.K (Dimensional Table). [Note 13] The intent underlying the grant of the sweeping Variances was to allow the petitioners to divide their land into two buildable single family lots and to otherwise make the lots conforming in all respects under Section 7 of the Zoning By-law in a Rural Residence Zone. [Note 14] No appeal was taken therefrom. [Note 15]
(5) The Plaintiffs propose to divide the locus into two lots, with Lot A located in front (north) of Lot B. [Note 16] They propose to move the existing residence to Lot B, and to construct a new dwelling on Lot A. [Note 17] The resultant Lots would have irregular, non-rectangular shapes, with each having [Note 18] 100 feet of frontage on Sheldon Street and over 50,000 square feet of area. [Note 19]
(6) There are 38 lots on Sheldon Street. [Note 20] Of these, many have less than the required 200 feet of frontage, [Note 21] while their shapes and sizes are varied. [Note 22] Peter Kennedy, the Director of Planning for Billerica since 1986 [Note 23] testified as follows regarding the other lots on Sheldon Street:
Q: But you would agree that the that from looking at Sheldon Street that there are a variety of shapes and sizes of lots along Sheldon Street?
A: Yeah, along yeah.
Q: And you would agree that not all of them have 200 feet of frontage, do they?
Q: You would agree that they dont, or no, you dont agree?
A: I agree that they dont. [Note 24]
(7) Access to Lots A and B would be by means of a common driveway along the western side of Lot B. [Note 25] Common driveways are not prohibited by regulation or otherwise, in the Town of Billerica. [Note 26]
(8) On August 20, 2008, the plaintiffs submitted a Form B-2 Application for Approval of a [Subdivision] Plan (Application) to the Planning Board seeking to subdivide the locus into two lots. [Note 27]
(9) The Application included the following: a definitive subdivision plan entitled Subdivision Plan of Land Sheldon Street in Billerica, Massachusetts prepared and stamped by BSC Group Professional Land Surveyors; the deed to the locus; the April 2, 2008 decision of the Zoning Board; a certification from the Town Clerk regarding the status of Sheldon Street; a certified abutters list; an aerial photograph of the locus; a signed Planning Board procedures form; the B-2 checklist; a newspaper publication authorization; and a $350 check payable to the Town of Billerica to cover the filing fee. [Note 28]
(10) The B-2 process is intended as a streamlined procedure [Note 29] that allows for the subdivision of properties without formal requests for waivers. [Note 30] The process is not expressly authorized by the Zoning Bylaw nor is it set out in the Subdivision Rules and Regulations (Rules and Regulations). [Note 31] The B-2 process was initiated in 1997 or 1998 to allow the town to address so-called minor subdivisions. [Note 32] The Rules and Regulations apply to such minor subdivisions. [Note 33]
(11) In the ten years prior to the plaintiffs application, thirteen B-2 subdivision applications were submitted to the Planning Board. [Note 34] None was denied. [Note 35]
(12) Pursuant to the B-2 process, the application must be consistent with the B-2 checklist. [Note 36] The plaintiffs complied with the checklist requirements in submitting their B-2 application. [Note 37]
(13) The checklist does not require drainage calculations, a wetlands delineation or storm water management calculations. [Note 38] Wetlands issues lie within the province of the Conservation Commission. Stephen Lentine, the attorney who prepared the B-2 application for the Rosas, [Note 39] testified in pertinent part, as follows:
Q: Now, does the B-2 process approve a wetlands line?
A: The process, no, not to my knowledge.
Q: Who approves the wetland lines?
A: That would be the conservation commission. [Note 40]
(14) Wetlands concerns are typically addressed after an applicant has received the requisite permits from the appropriate municipal boards, but before applying for a building permit. [Note 41]
(15) The following exchange took place on the redirect examination of Michael Rosa:
Q: Counsel asked you whether or not you had filed with the conservation commission for the wetland delineation. Can you tell me why you did not file with the conservation commission?
A: I did not because the planning board asked for the wetland delineation line while we were going through the process, and you apply to the conservation commission last after all the other permits are applied for, and we werent at that junction yet. [Note 42]
(16) The Board of Health acts as a consultant to the Planning Board in matters of water supply, sewage disposal and surface water drainage. [Note 43] By letter dated August 27, 2008, the Billerica Board of Health recommended approval of the plaintiffs subdivision application. [Note 44]
(17) At the request of the Planning Board, the plaintiffs hired a civil engineering firm to address concerns raised at a public meeting regarding drainage and wetlands location. [Note 45]
(18) Peter Blaisdell (Blaisdell), a professional engineer who at the time worked for Hayes Engineering, the firm retained by the Rosas to assess the property, testified on the plaintiffs behalf. [Note 46] He stated that after visiting the site and performing a simple drainage calculation, [Note 47] it was his opinion that the plan would conform to the Zoning Bylaw with regard to drainage; [Note 48] that is to say, the post-construction runoff would not be in excess of the pre-construction runoff. [Note 49]
(19) The Planning Board held multiple hearings on the plaintiffs application. [Note 50] Mr. Blaisdell testified at trial that he had informed the Board that there would be no drainage issues [Note 51] and that all bylaws and regulations would be followed:
I believe I told the planning board that we could comply with the towns bylaw by those recommendations that I made earlier, that wed remove impervious area, wed put the new structure into dry wells and make a crushed stone driveway, and there would be no increase, and that we would meet the towns bylaw. [Note 52]
When asked if contradictory evidence regarding drainage was presented at the hearings (You say that you didnt see any info at the hearing regarding any drainage calculations from anybody else; is that correct?), Blaisdell responded:
nobody on the planning board submitted any evidence that would suggest there was any drainage calculations that would lead me to believe that what I came up with for a conclusion was wrong. [Note 53]
(20) Moreover, Peter Kennedy, the Towns Director of Planning testified that the Planning Board had no evidence regarding drainage that controverted Mr. Blaisdells assessment.
