FRANK LYMAN vs. PLANNING BOARD OF WINCHESTER.

CUTTER, J. Lyman filed an appeal in the Superior Court with respect to the Winchester planning board's approval of a definitive subdivision plan filed by Frank Catalano, Inc. (Catalano) on January 4, 1965. See G. L. c. 41, Section 81BB (as

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amended through St. 1957, c. 199, Section 2). Catalano was allowed to intervene. Lyman has now appealed to this court from a final decree dismissing the bill. The case is before us upon the evidence and a report of material facts.

Catalano owned about seven and one-half acres of vacant land in Winchester in an area largely developed to the north and east. On the south and west Catalano's land is almost entirely bounded by over thirty-two acres of undeveloped land owned by Lyman. The Catalano land slopes down northerly from a high point at its boundary with the Lyman land. The Lyman land slopes down for about 120 feet south from the Catalano boundary, then dips into a valley.

The Lyman land is in part woodland with outcroppings of ledge, is potentially a fine residential area, and is largely surrounded by other privately owned land and town land. It abuts on a public way (High Street) only at its extreme southwest corner on a frontage of 111 feet. The access from High Street to the Lyman land narrows, not far from the highway, to a width of twenty feet at one point. There is possible access to the land at one point on its easterly boundary. This access would be over Girard Road, a "private way that has been approved by the [b]oard of [s]urvey" upon the basis of a layout forty feet wide. [Note 1] To have appropriate access to a development on his land, Lyman (even with some access over Girard Road) would be obliged to buy additional land near High Street (to widen his access from that direction) or to obtain other access.

The controversy in the present case arises from the planning board's rules and regulations. [Note 2] See G. L. c. 41, Section 81Q

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(as amended through St. 1960, c. 417; see later amendment by St. 1965, c. 64). Certain of these regulations provide that a definitive plan shall take into account conditions and facilities on property adjoining the land being subdivided. [Note 3]

In 1961 Catalano filed a preliminary subdivision plan which showed one way extending as a dead-end street south to the boundary between the Catalano land and the Lyman land. It also showed an extension to that boundary of sewer, storm drainage, and water lines. These extensions were eliminated in the definitive plan, upon the recommendation of the planning board. At a public hearing on February 1, 1965, Lyman objected to approval of the definitive plan because it did not give him access to the proposed roads on the Catalano land (at a time when it seemed that he might lose his access to High Street) and because it did not comply with the regulations (fn. 3). The board approved the plan on February 18, 1965.

One member of the board, in testimony on which the trial judge obviously relied, gave as the reason for the board's failure to require the extension of roads and sewer lines to the Catalano-Lyman boundary the topographical irregularities of both parcels. He pointed out (a) that the extension of one of the roads proposed for construction on Catalano's land would necessitate a grade not acceptable under the town's regulations and (b) that any method of solving the grade problem would either "injure Catalano seriously and . . . be of no gain to . . . [a possible] Lyman development"

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or would "seriously injure the Lyman land and be of no gain to the Catalano interests." He testified that the contour of the land was such that drainage from the Lyman land to the Catalano land could not be accomplished in "a gravity system." The evidence, including expert testimony and contour maps, shows that these views were justified. The trial judge concluded that the board's "decision was based upon valid engineering and other pertinent factors governing sound planning and development."

1. The subdivision control law (G. L. c. 41, Section 81Q) requires each city and town to adopt reasonable rules and regulations. [Note 4] Catalano, however, argues that there is no statutory authority for the Winchester regulations (fn. 3) that certain facilities be extended to adjoining undeveloped land. See, however, G. L. c. 41, Sections 81M (as amended through St. 1957, c. 265), [Note 5] 81Q, 81U (as amended through St. 1964, C. 105, Section 2; see later amendment, St. 1965, c. 62). [Note 6]

We need not decide the extent to which local regulations, adopted under Section 81Q, may require (within reasonable limits) an owner so to frame his definitive subdivision plan as

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to assure, in the public interest, not only (a) that the particular subdivision will have adequate roads, drainage and sewer systems, and water and other utility lines, but also (b) that these facilities will be so arranged as to connect appropriately with similar facilities in adjacent developed and undeveloped areas. Catalano has not been required to provide facility connections with Lyman's land. Instead, the planning board has decided that there is no justification for applying the regulations (fn. 3) to Catalano's land in view of the character of Catalano's and Lyman's parcels.

2. The question for decision thus is whether, assuming the regulations to be valid, the planning board was justified in approving Catalano's definitive plan without requiring it to extend to its boundary with Lyman at least one road in his subdivision and the water, sewer, and drainage lines.

The evidence justifies the trial judge's findings concerning the Catalano and Lyman parcels and his conclusion that the planning board's decision "was based upon valid engineering and . . . factors governing sound planning and development." He correctly ruled that the board's regulations did not preclude it from approving Catalano's plan without requiring it to project its roads, water lines, and sewers to the boundary. The board could reasonably conclude (a) that no useful purpose would be served by such action, (b) that, even if the access from High Street and Girard Road should turn out to be inadequate, providing road, water, and sewer access to the Lyman land from Catalano's land would do Lyman little good, and (c) that, for the proper development of the Lyman land, access from other directions must be obtained in any event.

In deciding not to apply the regulations (fn. 3) the board could rely upon c. 41, Section 81R (as amended through St. 1955, c. 411, Section 1). [Note 7] Section 81R gives recognition to the fact that a regulation, although in general sound and reasonable,

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may be unreasonable when applied to particular land or in unusual circumstances. The standards, by which the board is to determine whether in any case it will decline to apply the regulation, are adequately set out in terms of the "public interest" and of consistency "with the intent and purpose of the subdivision control law." See c. 41, Section 81M. An administrative regulation, like a zoning by-law, may not be applied to a parcel of land where (because of the peculiar circumstances of the parcel) application of the regulation will serve no public interest and will have no rational relation to the public safety, health, morals, welfare, and convenience. See Barney & Carey Co. v. Milton, 324 Mass. 440, 444, 450; Jenckes v. Building Commr. of Brookline, 341 Mass. 162, 166; Aronson v. Sharon, 346 Mass. 598, 605.

Final decree affirmed.