Judgment entered in this case on July 12, 2010. The case was heard on appeal in the Supreme Judicial Court. Cater v. Bednarek, 462 Mass. 523 (2012). The judgment of this court was vacated, and the case remanded for further proceedings. The Supreme Judicial Court directed that this court address on remand two issues concerning the judgment, those having to do with the width and the grade of the roadway authorized by the judgment; the rest of the judgment the Supreme Judicial Court did not disturb.
I ordered that the parties provide the court with their views on the actions the court ought to take to comply with the Supreme Judicial Court's rescript and to enter judgment after remand. The parties submitted a responsive report, and appeared at a hearing to review the steps required to comply with the Supreme Judicial Court's directives. Following that hearing, I asked counsel to submit supplemental memoranda setting forth their positions on what is required to bring the case to judgment. I invited memoranda on (1) the municipal planning board's legal ability or inability to waive the local subdivision rules' 14-foot road width requirement, (2) the form of plaintiffs' intended application to the planning board, whether under G.L. c. 41, § 81Y or another section, and (3) whether the judgment to be issued by the court need address whether the subject driveway will service more than one lot. Each of the parties who appeared at the hearing subsequently submitted or joined in supplemental memoranda. Taking into account the positions of the parties as presented to the court in these memoranda and at the hearing, I now determine the form the judgment of this court ought to take to follow the instruction of the Supreme Judicial Court.
Width of the Roadway.
The decisions I reached after two phases of trial sought to achieve a balance among the competing interests of the landowners who are parties to this long-standing dispute. One of the difficult issues in striking an equitable balance was to weigh the need for a roadway adequate in width to accommodate the uses to be made of it by the plaintiffs (who seek to develop their parcel for residential use), against the impact the roadway's width would produce on the land of the defendants over which the roadway would travel, much of which is of sensitive, even fragile, environmental condition. After weighing all of the evidence at trial, I determined that these competing interests, both meritorious, would be served adequately by limiting the finished surface of the driveway to twelve feet in width. A wider finished surface would be unnecessarily intrusive and detrimental to the burdened land, and was not required to serve the reasonably expected use of the Caters' residential parcel. That is why the judgment I ordered entered had a twelve foot wide maximum for the finished surface of the road.
On appeal, the Supreme Judicial Court was troubled by the judgment's twelve-foot roadway surface limit, because of concern that the subdivision control law regulations of the Truro Planning Board (which the SJC concluded would likely need to be satisfied before the Caters could get in the ground with an access roadway and then be permitted to improve their land for residential purposes) included design standards which specified a minimum width of fourteen feet for an access road - fourteen feet of width, a shoulder of four feet, and a right of way of forty feet. 462 Mass. at 534.
The SJC also observed that the subdivision regulations gave the planning board leave, "[w]here approval is sought for a subdivision on land of a rural or sensitive nature... [ to, in] its discretion, waive strict compliance with the [design standards] in order to allow roads servicing not more than four (4) dwellings to be more in keeping with the rural landscape...." Id. The SJC expressed concern, however, about provisions of the subdivision regulations that purported to "limit the discretion of the planning board under this provision, entitled 'Rural Road Alternative,' in one regard: in no instance shall the width of the road surface be waived.'" Id. at 534-535.
The remand was to have this court deal with this apparent problem with the judgment - that it limited the finished surface of the authorized roadway to no more than twelve feet, while the subdivision regulations placed the width minimum at fourteen feet and purported to make this width regulation one which could not be waived. The SJC noted that at the time I rendered my decision, I appeared "not to have been aware of this limitation on the planning board's discretion. No party in the litigation brought it to his attention and the expert witnesses that addressed this point at trial suggested the minimum road width requirements could be waived by the planning board." 462 Mass. at 535.
I may not have been as blissfully ignorant as the SJC's opinion charitably suggests. Rather, the judgment proceeded on the understanding that the twelve-foot limit the court imposed on the roadway's finished surface was narrower than required by planning board subdivision regulations, and that those regulations, at least on their face, purported to make that minimum width "nonwaivable." However, as the testimony summarized by the SJC in note 24 of its opinion strongly suggested to me, I nevertheless was convinced of the genuine possibility that the planning board might in appropriate circumstances waive compliance with the roadway width requirements imposed by its regulations. I concluded that -- notwithstanding the provision grafted on to the road width regulations that, while they might be reduced to respect land of a rural or sensitive nature, the width might not be waived to anything less than fourteen feet -- as both a legal matter and a prudential one, the board might waive the width requirement to authorize a road meeting the twelve feet maximum imposed in the judgment.
