NORTH LANDERS CORPORATION vs. PLANNING BOARD OF FALMOUTH.

LIACOS, J. North Landers Corporation (North Landers) appealed the judgment of a Superior Court judge who upheld

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the disapproval by the planning board of Falmouth (board) of its definitive plan for a subdivision of land in the town of Falmouth. The Appeals Court reversed the judgment of the Superior Court judge, annulled the action of the board, and directed that a further public hearing be held by the board for the purpose of taking "final action" on the plan submitted. North Landers Corp. v. Planning Bd. of Falmouth, 9 Mass. App. Ct. 193 (1980). We granted the board's application for further appellate review. As will appear, for reasons other than those stated by the Appeals Court, we vacate the judgment of the Superior Court. We further order that the matter be remanded to the board by the Superior Court judge with directions that the board make a detailed statement of its reasons for disapproval of the plan, as required by G. L. c. 41, Section 81U.

On January 26, 1977, North Landers filed a preliminary plan for subdivision of 447.36 acres of land in the Hatchville area of Falmouth. The board rejected the preliminary plan on March 25, 1977, citing reasons of "[i]nadequate access, lack of plans and proof of adequate water supply and pressure, hazards of proximity to the divided highway, an overlong dead end road within the subdivision and the poor condition of the town way onto which the subdivision traffic would put an undue burden, in addition to the possible sanitary problems which have been cited by the Health Director." On February 24, 1977, prior to the board's disapproval of the preliminary plan, North Landers filed a definitive plan. [Note 1] After a public hearing on April 19, 1977, the board voted to disapprove the definitive plan, this time citing its reasons for disapproval as "[i]nadequate access, the inadequacy of Sam Turner Road and other reasons." North Landers took an appeal from this decision to the

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Superior Court. G. L. c. 41, Section 81BB. We summarize the facts found by the trial judge.

The proposed subdivision encompasses approximately 447 woodland acres located in a hilly ridge area of Falmouth. Essentially an oblong, 3,400 feet wide by 6,000 feet long, the subdivision is bounded to the north and south by dense woods. (A sketch showing the relevant features of the final subdivision plan may be found as an appendix to this opinion.) A divided major highway, Route 28, forms the westerly border of the land area. On the east, a neck of land extends to Sam Turner Road, a public way. The portion of the locus which abuts Sam Turner Road is 800 feet long. There is no access from the subdivision to Route 28, which is a limited access highway. North Landers' plan includes a single access road through the eastern neck of the subdivision to the public way, Sam Turner Road. This access road, called Hill and Plain Road, is a divided road laid out to be sixty feet wide with a twelve-foot median strip. [Note 2]

The subdivision plan calls for partition of the 447 acres into 447 buildable lots, with 144 acres to be used for open space, including an eighty-acre public golf course. Major and minor roads within the subdivision, including the access through Hill and Plain Road, would cover 43,127 feet. The judge estimated that 1,100 to 1,400 people will reside in the finished development; residents' automobiles will number at least 500. The record is silent as to how many additional automobiles the public golf course might draw into the subdivision. Using Hill and Plain Road, the single access road located at the eastern extreme of the proposed subdivision, homeowners on the western end of the development would need to travel two miles of subdivision roads before entering the public way.

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The subdivision roads ultimately would funnel traffic through the Hill and Plain Road access to the public way, Sam Turner Road. Sam Turner Road, although laid out to a width of forty feet, is presently paved only eighteen feet across. Because the road winds and dips, it would have to be straightened and widened in order to accommodate the traffic from the proposed subdivision.

The judge concluded that access to the subdivision through a single access road was inadequate to protect lives and property as delineated under G. L. c. 41, Section 81M. [Note 3] He further determined that Sam Turner Road is inadequate to carry the expected traffic generated by the development.

