Opinion
13-P-1632
10-14-2014
F&D CENTRAL REALTY CORPORATION, INC. v. PLANNING BOARD OF BELLINGHAM.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant planning board of Bellingham (board) appeals from a judgment entered in the Superior Court, vacating the board's decision to disapprove the definitive plan for a subdivision in the towns of Milford and Bellingham, submitted by the plaintiff, F&D Central Realty Corporation, Inc. (F&D). The board argues that it acted within its authority, and that the judge erred in failing to give deference to the board's interpretation of its own rules, regulations, and findings of fact. We affirm, essentially for the reasons explained by the trial judge in his detailed findings, rulings, and order for judgment.
Background. F&D filed with the Bellingham town clerk an application for approval of a definitive subdivision plan, involving approximately twenty-two acres of land containing eighteen residential lots; all of the buildable lots are located in the town of Milford. A small triangular parcel of land in the town of Bellingham is included in the plan. There are no residences proposed for the Bellingham parcel, which will contain two catch basins and a settling basin. The plan calls for a curved subdivision roadway, Gordon Drive, to intersect with Beaver Street in Milford at one end, and Mellen Street in Bellingham at the other. Both Beaver Street and Mellen Street are public ways, and another public way, Grove Street, connects the two. Because the proposed subdivision lies both in Milford and Bellingham, F&D was required to submit its subdivision application to both towns and to comply with each town's subdivision rules and regulations. F&D did not request any waivers from Bellingham's rules and regulations.
F&D received approval of its subdivision plan from the planning board of Milford.
The board disapproved F&D's plan after three public hearings and provided six reasons for its decision. F&D appealed the board's decision to the Superior Court pursuant to G. L. c. 41, § 81BB. After a de novo hearing, the judge determined that the board had exceeded its authority in disapproving the subdivision plan; he vacated the board's decision and approved F&D's revised plan. In his written decision, the judge outlined the facts he found credible and explained in detail the deficiencies he saw in each of the board's six stated reasons for disapproval. Specifically, the judge concluded that, in its first reason, the board had applied an erroneous standard with regard to section 25 of the town's rules and regulations. Section 25 refers to section III, which in turn contains section 324(F), pertaining to "sight distances at each intersection with proposed streets" (emphasis added). The judge concluded that the board had erred in basing its decision on insufficient sight distances at the intersection of Mellen and Grove Streets, as both were existing public ways. The concerning sight distance condition "predate[d]" the project and "[would not be] created by the proposal of the subdivision."
Public hearings were held on May 13, May 27, and June 10, 2010. At the June meeting, F&D asked that the board close the hearing and make a decision on F&D's plan. The board noted that F&D was unwilling to improve Mellen Street as requested, and determined "that subdivision rules and regulations required access ways to be improved to Town standards or better if the project is a border development."
In reason two, the board opined that the requirements of section 26 of the rules and regulations, "Border Development," were not met. The judge noted that, "other than setting it forth as a reason to disapprove the subdivision plan, the Planning Board never mentions Section 26," nor sets forth how the section has been violated by the subdivision plan. Reason three of the board, stating that section 324(F) of the rules and regulations, "Environmental Analysis," was not met, also lacked support, in the judge's view, for the same reason he gave for disregarding reason one. In addition, as to the traffic impact on Mellen Street, the judge "credit[ed] the testimony of Professional Engineer James Kempton that the traffic impact on Mellen Street will be minimal." In reason four, the board concluded that the subdivision would entail unwarranted hazards to safety, health, and convenience because of possible traffic "hazards on Mellen Street owing to limited sight distance, alignment and other characteristics of the access roads." The judge found that the "[e]vidence produced at trial [was] insufficient to establish any other hazards of Mellen Street as an access to the subdivision based on alignment or other characteristics." Similarly, the judge concluded that Article IV of the rules and regulations, cited by the board in reason five, did not apply to access roads to a subdivision, but rather to "design and construction of all ways, systems and elements of the subdivision."
In accordance with section 324(F) of the rules and regulations, Kempton submitted a traffic impact analysis report to Stacey Wetstein, Bellingham town planner, in support of F&D's plan; Kempton's report was the only evidence of traffic study analysis presented at trial.