Just like the provisions setting minimum width requirements for subdivision roads, the provision that purportedly locks in the fourteen foot road surface width as "nonwaivable" is part of the Town's subdivision rules and regulations, adopted by its planning board under G.L. c. 41, § 81Q. The statute authorizes these rules and regulations if they are "reasonable," and "not inconsistent with the subdivision control law," other statutes, and valid ordinances. Subdivision rules and regulations must comply with and yield to statutes. Subdivision rules and regulations are not zoning by-laws, enacted by two-thirds vote of a town's legislative body, the town meeting, and which only can be varied by a lawful variance duly granted.
Rather, subdivision rules and regulations are capable of being waived by the planning board. The subdivision control law provides explicitly for waiver. G.L. c. 41, § 81R authorizes a planning board "in any particular case, where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law, [to] waive strict compliance with its rules and regulations, and with the frontage or access requirements specified in said law...."
Nothing in this or any other section of the subdivision control law affords a planning board the power to make some or all of its rules and regulations not waivable. The power to waive a subdivision rule exists as a matter of statutory mandate, and resides in a planning board as to all of the subdivision rules, without limitation, provided the statutory prerequisites are met, including that the waiver is in the public interest and not inconsistent with governing statutes and local ordinances. If those conditions are satisfied, the planning board in any particular case is free in its discretion to waive a rule or regulation which otherwise might stand in the way of approval of a plan showing access. The decision to waive or not is generally committed to a planning board's discretion, see, eg., Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 529 (2009) (pursuant to § 81R, "a planning board enjoys broad discretion to waive strict compliance with its rules and regulations...."). Unless the waiver granted substantially derogates from the intent and purpose of the subdivision control law, a reviewing court will uphold the waiver. Id.
In some cases our courts have found an abuse of discretion where a planning board declined to waive a particular subdivision rule. See Musto v. Planning Bd. of Medfield, 54 Mass. App. Ct. 831 (2002), in which Justice Lenk, then sitting in the Appeals Court, upheld a determination by Justice Green, then sitting in the Land Court, and explained that, while a planning board enjoys broad discretion under § 81R to waive or not strict compliance with its subdivision rules and regulations, "there may be circumstances where a planning board's decision to deny a waiver may constitute an abuse of discretion, just as there may be circumstances where granting a waiver may be an abuse of discretion." Id., at 837. The Musto court upheld this court's determination that the planning board had improperly withheld a waiver of a dead-end street limit, where the public safety purposes for which the limit was adopted did not necessitate denial of the requested waiver, and the waiver's denial was based on improper criteria. Id., at 838.
No appellate decision has taken the view that a planning board, in adopting subdivision rules and regulations, may immunize some of them from even being considered by the board for waiver, simply by saying so in the regulations themselves. If a board were able to do so, it could flout the statutory waiver opportunity which the legislature has made available under section 81R. At a minimum, it would seem that such a "no waiver" rule might itself, in appropriate instances, be waived by a board in a particular case if the public interest required it.
I conclude, as I did at the time judgment entered initially, that the purported "no waiver" language of the Truro board's subdivision rules and regulations, which suggests that the fourteen foot width of road surface rule should "in no instance.. be waived," is merely precatory, and does not as a legal matter prevent the board, if and when presented with a meritorious application for waiver as to a road surface less than fourteen feet, from granting that waiver. None of the parties have urged me to a different view, all apparently accepting that under subdivision control law in Massachusetts, a planning board may not lawfully bulletproof its regulations by adopting one rule which makes some or all of the rest of them incapable of waiver, no matter the circumstances which later present themselves when a waiver is sought.
I do not read the Supreme Judicial Court's opinion in its review of this case to hold that the planning board is legally incapable of even considering a waiver of the fourteen-foot road surface minimum. That legal question never was argued to the SJC, and on remand the parties have been unable to find legal authority for the proposition that a planning board may adopt a valid and preclusive "no waiver" rule when it promulgates subdivision rules and regulations. Instead, I take away from the opinion that the SJC had understandable discomfort with a scenario where the court, in balancing the parties' interests, set limits on the easement's breadth, and in doing so imposed a width requirement which was less than allowed under the applicable development regulations.