[T]he planning board didnt have any technical advice saying that the drainage calcs show that its going to be a problem if you put two foundations in there. [Note 54]
(21) The Planning Board on January 12, 2009 voted to deny Plaintiffs application for approval of a subdivision plan. [Note 55] In their decision, the Board found:
1. The plan does not satisfy the requirements of Section 6.K of the Rules and Regulations Governing the Subdivision of land in Billerica, Massachusetts because the lots do not have the 200 feet of frontage required in the Rural Residential District. In addition Lot A does not have access through the lot frontage shown on the plan and limited by flagged wetlands.
2. Reduction of lot frontages and the configuration of the parcels create lots which are incompatible with the nearby residential development pattern. There are neither flag type lots nor pork chop lots in the immediate area. Permitting an additional lot will detract from the rural character of the neighborhood.
3. The wetland delineation supplied by the applicant was not approved by the Conservation Commission making it difficult for the board to evaluate the accuracy of the flagging.
4. Locating two new foundations on this parcel will act to exacerbate the existing water related problems already evident on the site and on the adjacent properties.
5. Access to the parcels will be via a common driveway. Lot access should be over the lot frontage. Access is not expressed as a dimension and is therefore not subject to variance.
Plaintiffs argue that the Planning Board arbitrarily and capriciously and in error denied their B-2 application for approval of a subdivision, and in doing so exceeded their authority. They appeal the Boards decision under G.L. c. 41, § 81BB, which provides in relevant part that [t]he court shall hear all pertinent evidence and determine the facts, and upon the facts so determined, shall annul such decision if found to exceed the authority of such board, or make such other decree as justice and equity may require.
In reviewing appeals brought pursuant to G. L. c. 41, § 81BB, the judge is to hear the matter de novo, make independent findings of fact and, on the facts so found, determine whether the plan before the board conforms to its reasonable rules and regulations. Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 478 (1955). A planning board's decision . . . will be upheld unless premised upon a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. Musto v. Planning Bd. of Medfield, 54 Mass. App. Ct. 831 , 837 (2002), quoting Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001). The applicant has the burden of proving that the planning board has exceeded its authority in disapproving the plan. Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). While a trial judge may not substitute his judgment for that of the planning board, see Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 21 (1977), the Board's decision will not be upheld where it has acted outside of its authority under the Subdivision Control Law.
The Subdivision Control Law sets out the responsibilities and authority of the municipal planning board. [Note 56] Chapter 41, § 81M of the General Laws provides that [t]he subdivision control law has been enacted for the purpose of protecting the safety, convenience and welfare of the inhabitants of the cities and towns . . . by regulating the laying out and construction of ways in subdivisions providing access to the several lots therein, but which have not become public ways, and ensuring sanitary conditions in subdivisions . ...
It has been emphasized repeatedly that a principal purpose of the Subdivision Control Law is to ensure efficient vehicular access to each lot in a subdivision, for safety, convenience, and welfare depend critically on said access. See Costanza & Bertolino, Inc. v. Planning Bd. of N. Reading, 360 Mass. 677 , 679-680 (1971); Stoneham v. Savelo, 341 Mass. 456 , 458 (1960); Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass. 149 , 153 (1959) (reviewing the legislative history).
The purpose of the Subdivision Control Law is distinct from the purpose of a Zoning Bylaw enacted pursuant to G.L. c. 40A. The purpose of the latter is to control land use by dictating what a landowner shall not do, rather than to ensure safe access by dictating what a landowner shall do. See Meyer v. Planning Bd. of Westport, 29 Mass. App. Ct. 167 , 171 (1990) (It is useful in this connection to bear in mind the distinction between zoning, which limits the use of land, and subdivision control, which does not dictate in the same direct fashion how land will be used but, rather, compels the construction of ways which, among other things, are safe and convenient for travel and make provision for utilities. Subdivision control also has as a major purpose ensuring that the subdivision provides adequate drainage, sewerage, and water facilities, without harmful effect to adjoining land and to the lots in the subdivision.).