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The board's sixth and final reason for disapproval of the subdivision plan was that "[t]he project is not consistent with the purposes of the Subdivision Control Law." As the judge noted, this reason is not "elucidated" in the board's decision or in its submissions to the court.
The judge also found that "some of the improper motives or reasons for the [board's] disapproval" were contained in the board's decision itself. For instance, the board stated that F&D was required to "provide the same improvements to Mellen Street that were provided for Beaver Street [in Milford]" and that "Bellingham would receive no mitigating tax revenue to help offset the cost of maintenance to Mellen Street." The judge concluded that "[n]o requirement exists in the Rules and Regulations that applicants must bring town public ways which are access routes to the subdivision up to the Town standards for new roads."
Discussion. The board argues that it acted within its scope of authority and that the judge erred in failing to give deference to the board's findings and its interpretation of its own rules and regulations. The board concedes that "the subdivision rules do not expressly prescribe standards for the condition of roadways providing access to a subdivision," but argues that the rules and regulations do provide the board with discretion to deny an application if roadways adjoining the subdivision do not provide adequate access to the development.
At the hearing, "it was [F&D's] burden to show that the board had acted improperly in disapproving their subdivision plan." Wine v. Planning Bd. of Newburyport, 74 Mass. App. Ct. 521, 525 (2009). However, "[a] planning board exceeds its authority if requirements are imposed beyond those established by the rules and regulations." Sealund Sisters, Inc. v. Planning Bd. of Weymouth, 50 Mass. App. Ct. 346, 348 (2000), quoting from Beale v. Planning Bd. of Rockland, 423 Mass. 690, 696 (1996). "Absent a specific provision in its duly enacted rules and regulations, a planning board may not reject a subdivision plan based upon the anticipated impact of the subdivision upon surrounding areas." Id. at 349. Specifically, the board may not base its reasons for disapproval on standards for adjoining roadways not prescribed in the rules and regulations, or exercise its discretion to import its own standards in assessing the adequacy of Mellen Street, absent such rule or regulation. See ibid.
The judge, in reviewing the board's decision, must find the relevant facts and weigh the credibility of the witnesses. See Lily Transp. Corp. v. Royal Institutional Servs., Inc., 64 Mass. App. Ct. 179, 181 (2005). We will not upset the judge's factual determinations unless they are clearly erroneous. Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104, 106 (1991). See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). However, we must decide if the reasons stated by the board in rejecting the proposed subdivision plan were within the scope of its authority under the rules and regulations. See Massachusetts Broken Stone Co. v. Planning Bd. of Weston, 45 Mass. App. Ct. 738, 742 (1998).
In this case, the judge was within his discretion in crediting Kempton's testimony regarding traffic analysis over the opinion testimony offered by Wetstein and Bellingham police Sergeant Lee Rolls, neither of whom had prepared or produced a traffic analysis for Mellen Street. Hamilton v. Planning Bd. of Lexington, 4 Mass. App. Ct. 802, 803 (1976). Although deference is given to a board in granting a special permit or waiver, here, such deference was not warranted where the reasons stated for disapproval fell outside the provisions of the rules and regulations. See Massachusetts Broken Stone Co. v. Planning Bd. of Weston, supra at 742. See also Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517, 529 (2009). The determination of "both the trial and the appellate courts are 'confined to the reasons for disapproval of the subdivision plan stated by the planning board'" in its decision. Musto v. Planning Bd. of Medfield, 54 Mass. App. Ct. 831, 836 (2002), quoting from Massachusetts Broken Stone Co. v. Planning Bd. of Weston, supra at 741-742.
In the judge's thoughtful findings, he provided a detailed analysis of each of the board's six reasons for disapproval. His findings were supported by the evidence; we see no error. In addition, we agree, for the reasons he gave, that based on the six reasons given for disapproval, the board exceeded the scope of its authority. "[T]he board's statement of reasons for its decision falls seriously short of the statement 'in detail' required by G. L. c. 41, § 81U." North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432, 445 (1981).
Judgment affirmed.
By the Court (Grainger,
Rubin & Hanlon, JJ.),
Clerk Entered: October 14, 2014.