North Landers argues that the judge erred in basing his conclusions on Section 17 of the Falmouth subdivision regulations,

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set forth in the margin. [Note 4] North Landers disputes the judge's conclusion that this section gives due notification to an owner or subdivider that adequate access must be provided or that it will form a basis for the imposition of conditions or disapproval of the submitted plans. It contends instead that the language of Section 17 fails the standard of definiteness required by the Subdivision Control Law and developed by earlier decisions of this court. The Appeals Court agreed with these contentions and reversed the judgment on this basis. We do not agree. North Landers also asserts that neither the board nor the judge may consider the condition of a public way outside the subdivision. Lastly, North Landers contends that the board's written decision failed the specificity requirements of G. L. c. 41, Section 81U. The Appeals Court did not base its decision on either of these contentions. We agree with the final contention.

I. The Adequacy of Sam Turner Road.

North Landers attacks the board's and the judge's finding that Sam Turner Road is inadequate, on the ground that the Subdivision Control Law does not permit evaluation of ways outside a proposed subdivision. We do not find such a limitation in the statute. The language of Section 81M exhorts a

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"due regard" for "lessening congestion . . . in the adjacent public ways" and "for coordinating the ways in a subdivision with . . .the public ways in the city or town in which it is located and with the ways in neighboring subdivisions." [Note 5] The issue of whether a planning board has "the power to disapprove a subdivision plan due to traffic problems and access problems caused not by any inadequacy of the ways set out on the subdivision plan, but rather by inadequacies in the public ways adjacent to or providing access to the proposed development" has been explicitly left open. Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306, 309 (1976) (Canter I). Although the statute might be argued to be ambiguous in part, see Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass. 149, 153 (1959), we view the quoted language of the statute to be clear. See Chouinard, petitioner, 358 Mass. 780, 782 (1971); Davey Bros. v. Stop & Shop, Inc., 351 Mass. 59, 63 (1966). Section 81M imposes no such circumscription as North Landers urges. The adequacy of Sam Turner Road was properly considered by the judge. [Note 6]

Consideration by the judge of factors pertaining to safety, accessibility, or the increased traffic on Sam Turner Road comports with decisional law in this and other jurisdictions. Factors outside the subdivision may be considered where relevant to the requirements of the statute or of local regulations. See, e.g., Rounds v. Water & Sewer Comm'rs of Wilmington, 347 Mass. 40 (1964) (planning board may

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condition approval by requiring reasonable construction outside the subdivision to bring water service to it); Hamilton v. Planning Bd. of Lexington, 4 Mass. App. Ct. 802, 803 (1976) (where regulations purported to require adequate provision for drainage, board properly rejected plan after consideration of entire watershed area). Contrast G. L. c. 41, Section 81Q (local regulation may not require dedication of land within subdivision to public use without just compensation) (emphasis added).

Other jurisdictions having subdivision control statutes similar in intent to G. L. c. 41, Section 81M, are in agreement that the condition of adjacent public ways must be considered in the board's deliberations. See, e.g., Buena Park v. Boyar, 186 Cal. App. 2d 61 (1960); Nicoli v. Planning & Zoning Comm'n of Easton, 171 Conn. 89, 96 (1976); Arrowhead Dev. Co. v. Livingston County Rd. Comm'n, 92 Mich. App. 31 (1979); Pearson Kent Corp. v. Bear, 28 N.Y.2d 396, 399 (1971).

II. The Sufficiency of Section 17 of the Board's Regulations.

The essence of North Landers' claim is that the board's regulation 17, requiring "adequate access," is so vague that it fails to give the developer notice of what might be required in order to obtain ultimate approval of its plan. [Note 7] The statute requires that planning boards promulgate reasonable rules and regulations by which prospective developers may know what will be expected in a satisfactory subdivision plan. G. L. c. 41, Section 81Q. [Note 8] This court has interpreted