The Planning Boards rules and regulations may not include zoning regulations. Except in so far as it may require compliance with the requirements of existing zoning ordinances or by-laws, no rule or regulation shall relate to the size, shape, width, frontage or use of lots within a subdivision, or to the buildings which may be constructed thereon, or shall be inconsistent with the regulations and requirements of any other municipal board acting within its jurisdiction. G.L. c. 41, § 81Q.
The purpose, and the jurisdiction, of zoning and planning within a municipality are separate and distinct. Decisions made in each department are based upon different criteria and should not be conflated. See, e.g., Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 807-808 (1981) (waiver of frontage requirements by a planning board under G. L. c. 41, § 81R, does not eliminate requirement for a variance from the board of appeals).
It is the intent of the subdivision control law that any subdivision plan filed with the planning board shall receive the approval of such board if said plan conforms to the recommendation of the board of health and to the reasonable rules and regulations of the planning board pertaining to subdivisions of land. Id. The rules and regulations are the standard against which subdivision approval applications are to be judged. A planning board exceeds its authority if requirements are imposed beyond those established by the rules and regulations. Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 696 (1996). A planning board's subdivision rules and regulations thus define the standards that owners must meet . . . as well as the grounds upon which a planning board may disapprove a plan. Id.
A municipalitys rules and regulations must be comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required of them and what standards and procedures will be applied to them. Castle Estates, Inc. v. Park and Planning Bd. of Medfield, 344 Mass. 329 , 334 (1962). A planning board may not reject a subdivision plan, absent a specific provision in its duly enacted rules and regulations, based solely on the anticipated impact of the subdivision upon surrounding areas. See Massachusetts Broken Stone Co. v. Planning Bd. of Weston, 45 Mass. App. Ct. 738 , 742 (1998) ("Where a subdivision's impact on water quality was not a matter for consideration under the rules and regulations of the planning board, such impact could not provide the basis for disapproval of the plan"); Mac-Rich Realty Const., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 84-85 (1976) (A plan may not be disapproved merely because the board feels general public considerations make such action desirable. (quoting Pieper v. Planning Bd. of Southborough, 340 Mass. 157 , 163-64 (1959))).
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 or the recommendations of the health board or officer. G.L. c. 41, § 81U. The courts review of the Boards decision must be confined to the specifically stated reasons for denial of the subdivision plan. Daley Constr. Co. Inc. v. Planning Bd. of Randolph, 340 Mass. 149 , 152 (1959).
Bases for the Planning Boards Decision
In the case at bar, this court will address seriatim, the five enumerated bases for denial set out in the Planning Boards Decision. They are as follows:
I. The plan does not satisfy the requirements of Section 6.K of the Rules and Regulations Governing the Subdivision of land in Billerica, Massachusetts because the lots do not have the 200 feet of frontage required in the Rural Residential District. In addition Lot A does not have access through the lot frontage shown on the plan and is limited by flagged wetlands.
The Planning Boards first reason for denial of Plaintiffs B-2 Subdivision Application is legally untenable. Section 6.K of the Rules and Regulations, provides that [a]ll lots created by the subdivision shall meet the dimensional requirements of the Billerica Zoning by Laws [sic] pursuant to MGLC 41 Section 81Q. Defendant would have the court construe this provision so as to require strict adherence to the wording of the Bylaw. The fact that the Zoning Board has granted a comprehensive Variance effectively amending the Bylaw in its application to the locus, is of no moment to the defendant. This court is not persuaded by this argument.
The Planning Boards Subdivision Rules and Regulations are subject to the ordinary principles of statutory construction. See Framingham Clinic Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981). The analysis is the familiar one: [a]s always when the meaning of a statutory provision is at issue, the initial inquiry focuses on the actual language of that provision. Where the language is clear and unambiguous, it is conclusive as to legislative intent, and the courts is to enforce the language according to its plain wording. which we are constrained to follow so long as its application would not lead to an absurd result. When a statute speaks with clarity to an issue, judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished. We need not look beyond the words of the statute itself in such a case, even if we recognize a potential unfairness within a statute's clear language or that a statute creates a potential anomaly. Martha 's Vineyard Land Bank Comm'n v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004) (internal citations and quotations omitted). The language of the statute or regulation is the principal source of insight into legislative intent. Where the words are plain and unambiguous in their meaning, we view them as conclusive as to legislative intent. Water Dept. of Fairhaven v. Dept. of Environmental Protection, 455 Mass. 740 , 744-745 (2010). That fact that a regulation draws lines makes no difference to the analysis. So long as those lines have been rationally drawn and do not lead to an absurd result, they must be followed. Martha's Vineyard Land Bank Comm'n v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 28 (2004).