What I had in mind was that the Caters would seek permits and approvals in the Town that would allow the Caters to build on their residential property by accessing it over a roadway built in compliance with the dimensional limitations the judgment imposed. Those limitations were set to serve very compelling competing interests of the owners of the sensitive land over which the roadway is to pass. If the strictures of the court's judgment require the Caters to obtain relief, even of a discretionary nature, from municipal boards and officials, including the planning board, before they may lay out the roadway within the location the judgment specifies, the Caters need to seek that relief. If, to adhere to the judgment, the roadway width limits of the Truro subdivision rules need to be waived, the Caters should make that request. If I were to direct that the Caters automatically receive, as a matter of property law, an easement of whatever width is the minimum demanded by the subdivision rules from time to time to build as of right, I would be giving the property rights of the burdened landowners shorter shrift than they deserve. I would be imposing on them the environmental and other impacts which they would not need to shoulder if a waiver or other dispensation could be secured. If the Caters owned the land over which the easement is to run, they as fee landowners might well seek waivers to minimize the width of the road and its impact on their own land. It hardly seems fair that the burdened owners be forced to accept, without any alternative even attempted, the full-bore roadway which the rules require in the absence of waiver. I would be remiss in not requiring the Caters at least to seek that relief.
I do not read the SJC to say, however, that should the waivers not be secured, the Caters are to be left with no hope of access. To the contrary, if the Caters ultimately do not get permission to build a road surface with a width of twelve feet, as the judgment provides, they should be free to return to this court to seek modification of that provision. They should be empowered in such a case to present to the court the results of their attempt to build their road in compliance with the judgment, and to request that the court permit them a different configuration of the roadway, so as to vindicate their easement rights.
I did not detail all of this in my decision and judgment because I was mindful of the obligation to limit my decision, already sufficiently involved, to the case and parties before me. I recognized that any question about the permits and approvals necessary to build the roadway would need to be heard before local officials and boards (including the planning board), none of whom were parties before this court. I also realized that there was no specific set of plans for the development of the Cater land, or for the construction of the disputed roadway, which had been presented to the municipal authorities. I was loathe to opine about the limits of municipal authority and discretion in connection with a plan for an access roadway which had yet to be fully designed and submitted to any official. The boards and other municipal representatives who consider and act on plans such as these need to do so in the first instance, and without a court leaning over their shoulders. It would not be appropriate for a court to direct a nonparty board to grant a waiver to accommodate the court's decision resolving an easement dispute, and I did not and will not do so. There are different legal goals and standards which apply to the resolution of private parties' easement rights, as a matter of property law, on the one hand, and those governing land use decision making by public authorities, on the other. The municipal authorities who consider the Caters' requests will be free to act as the legal responsibilities of those officials dictate.
However, I do recognize that there well may be legal challenges arising from the decisions local land use boards may render when the Caters formally put in their requests for permits and approvals. Those challenges may come from, among others, one or more of the parties to this case. I am mindful that none of the defendants wish to have the Caters' easement pass over or near their land, that the court has imposed a route which burdens some of the defendants' land over their strenuous objection, and that a land use decision which keeps the roadway from being installed in that route will prevent or delay the unwelcome for those defendants. A board decision which authorizes a roadway in keeping with the rights established in the judgment of this court may well be challenged by some of the defendants in the pending action, and a contrary board decision may be challenged by the Caters, if not others. I do think it would be appropriate for litigation in which a party to the current action seeks judicial review of a local land use decision concerning the route, dimensions, and particulars of the roadway serving the Cater land to be brought in this court, and the judgment in this case will require that.
Finished Grade of the Roadway.
The Supreme Judicial Court also directed that I consider on remand "whether there is an inherent contradiction in the judgment as to the requirements regarding finished grade of the roadway." 462 Mass. at 536.
On this issue, too, I came to the grade requirements embodied in the judgment after considering all the evidence, weighing the competing interests of the plaintiffs and of the landowners over whose holdings the roadway would pass. The grade of the roadway has important implications for the environmental impact the construction and presence of the road will visit on the dunes and other sensitive portions of the route, as the decision I issued explains in detail.