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Section 81Q to require that subdivision regulations must be "comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required of them." Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 334 (1962). Cf. Pieper v. Planning Bd. of Southborough, 340 Mass. 157 (1959). The rule of Castle Estates has been the touchstone of judicial scrutiny of local regulations for any taint of impermissible vagueness. See Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171, 179 (1977) (rejection of subdivision plan on basis of language of Subdivision Control Law improper without precise local rule to same effect); Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306, 307-308 (1976) (Canter I) (absent regulation regarding traffic on adjacent ways, board may not disapprove plan on grounds of increased traffic congestion); Chira v. Planning Bd. of Tisbury, 3 Mass. App. Ct. 433, 438 (1975) (requirements of "attractiveness" and "livability" lack clear and objective standards). The Appeals Court was of the view that the Castle Estates prescription for definiteness is not satisfied by the language of regulation 17 of the board's regulations. North Landers Corp. v. Planning Bd. of Falmouth, 9 Mass. App. Ct. 193, 194-195 (1980). Our reading of the regulation in light of the attendant circumstances and related case law, however, leads us to conclude that the Castle Estates standard has not been violated.

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a. The Denotation of "Adequate Access."

The language of the challenged regulation requiring "adequate access" falls within that category of indefinite terms which Ernst Freund has called terms of judgment and degree. Freund, The Use of Indefinite Terms in Statutes, 30 Yale L.J. 437, 438 (1921). To analyze such open-ended statutory language under vagueness criteria, one must take into account not only the words themselves, but the entire context of the regulation attempted.

The board's regulation draws on the language of G. L. c. 41, Section 81M, which includes provision for "adequate access" as an integral and principal object of the Subdivision Control Law. Stoneham v. Savelo, 341 Mass. 456, 459 (1960). See R. Anderson, American Law of Zoning Section 1.15, at 23-24 (2d ed. 1976) (coordinating streets within subdivisions with existing streets to provide "adequate open spaces for traffic" is standard which pervades enabling statutes); 4 A. Rathkopf, Zoning and Planning Section 2, at 71-11 (4th ed. 1980) (planning board obliged to require adequate road facilities); E.C. Yokley, The Law of Subdivisions Section 3, at 4 (1963 & Supp. 1980) (purpose of requiring subdivision plots is to assure adequate provision for streets); Johnson, Notes on Planning and Zoning, 43 Mass. L.Q. (No. 3) 20, 23 (1958) (rationale of subdivision control is to prevent creation of substandard streets).

Albeit broad in connotation, the term "adequate access," or such cognates as "suitable" and "satisfactory," [Note 9] runs like a leitmotif through the law of subdivision control; and courts have had little difficulty applying its basic meaning under different factual circumstances. In the seminal case of Mansfield & Swett, Inc. v. West Orange, 120 N.J.L. 145 (1938), the New Jersey Supreme Court underscored the common understanding which attaches to the concept of access: "The free flow of traffic with a minimum of hazard of

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necessity depends upon the number, location and width of streets. . . ." Id. at 150. The essential significance of the phrase, which is well within the comprehension of planning boards and landowners, is that "streets be of sufficient width and suitable to accommodate motor vehicle traffic and to provide access for fire-fighting equipment and other emergency vehicles." Noble v. Township Comm. of Mendham, 91 N.J. Super. 111, 118 (1966).

In Massachusetts, the existence of adequate access is the threshold determination that triggers operation of the Subdivision Control Law under G. L. c. 41, Sections 81L and 81P. [Note 10] The reasoning of cases decided under these sections of the statute sheds further light on the common understanding of the notion of adequate access. In Retting v. Planning Bd. of Rowley, 332 Mass. 476 (1955), this court applied the phrase