On its face, the language of § 6.K would appear to be clear and unambiguous. One might argue, however, that a literal construction would lead to an absurd result. The Rules and Regulations mandate compliance with the dimensional provisions of the Zoning Bylaw when submitting a definitive subdivision plan. No mention is made of a variance (or special permit). [Note 57] However, the Zoning Bylaw explicitly provides for the granting of variances where [o]wing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of this Zoning By-law would involve substantial hardship, financial or otherwise, to the petitioner. § 14.D.1.a. While the Planning Board may require compliance with the Zoning Bylaw, their Rules and Regulations shall not be inconsistent with the regulations and requirements of any other municipal board acting within its jurisdiction. G.L. c. 41, § 81Q. It is presumed that the Zoning Board granted a variance based upon the relevant statutory and regulatory standards. Such action which was not appealed, lies clearly within that [Zoning] Boards jurisdiction. This court concludes, therefore, that the Planning Boards Rules and Regulations are to be read in a manner consistent with the Zoning Bylaw as varied by the Zoning Board. Where, as here, a Zoning Board has granted a variance from frontage and frontage-access requirements, the Planning Board may not require different, inconsistent zoning criteria in a subdivision plan, particularly where the Planning Board attempts to impose stricter constraints than those imposed on the property under the Zoning Bylaw. [Note 58]
Further, the Billerica Zoning Board granted variances to the plaintiffs specifically to allow the petitioners to divide their land into two buildable single family lots and to otherwise make the lots conforming in all respects in the Rural Residential Zone. [Note 59] As the clear intention of the Zoning Board in granting the variance was to bring the plaintiffs proposed lots into conformance with the Bylaw, this court construes the phrase meet[ing] the dimensional requirements of the Zoning Bylaw, as an allusion to dimensional requirements as varied by the Zoning Board.
In sum, the plaintiffs B-2 subdivision plan met the requirements of § 6.K of the Subdivision Rules and Regulations inasmuch as it complied with the Zoning Bylaw as varied by the Zoning Board. [Note 60]
Were the defendants argument in this regard to prevail, a situation could arise in which a Zoning Board decision could be effectively ignored or reversed by the Planning Board. This would indeed constitute an absurd result. A planning board does not have a roving commission. The only purposes recognized [by § 81M] are to provide suitable ways for access furnished with appropriate municipal utilities, and to secure sanitary conditions. Collings v. Planning Board of Stow, 79 Mass. App. Ct. 447 , 454 (2011), quoting Sealund Sisters, Inc. v . Planning Bd. of Weymouth, 50 Mass. App. Ct. 346 , 351 (2000).
The legislative history of the current subdivision control law, enacted in 1953, makes clear that revisions to the prior law were necessary in part to ensure that the application of the law is limited to regulating the design and construction of ways in subdivisions, and to address the problem of some well-intentioned but overzealous planning boards using their power of approving or disapproving plans of proposed subdivisions to enforce conditions doubtless intended for the good of the public, but not relating to the design and construction of ways within subdivisions. BOBROWSKI, MASSACHUSETTS LAND USE AND PLANNING LAW, § 14.01 (2d ed. 2002). This is such a case. The Planning Boards determination exceeds its authority under the Subdivision Control Law. The first reason given by the Board constitutes a legally untenable basis for the denial of the subdivision application.
II. Reduction of lot frontages and the configuration of the parcels create lots which are incompatible with the nearby residential development pattern. There are neither flag type lots nor pork chop lots in the immediate area, Permitting an additional lot will detract from the rural character of the neighborhood.
The second reason given for the Planning Boards denial is unsupported on the record by relevant provisions of the Subdivision Rules and Regulations. The Planning Board fails to set out in detail those Rules and Regulations with which the proposed plan purportedly fails to conform. Consequently, the court finds that this stated reason for denial is unreasonable, arbitrary and capricious.
Section 7.B.7 of the Zoning Bylaw requires that all lots shall be so far as possible rectangular and symmetrical. Consequently, under § 6 K of the Subdivision Rules and Regulations, noncompliance with the Bylaw could, under appropriate circumstances, constitute grounds for denial of the subdivision application. However, as noted supra, the plaintiffs sought and were granted a comprehensive variance which included § 7.B.7 of the Zoning Bylaw. This court is satisfied therefore, that the subdivision plan as submitted does, for all intents and purposes, comply with the dimensional requirements of the Bylaw, and by extension, with § 6.K of the Subdivision Rules and Regulations. This stated reason for denial is, therefore, legally untenable.
Further, the Planning Boards determination that [p]ermitting an additional lot will detract for the rural character of the neighborhood [Note 61] constitutes an arbitrary and capricious basis upon which to deny the plaintiffs application. A planning board's subdivision rules and regulations . . . define . . . the grounds upon which a planning board may disapprove a plan. 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. Id. There is no reference in the Rules and Regulations to character of the neighborhood as a standard to be met by a subdivision applicant. The Planning Board exceeded its authority in denying the plaintiffs application on that basis.
Moreover, credible testimony was adduced at trial to the effect that a number of lots on Sheldon Street are of irregular shape or size. Even if the Planning Board were entitled to deny the plaintiffs application based upon the character of the neighborhood, there is no evidence to support a finding that subdividing the plaintiffs parcel into two lots would derogate from the character of the neighborhood. This is especially the case as the two resulting lots will meet the size requirements for the Rural Residential Zoning District. Therefore, the second basis for denial, at a minimum, exceeded the authority of the Planning Board.