On the question of the finished grade of the roadway, I intended that the Caters seek the approvals necessary to build the road to the grade authorized in the judgment. As the SJC noted, "the rural road alternative provision in the subdivision regulations, however, places no restriction on the planning board's discretion to waive the grade requirement...." Id. There is, as well, a provision which sets a design standard that "the maximum grade may be waived, but cannot exceed ten per cent for a distance of one hundred feet." Id. As I concluded on the question of the finished roadway width, I also concluded that the board may, in appropriate cases in its discretion grant waivers sufficient to allow a roadway to be built with a grade of not less than ten per cent where the natural grade of the terrain is above ten per cent. To the extent that the board's subdivision regulations may be read to mean that the board has declared "nonwaivable" the requirement that the maximum grade not exceed ten per cent for a distance of one hundred feet, I did not and do not consider that nonwaiver language to be binding so as to make the board legally incapable of granting such a waiver. The waiver opportunity made available by the legislature under § 81R must respected, and the board's attempt to wall off certain aspects of its regulations from any possible waiver would need to yield.
The judgment's finished grade requirement will be kept intact. The Caters will have the responsibility to seek waivers and other approvals needed to bring into reality the roadway authorized by the judgment. If they ultimately cannot obtain those waivers and approvals, they may apply to the court for modification of the judgment. The court will require that any judicial appeals from local board decisions on the question of the waiver of the subdivision rules regarding finished grade of the roadway which are filed by any of the parties to this action be filed in the Land Court.
Other Issues.
I decline to specify the method or manner in which the Caters should seek the approvals they need to put in the roadway authorized by the judgment. It would not be appropriate to dictate the zoning or subdivision status of the Cater parcel in a way which would influence, much less bind, the Town and its boards and officials, who have not been parties to any of this lengthy easement litigation. It is for the Caters to proceed as they believe the law entitles them. To the extent, however, that to build the roadway in compliance with the judgment the Caters need to seek waivers from the planning board of its subdivision rules and regulations, particularly as to the finished surface width and grade, the Caters will have to do so. If they ultimately cannot secure the waivers required, they will be permitted to return to this court to seek modification of the judgment.
Some of the parties also urge me to amend the judgment to make it emphatic that the Caters' use of the easement established in this litigation is limited to using it to serve one single family house. The Supreme Judicial Court remarked that the trial court opinion "described the 'easement [as] a general right of way serving a single house.'" 462 Mass. at n. 6. The judgment itself does not make any such limitation explicit, and there was no appeal brought, or any alteration of the judgment directed by the SJC, on this point. I decline to alter the judgment on this ground.
I do observe, however, that, to the extent the Caters now or later seek to develop their parcel more intensively than for a single family residential use, and press their right to do so while at the same time urging waivers of subdivision rules that control the dimensions and grade of the roadway used to access their land, their efforts to obtain those waivers may be met with understandable greater hesitation in light of the more intensive use the roadway would be called upon to serve. And if those waivers ultimately are not granted, and the Caters as a consequence return to the court to seek modification of the judgment in this case, the court, in considering their request for modification, would have to take into account that they failed to secure the waivers at a time when they sought to use the roadway for more than just one home.
Amended judgment accordingly.
GLORIA J. CATER and WILLIE J. CATER v. ROBERT BEDNAREK, BRENDA BOLEYN, BETSEY BROWN, FRED GAECHTER, CAROL GREEN, CURTIN HARTMAN, HOWARD IRWIN, JOHN MARKSBURY, and JOEL SEARCY, as they are trustees of Truro Conservation Trust; LUCY CLARK, JENNIFER CLARK KRUGER, and MITCH BROCK, as they are trustees of Silvia M. Clark Revocable Trust; SUSAN B. CABOT, SYLVIA CLARK, and JOAN F. FOX, individually and as trustees of Cabot-Clark-Fox Real Estate Trust; JOAN F. FOX, as trustee of the Residence Trust Agreement; SARA C. MUELLER and PHILIP P. MUELLER, III, as trustees of the Philip P. Mueller Truro Realty Trust; PAUL D. KIERNAN; ELIZABETH ADLER; RAYMOND E. DEMMING; and LOIS C. DEMMING. LUCY CLARK, JENNIFER CLARK KRUGER, and MITCH BROCK, as trustees of the Silvia M. Clark Revocable Trust v. NANCY F. CALLANDER, as trustee of Shambles Realty Trust; ETHAN R. COHEN; and NATALIE FERRIE-COHEN