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"adequate access," used in G. L. c. 41, Section 81M, to require a way adequate for vehicular traffic to the subdivision lots. Id. at 480-481. In Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 (1978), where adequate access to an existing way was the basis claimed to excuse approval as a subdivision as authorized by Sections 81L, 81P, this court stated that "a principal object of the [Subdivision Control] [L]aw is to ensure efficient vehicular access to each lot in a subdivision, for safety, convenience, and welfare depend critically on that factor." Id. at 807. Again, in Casagrande v. Town Clerk of Harvard, 377 Mass. 703 (1979), we invoked the "adequate access" standards of Section 81M to decide that frontage on a narrow, partly paved road too narrow for two vehicles to pass was insufficient to bypass planning board approval as a subdivision. See also Richard v. Planning Bd. of Acushnet, 10 Mass. App. Ct. 216, 219 (1980) (stated legislative purpose of Subdivision Control Law is safe, convenient access). Cf. Spalke v. Board of Appeals of Plymouth, 7 Mass. App. Ct. 683, 690 (1979). We conclude from these cases that the phrase "adequate access" under G. L. c. 41, Sections 81L, 81M, and 81P, is not so rubbery or indefinite a term as to elude common understanding. We consider next whether adoption into the local regulation of the general enabling language of c. 41 falls short of the Castle Estates definiteness standard.

b. The Language of Regulation 17.

North Landers urges that we compare the board's regulation 17 with regulations which have been upheld under Castle Estates. [Note 11] Even accepting North Landers' claim that more lucid regulatory language can be used, we do not think that imperfect wording is necessarily fatal to the regulation's validity. Within the Castle Estates rubric of definiteness there is room for flexibility to allow local boards

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to tailor decisions to the specific facts and circumstances. Note, Land Subdivision Control, 65 Harv. L. Rev. 1226, 1227 (1952) (unlike zoning which presupposes crystallized determination of land use, subdivision control contemplates general standards to be specifically applied by the local administrative body). The Subdivision Control Law has blended a requirement for specificity with permission for flexibility. General Laws c. 41, Section 81U, contemplates not only detailed statements of reasons for disapproval but also the option to revoke disapproval on further negotiation with developers. [Note 12] Also, Section 81R permits boards to waive local rules under appropriate circumstances in the public interest. These provisions, as well as the language of G. L. c. 41, Section 81M, calling for a "due regard" to certain aspects of the public interest and that of G. L. c. 41, Section 81Q, which calls for adopting and amending "reasonable" rules and regulations, bespeak the Legislature's cognizance that planning decisions are rarely made by hard and fast rules. Tilden, Improved Administration of Subdivision Control, 46 Mass. L.Q. 201, 203-204 (1961) (planning conforms to "no single ideal formula which all towns and cities can adopt"). Planning board regulations may permit sufficient leeway for determination based on the individual facts of each case. Sansoucy v. Planning Bd. of Worcester, 355 Mass. 647, 648-649 (1969) (local regulation calling for underground utilities unless "not feasible" in judgment of board held valid). Lyman v. Planning Bd. of Winchester, 352 Mass. 209, 213-214 (1967) (board has discretion to apply or not to apply its regulations requiring extension of subdivision streets in the public interest). Canter v. Planning Bd. of Westborough, 7 Mass. App. Ct. 805, 811 (1979) (Canter II) (use of word "normally" in local board's regulation covering pedestrian ways properly reserves to board case-by-case determination of what might be appropriate

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for a particular subdivision). McDavitt v. Planning Bd. of Winchester, 2 Mass. App. Ct. 806, 807 (1974) (regulation that streets be continuous and in alignment with existing streets "as far as practicable" upheld under Castle Estates scrutiny).

The decision of the Appeals Court in Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79, 82-83 (1976), also bears relevance to the instant case. In Mac-Rich the developer alleged failure of the regulations to notify him that a greater road width than the forty-foot minimum might be required. The court found sufficient notice in the language. "[g]reater width shall be required by the Board when deemed necessary for present and future vehicular travel." Id. at 83. The court concluded that the Castle Estates standard was satisfied because the regulation gave "ample notice of `what is or may be required' " (emphasis in original). Id. The Mac-Rich court approved the regulation as consistent with a proper exercise of the board's discretion to make a case-by-case determination. Id. at 85-86.