III. The wetland delineation supplied by the applicant was not approved by the Conservation Commission making it difficult for the Board to evaluate the accuracy of the plaintiffs flagging.
As noted supra, a Planning Board may not predicate its denial upon a standard or criterion which is not clearly defined in the Rules and Regulations. See Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 696 (1996); cf. Fafard v. Conservation Commn of Reading, 41 Mass. App. Ct. 565 , 572 (1996) (The commission failed to state a legally tenable ground for its denial of the property owner's proposal. The criteria it applied were devised for the occasion, rather than of uniform applicability. Thus flawed, the commission's decision was arbitrary.). The Billerica Planning Boards Rules and Regulations do not require that a wetlands delineation be submitted as part of the B-2 Subdivision Application, let alone one approved by the Conservation Commission. Plaintiffs submitted a wetlands delineation in response to a request of the Planning Board during a hearing. Rather than constituting a formal element of the application, the wetlands delineation was intended to assist the Board members in their decision-making process. The Rules and Regulations do not require such documentation, and the uncontroverted evidence demonstrates that review by the Conservation Commission is a distinct but subsequent process. To the extent that the Rules and Regulations do not require documentation that the Conservation Commission has approved the wetlands delineation, a denial on such a basis is inappropriate.
IV. Locating two new foundations on this parcel will act to exacerbate the existing water related problems already evident on the site and on the adjacent properties.
The Planning Board concluded that locating two new foundations on the locus will exacerbate existing drainage related problems already evident on the site and on the adjacent properties.
The Board exceeded its authority to the extent it predicated its denial upon this concern. in basing its denial, at least in part, upon such reason. As previously observed, [i]t is the intent of the subdivision control law that any subdivision plan filed with the planning board shall receive the approval of such board if said plan conforms to the recommendation of the board of health and to the reasonable rules and regulations of the planning board pertaining to subdivisions of land. The Board of Health oversees and assesses drainage issues with regard to a subdivision plan, and must recommend approval prior to the Planning Boards decision on a plan. The Billerica Board of Health recommended that the plaintiffs subdivision application, be approved. The Planning Board had that recommendation before it, at the time it rendered its decision. The only basis upon which the Planning Board could properly deny the application based upon drainage concerns would be if evidence were proffered sufficient to demonstrate that the plan did not conform to the drainage requirements of the Rules and Regulations.
In the matter at hand, the uncontroverted testimony indicates that there was no evidence before the Planning Board at the time of its decision to support the contention that the subdivision plan does not conform to the Rules and Regulations regarding drainage. Peter Blaisdell, on behalf of the plaintiffs, presented credible testimony in this regard. He offered his professional opinion to the Board that the subdivision plan would conform to the requirements found in both the Rules and Regulations and the Zoning Bylaw alike, i.e. that post-construction runoff would not exceed pre-construction runoff.
Peter Kennedy, on behalf of the defendant, testified that the Planning Board had no information before it to demonstrate that locating two foundations on the property would exacerbate drainage issues. Given (a) the lack of relevant evidence before the Board, as well as (b) the recommendation by the Board of Health that the plan be approved, this court is satisfied that the Planning Board exceeded its authority in determining that the proposal failed to conform to the Rules and Regulations with regard to drainage.
V. Access to the parcels will be via a common driveway. Lot access should be over the lot frontage. Access is not expressed as a dimension and is therefore not subject to variance.
The Planning Board concluded that access to the parcels would be by means of a common driveway; that lot access should be over the lot frontage, and that access is not expressed as a dimension and is therefore not subject to variance. In its Decision, the Planning Board took no issue with the mode of access other than to state that such access should be over the lot frontage. The Board took no issue with the adequacy of the access, with safety factors such as line of site, or otherwise. This court views that omission as both purposeful and significant, concluding that if there were, for example, critical issues of access or safety, the Board would have relied upon same in rendering its Decision.
Rather, as previously noted, the Board concluded without citing to its own Rules and Regulations that lot access should be over the lot frontage. In so doing, the Board was likely citing to Section 7.C.1 of the Zoning Bylaw which provides that [a]ccess to a lot must be over the legal frontage. As has been observed, however, the Zoning Board granted the plaintiffs a variance from this requirement. In so doing, it approved the use of a common driveway for access purposes. For its part, the Planning Board failed to raise in any meaningful or significant fashion, the nature or quality of that access. The Boards denial of the plaintiffs application in reliance upon s. 6.K in this instance, is therefore legally untenable.
While the defendant argues that the Boards denial was based upon concerns regarding safe access to the lots via the common driveway, that position gains no support from the plain language of the decision itself. There is nothing in the findings set out in the decision that can be read to indicate concern regarding the access of the lots by fire and safety vehicles and personnel. [Note 62] Although the denial does make reference to a common driveway, no legitimate concerns are raised. There is merely a statement as to the existence of the driveway.
Neither the Rules and Regulations nor the Zoning Bylaw speak to the issue of common driveways, [Note 63] and absent a provision in the Rules and Regulations stating that common driveways are somehow disfavored, the Planning Board may not sustain a denial on such a basis. See Fieldstone Meadows Devel. Corp. v. Conservation Commn of Andover, 62 Mass. App. Ct. 265 , 267-68 (2004) (stating that an unwritten policy that has not been adopted as a regulation cannot be the basis for a denial). Because the Board predicated its decision to deny plaintiffs subdivision application on an improper basis, their decision is deemed to have been arbitrary and capricious.
Predicated upon the foregoing, this court concludes that the decision of the Planning Board in denying the plaintiffs application for a B-2 definitive subdivision plan was legally untenable, unreasonable, arbitrary and capricious. The Decision of the Planning Board will therefore be annulled and the case remanded to the Board for approval of the B-2 subdivision proposal. [Note 64] [Note 65]
Judgment to enter accordingly.
[Note 1] Complaint ¶ 1.
[Note 2] Trial Transcript (Tr.) 49:11-12.
[Note 3] Joint Pre-Trial Memo. ¶ 5; Tr. 27:20.
[Note 4] Trial Exhibit (Ex.) 6, § 7(k).
[Note 5] Joint Pre-Trial Memo. § 7.
[Note 6] See Ex. 7.
[Note 7] See Tr. 58:17 to 59:18.
[Note 8] Tr. 60:2-7.
[Note 9] No lot shall be reduced in area, or changed in size or shape so that the location of a building or structure on the lot, or the lot itself, fails to comply with the dimensional or other provisions of this Zoning By-law. [Th]is prohibition shall not apply, however, when a portion of a lot is taken by eminent domain or conveyed for a public purpose.
[Note 10] All lots shall be so far as possible regular and symmetrical.
[Note 11] All buildable lots shall be able to encompass a circle that touches the frontage and has a diameter equal to 80% of the lots frontage requirement within the interior of the lot.
[Note 12] Access to a lot must be over the legal frontage.
[Note 13] Requiring 200 feet of frontage and 50,000 square feet of area in the Rural Residential Zoning District.
[Note 14] Ex. 3(3).
[Note 15] Complaint ¶ 20.
[Note 16] See Ex. 7.
[Note 17] See id.
[Note 18] See id.
[Note 19] See id.
[Note 20] Tr. 64:3.
[Note 21] Tr. 65:1-3 (Rosa) (stating that 34 of the 38 lots on Sheldon Street have frontage of less than 100 feet).
[Note 22] See Tr. 70:1-7 (Rosa) (stating that he looked at the assessors map because they [the Board] stated that there were no flag-type lots, pork-shop shaped lots, you know, in the area, I looked for irregular shaped lots and that he found several in the area.).
[Note 23] Tr. 126:1-2, 7.
[Note 24] Tr. 175:8-17.
[Note 25] See Ex. 7.
[Note 26] Ex. 9; see also Tr. 17:21 to 18:4 (Kinney) (Q: Does that mean that prior to your authoring of this memorandum that you that the town had been denying common driveways as access? A: In my twelve years, Ive never seen it approached by an applicant. Q: So, why did you put this in your memorandum then? A: Because its not in the zoning or the statutes as I referred to.); 11:13-14 (Common driveways are allowed. Theyre allowed with relief from the zoning board of appeals.).
[Note 27] Joint Pre-Trial Memo., §8; Ex. 3.
[Note 28] Ex. 3.
[Note 29] Tr. 23:6-18 (Lentine) (It is streamlined, number one. I mean, you dont even have [sic] option, I believe, to submit a preliminary plan for the B-2 process as opposed to the definitive process, you can choose your option, but most people do choose to submit a preliminary plan first to get feedback from the board. Im trying to think. It also some of the filing requirements are streamlined also. In Billerica, for a definitive subdivision plan, you have to have all abutters within 300 feet. In the B-2 process, they only require you to notify the immediate abutters, direct abutters to the property.).
[Note 30] See Tr. 22:10-22 (Lentine) (Q: Can you tell us what the difference is between a B-2 process and a conventional subdivision process? A: The B-2 procedure, as I understand it and as Ive practiced it, is a subdivision required with built in waivers. Its essentially when you bring a normal definitive subdivision plan, and you would put your specific request for waivers within that plan. If you wanted to go from two sidewalks to one sidewalk, you would put that in. The B-2 plan essentially is one where you just ask for all waivers that are implied by the plan thats submitted, and its more commonly used for development of multiple lots of an existing way, as opposed to developing a new way.); 133:2-12 (Kennedy) (If you read the [B-2] application, the beginning, it says if you require any variance waivers, that youre not actually enumerating those waivers, that its implied by your application that youre actually asking for those waivers. Well, if you submit a plan and the plan doesnt contain everything that a subdivision would contain, the implication is, is that youre asking for a waiver for those things that dont comply. But we dont ask them to list every one of those things because everyone of I mean, it would be a very, very long list.).