We are unable to find a case in which regulations regarding adequate access have been invalidated on their face. Rather, the Castle Estates standard is offended when local boards have introduced reasons not specified in the published regulations. See, e.g., Pieper v. Planning Bd. of Southborough, 340 Mass. 157, 163-164 (1959) (where plan conformed to regulations board could not delay approval until receipt of engineering survey); Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass. 149, 152 91959) (where board admitted plan was proper, it could not reject it on its own consideration of area water shortage); Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171, 178 (1977) (no rule of board required developer to demonstrate adequate water supply for firefighting). Canter I, supra, is of the same import. In Chira v. Planning Bd. of Tisbury, 3 Mass. App. Ct. 433 (1975), the challenged regulation permitted open-ended discretion on a matter outside the specified ambit of Section 81M, viz. "attractiveness." Id. at

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438. We thus distinguish Chira, as well as Fairbairn and Canter I, supra, in which the boards relied on language from G. L. c. 41, Section 81M, "danger to life and limb," which did not appear in any local regulation.

We conclude that the regulation calling for adequate access within the subdivision and in the adjacent public way is valid and consistent with the intent of G. L. c. 41, Section 81M. III. The Procedural Deficiencies.

Although we have concluded that the board's regulation 17 was sufficient to give North Landers notice under G. L. c. 41, Section 81Q, we find that the board's statement of reasons for its decision falls seriously short of the statement "in detail" required by G. L. c. 41, Section 81U. [Note 13] The provision in G. L. c. 41, Section 81U, for revocation of disapproval and the two-step plan presentation process outlined in G. L. c. 41, Sections 81S, 81T, and 81U (amended through St. 1978, c. 422, Sections 1 and 2), manifest a legislative intent to maximize the dialogue between board and developer and thus to ensure the developer's right to approval of plans which are brought into compliance with the statutory and regulatory requirements applicable to the locus. Without the accountability built into G. L. c. 41, Section 81U, the board's legitimate discretion might degenerate into the caprice feared by early critics of the statute. See generally McCarty, Planning Boards and Subdivision Control Again, 40 Mass. L.Q. (No. 4) 23, 29 (1955); 1953 House Doc. No. 2249, at 10-12; Tilden, Improved Administration of Subdivision Control, 46 Mass. L.Q. 201, 203 (1961). Indeed, the exhortative give-

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and-take implied in G. L. c. 41 distinguishes the operation of subdivision control laws from the more rigid negative zoning procedures. See Johnson, Notes on Planning and Zoning, 43 Mass. L.Q. (No. 3) 20, 24 (1958) (zoning forbids certain land uses, but subdivision control compels construction of adequate ways). The record before us indicates that both parties failed to comply with statutory procedures. North Landers proceeded to file a definitive plan before it received the statement of disapproval for its tentative plan. The board failed to detail wherein the access within the subdivision or the condition of Sam Turner Road was inadequate. [Note 14] Under Section 81U, the developer is entitled to resubmit the definitive plan, and, if it then conforms to the regulations of the board, the board is required to "revoke its disapproval." Failure of the board to make clear its reasons for disapproval thus deprives the developer of this statutory right. What may suffice by way of regulation is different from what constitutes a fair decision. Commonwealth Properties, Inc. v. Washington County, 35 Or. App. 387 (1978). Marbet v. Portland Gen. Elec., 277 Or. 447 (1977). Standards which may be stated initially only in general terms are made concrete in the course of a proceeding focusing on the particular site. 277 Or. at 460.

We hereby vacate the judgment of the Superior Court judge and remand to that court which is to direct the planning board of Falmouth to provide a detailed statement of the reasons for its disapproval of North Landers' definitive plan. The Superior Court may provide in the judgment that it shall retain jurisdiction to review the adequacy of further findings of the board.

So ordered.

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