[Note 31] Tr. 25:22 to 26:3 (Lentine) (Q: Is the B-2 process found in the bylaw? A: Not to my knowledge. Q: And is it found anywhere in the subdivision rules and regulations? A: Not to my knowledge either.); see generally Exs. 5-6.
[Note 32] Tr. 130:16, 17-22; Tr. 131:5 to 132:7 (Kennedy) (As everyone knows, an ANR plan is a plan where its a very simple approval. They dont need actually it stands for approval not required, and thats if all the lots in the subdivision or on a plan showing frontage that show the minimum frontage. If it turns out that you have lots that youre creating on an existing street that they dont - each one of the lots does not have the frontage, then that cannot be an ANR plan. But its [a B-2 plan] very similar to an ANR plan because the road that youre dividing the lots on is not new. Youre not putting in a new road. So, theres this sort of, what I call a minor subdivision, which is the same if you think of a B-2 as a minor subdivision, because basically youre working it as a subdivision control approval because it doesnt qualify for ANR. But it doesnt represent a large subdivision where you are laying out the roads and putting in new roads, and creating lots off that new road. So, its sort of this situation where its an existing roadway. Youre dividing lots off that existing roadway, or somehow you dont qualify for an ANR, but youre not a full-fledge subdivision because youre not actually creating streets. So, its sort of like this minor, what I call a minor subdivision even though we call the form is called a B-2.).
[Note 33] See Tr. 132:8-11 (Kennedy) (Q: Ok. But it has to comply with the rules and regulations of the subdivision control in the town; is that correct? A: Yes, yes.).
[Note 34] See generally Tr. 66:0 to 68:18. Mr. Rosa testified as to the process he undertook to determine the number of B-2 applications filed, the number of subdivision B-2 applications within that number, and to further refine to B-2 applications where the subject property was zoned Rural Residential. The court finds his testimony credible. His testimony was supported by that of Peter Kennedy, the director of planning for the Town of Billerica. See Tr. 154:1 (Kennedy) (stating that Mr. Rosa would be able to correctly identify certain types of B-2 applications based on the material he received from the Town).
[Note 35] Tr. 68:16-18. Although Mr. Kennedy testified that there were two B-2 applications that were denied prior to Plaintiffs application, on cross-examination he admitted that neither was a typical B-2 application analogous to that filed by Plaintiffs. See Tr. 186:3-4 (Kennedy) (Q: So, its not a typical B-2 then, was it? A: No, not typical.); see generally Tr. 189-191; Ex. 12; Ex. 13.
[Note 36] See Tr. 32:11-12.
[Note 37] Tr. 154:9-17.
[Note 38] Tr. 34:9-24 (Lentine) (Q: Is there any requirement in that checklist for a submission for drainage calculations? A: Not to my knowledge. Q: Is there any requirement for the submission of a wetland designation? A: Not to my knowledge. A: In your experience with your other ten or so B-2s, did you ever submit a wetland delineation or with a B-2 application? A: . . . Not that I can recall. Q: How about with respect to submitting storm water calculations? A: Not that I can recall on a B-2.); see also Ex. 3(8).
[Note 39] Tr. 21:10-11; 21:17-20.
[Note 40] Tr. 36:3-6.
[Note 41] See Tr. 36:14 (Lentine) (Youd have to get the sign-off from the conservation commission and demonstrate to them that youre not constructing within areas subject to their jurisdictions, so youd have to be outside the 100 foot buffer.); 73:9-16 (Rosa) (Q: And when you submitted this [the plan showing the wetlands] to the planning board, had it been approved by the conservation commission at that time? A: No, because we didnt have all our permits in place. You have to do that after all the permits are in place. Q: So that that was not approved by the ConCom. A: At that time, no.).
[Note 42] Tr. 90:14-18.
[Note 43] Rules and Regulations § 5.H. See also Tr. 37:16-20 (Lentine) (There is within the [zoning] bylaws, theres a requirement that any new construction, the rate of runoff cannot exceed the rate pre-construction pre-development cannot exceed the rate post-development. But generally speaking, that is handled by the board of health.).
[Note 44] Ex. 3.
[Note 45] Tr. 58:2-6 (Rosa) (During one of the planning board meetings, they requested wetland delineation lines. So, because Hayes Engineering was the engineer, they had their botanists go out and delineate the wetland lines with flags to show where they would be.); 60:9-13.
[Note 46] Tr. 93:2, 7, 10-11; 94:1-2; 95:10-16.
[Note 47] Tr. 101:21 to 102:4 (Blaisdell) (Q: Now, in connections with this process, you didnt perform any drainage calculations then? A: No, I did not. Q: But you performed a drainage analysis? A: I performed a very simple analysis on the pipe to let me know if there was any difference in how it would perform from what was proposed, what was as built.)
[Note 48] Tr. 104:4-6. The Zoning Bylaw states surface runoff rates existing at predevelopment shall not be increased at post-development. Zoning Bylaw § 5.B.2. Furthermore, the Subdivision Rules and Regulations require that [s]urface runoff rates to existing and discrete off site areas for the pre-development existing condition shall not be increased for the post-development condition. Rules and Regulations § 6.B.4(b)(5). See also Tr. 119:1-11 (Blaisdell) (The standard would be that you cannot have any increase in the rate or volume of the runoff coming from one of those surfaces. So, you either have to mitigate it either with dry wells, a storm water management area that you see so often in the area with a detention basin, or you infiltrate. Those are the basic things that you can do, and thats what I recommended for doing here.).
[Note 49] See Tr. 105:23 to 106:10 (Blaisdell) (Q: And so, do you have an opinion as to whether it will exacerbate water related problems on the site and on adjacent property? A: There would be no exacerbation from keeping that house there, no. Q: What about handling the storm water from the new house? A: That would be handled with dry wells, and also offset by removing the existing impervious area thats there now thats already been contributing runoff. You take that away and replace it with either lawn or crushed stone area. It will have no impact at all.); 105:16-22 (stating that the impervious area will only change by one because one dwelling is already existing on the property. Its existing as an impervious area now.).
[Note 50] Tr. 35:3-4.
[Note 51] See Tr. 113:22 to 114:7 (Blaisdell) (Q: Do you recall, did you testify at the January 10th or 12th, 2009 public hearing regarding drainage in connection with this B-2 process? A: Yes. Q: And what did you testify to relative to your summary of your drainage analysis at that time? A: That my findings were that the reason that there was ponding on the lot that the Deerings [the neighbors] next door were complaining about, was actually a situation created by themselves.).
[Note 52] Tr. 115:2-7.
[Note 53] Tr. 109:15-22.
[Note 54] Tr. 178:22 to 179:1.
[Note 55] Ex. 2.
[Note 56] See G.L. c. 41, §§ 81K-81GG.
[Note 57] The Rules and Regulations do, however, address the proper role of a previously-granted variance in the context of an ANR application. § 3.A states a frontage variance does not satisfy the frontage requirements for ANR approval. This statement is consistent with a long line of cases holding the same. See, e.g. Seguin v. Planning Bd. of Upton, 33 Mass. App. Ct. 374 , 375 (1992). However, similar language is lacking from the Rules and Regulations regarding definitive subdivision applications, and this court finds that absence instructive.
[Note 58] The rule set out above is distinctly different from the rule regarding variances set by the Appeals Court in Seguin v. Planning Bd. of Upton, 33 Mass. App. Ct. 374 (1992), a case which is cited by both parties in their Post-Trial Briefs. However, the court notes that there are significant differences between the facts of this case and Seguin. In Seguin, the issue was whether a proposed subdivision met the frontage requirements in conjunction with an Approval Not Required (ANR) application where the Towns ZBA had previously granted a variance from the Zoning Bylaw frontage requirements. Id. The court agreed with the Upton Planning Boards decision denying ANR approval, and held that a variance from the ZBA with respect to frontage does not vary the frontage requirements for ANR approval. The court further reasoned that the proposed plan presented a subdivision of land and therefore the applicants needed to apply for subdivision approval. Id. at 375. The court also noted that, absent problems with access for vehicles and utilities, the Board would be acting unreasonably in denying the plan when presented for subdivision approval based upon the frontage requirement in light of the variance already granted by the ZBA. See id. at 376-77. It would be inappropriate to apply the rule in Sequin here, as the present case does not involve an ANR plan,
[Note 59] Ex. 3(3) (emphasis added).
[Note 60] Defendants counsel cites to various appellate decisions that he argues are on point and binding on this court. We have examined the authority presented. All of the decisions are distinguishable, and therefore not instructive on the issue. This court will not therefore discuss these decisions further. Moreover, this court notes that defendants counsel cites to McManus v. Bd. of Appeals of Wayland, 54 Mass. App. Ct. 1110 , n.5 (2002), a 1:28 unpublished decision of the Appeals Court. In light of that Courts statement that, regarding pre-February 25, 2008 Massachusetts Court of Appeals 1:28 decisions, unpublished decisions of this court are not to be relied upon or cited as authority in unrelated cases, Lyons v. Labor Relations Comm., 19 Mass. App. Ct. 562 , 566 n.7 (1985), this court finds defense counsels arguments based upon McManus to be unavailing..
[Note 61] Ex. 2.
[Note 62] Defendants Post-Trial Brief at 9. Although evidence was presented at trial that the Planning Board may have been concerned about emergency access, Tr. 146:19 to 147:9, this court is limited in its review to the reasons stated in the denial; those reasons nowhere explicitly address emergency access concerns. The court notes, in any event, that the testimony in question was largely generalized and speculative in nature.
[Note 63] See Exhibits. 5, 6.
[Note 64] At trial, defendants counsel sought to argue that the driveway access should be wide enough for a minor street because the lots will derive their frontage from the driveway. See Tr. 143-144. The court understands that Sheldon Street provides frontage for both lots, and sees no need to discuss defendants argument to the contrary.
[Note 65] Proposed findings of fact and rulings of law are hereby adopted to the extent they are consistent herewith. They are otherwise denied.