Opinion
16-P-1313
07-26-2017
Matthew R. GOULD & others v. PLANNING BOARD OF FALMOUTH & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The planning board of Falmouth (board) granted the request of the defendants Falmouth Hospitality, LLC, John Fay, and Robert Fay to modify a 1947 subdivision plan pursuant to G.L.c. 41, § 81W. The board approved a plan that "abandons" a portion of a subdivision road, Lantern Lane, where it intersects Main Street in Falmouth, and replaces it with an easement in the same location for the benefit of the other lot owners in the subdivision. Approval of the plan was conditioned on submission of a "written easement for access and utility purposes, to the Planning Board for approval, in form for recording at the Barnstable County Registry of Deeds." The board further required that "the applicant shall submit details of how the easement shall be maintained and improved to insure that access to Main Street is not impaired."
Section 81W, as amended through St. 1977, c. 473, provides in pertinent part:
"A planning board ... shall have power to modify, amend or rescind its approval of a plan of a subdivision, or to require a change in a plan.... All of the provisions of the subdivision control law relating to the submission and approval of a plan of a subdivision shall, so far as apt, be applicable to the approval of the modification, amendment or rescission of such approval and to a plan which has been changed under this section.
"No modification ... of the approval of a plan of a subdivision or changes in such plan shall affect the lots in such subdivision which have been sold or mortgaged in good faith and for a valuable consideration subsequent to the approval of the plan, or any rights appurtenant thereto, without the consent of the owner of such lots, and of the holder of the mortgage or mortgages, if any, thereon...."
The plaintiffs, owners of lots abutting Lantern Lane north of the area to be "abandoned," appealed the board's decision to the Land Court. The judge there concluded the plaintiffs had failed to demonstrate any harm affecting their lots from the discontinuation of a portion of Lantern Lane and affirmed the board's decision. On appeal to this court, the plaintiffs argue that the board exceeded its authority in approving the modification and that their lots will be "affected" as that term is used in § 81W, such that no modification may be granted without their consent. Substantially for the reasons stated by the Land Court judge, we affirm.
Prior plans to improve the Fays' lots with a hotel are not before us. There being no development plan before him, the Land Court judge rejected as premature the plaintiffs' claim that their easement will be overburdened. The plaintiffs do not pursue that claim on appeal.
Discussion. Lantern Lane, at its southern end, runs between two lots owned by the Fays and terminates at Main Street. Throughout the proceedings, the Fays have made no secret of the fact that the impetus behind the modification is their desire to develop their property abutting Main Street. On appeal, Falmouth Hospitality contends that pursuant to the local by-law, if Lantern Lane constitutes an "easement" instead of a "subdivision road" where it crosses the Fay lots, those lots can be combined and the land can be included in the square footage calculation of the lot area. In addition, zoning frontage and setback requirements would be eliminated. If the section of Lantern Lane remains a subdivision road, Falmouth Hospitality contends, it cannot include the square footage of the lane and it would have to meet setback requirements or obtain zoning relief. In the agreed statement of facts submitted to the Land Court, Falmouth Hospitality and the Fays conceded that they cannot interfere with the rights of the other owners of lots in the subdivision to use the portion of Lantern Lane that bisects the Fays' lots and they have proposed an access and utility easement for the other lot owners' benefit in the same location as the private forty-foot layout of Lantern Lane. For their part, the plaintiffs concede that the board's decision approving the modification does not impact the shape or area of their lots, affect drainage on Lantern Lane, or impose easements on the plaintiffs' lots.
Note 1 on the "Definitive Plan for Abandonment" states: "The purpose of this plan, in conjunction with other documents, is to abandon private road rights in a portion of Lantern Lane and to create an access and utility easement in place as well as to consolidate the four existing lots and abandoned roadway into a single lot."
Neither the board nor the Fays filed an appellate brief.
"Lot Area" is defined in the Falmouth zoning by-law as "[t]he horizontal area of the lot exclusive of any area in a street or recorded way open to public use." The Land Court judge accepted the Fays' and Falmouth Hospitality's interpretation of the by-law but noted in his memorandum on the plaintiffs' motion to amend or clarify the judgment that resolution of whether the lots may be combined for frontage and lot area calculations was not material to the affirmance of the board's decision and that the question of whether a combined lot is "buildable" and if so, to what extent, is a question for zoning authorities. Whether the by-law allows the inclusion of the property which comprised the portion of Lantern Lane that divided the Fays' lots in the calculation of lot area when it remains the functional equivalent of a subdivision road is irrelevant to the issues before us, and we do not pass on whether this interpretation of the local by-law is correct.
We first address whether the plaintiffs' consent was required before the board could approve the plan abandoning the southern portion of Lantern Lane and replacing it with an access and utility easement. We agree with the judge that our decision in Patelle v. Planning Bd. of Woburn, 20 Mass. App. Ct. 279, 280 (1985), is instructive. In Patelle, a local planning board approved three modifications to an existing subdivision plan, including the transformation of a cul-de-sac into a through street. We rejected an argument that the modification required the consent of others in the subdivision, concluding that the Legislature determined only modifications "which impaired the marketability of titles" required the consent of bona fide purchasers. Id. at 282. "Examples would be modifications which altered the shape or area of lots, denied access, impeded drainage, imposed easements, or encumbered the manner and extent of use of which the lot was capable when sold. The target of the statute was not those changes which might have an indirect qualitative impact, such as alteration of a dead-end street into a through street." Ibid. We held that concerns for traffic pattern, view, and over-all neighborhood density, in the absence of covenants or other land use controls, do not "affect" previously sold lots and are "matters with which § 81W is unconcerned." Id. at 283. Finally, we said that the subdivision control law does not require "inflexible retention of aspects of a recorded subdivision plan that do not have direct and tangible impact ... on the property rights of lot purchasers." Id. at 284.
Here, the judge found that there was no persuasive evidence that the approved modification would affect the plaintiffs' rights within the meaning of § 81W. Indeed, with provisions in the easement requiring the Fays and their successors and assigns to maintain the easement, the judge concluded the plaintiffs will actually have greater rights than those they previously enjoyed. We agree. Prior to the modification, the plaintiffs in essence had easement rights over the portion of Lantern Lane being abandoned, and those easement rights will remain the same. That zoning requirements might now differ is not a concern of the subdivision control law. The plaintiffs "acquired no rights through covenants, easements, or other tool of private land use control," and in the absence of showing of a loss of utility of their lots, they are not affected in the statutory sense. Patelle, 20 Mass. App. Ct. at 283.
The Goulds' deed has an express right to pass and repass over the entire length of Lantern Lane, and the Fays concede that the Tilliers enjoy the same rights.
As the Land Court judge points out at note 23 of his decision, " '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 Bd. of Stow, 79 Mass. App. Ct. 447, 454 (2011)." That modification of a subdivision results in a change in zoning requirements is irrelevant.
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The plaintiffs claim that the board exceeded its authority in approving the modification. The board's authority comes from § 81W. A planning board lacks discretion to disapprove a plan not shown to violate the reasonable rules and regulations of the planning board, recommendations of the board of health, or the local zoning by-law. Musto v. Planning Bd. of Medfield, 54 Mass. App. Ct. 831, 836 (2002). The same standards apply to modifications; denial of a modification must be grounded in a failure to conform to the rules and regulations of the planning board or the recommendations of the health board or officer. See G.L.c. 41, §§ 81U, 81W. The plaintiffs simply make no such argument and have not shown that transforming the southern end of Lantern Lane into an easement renders it any less adequate to provide access to the subdivision.
Finally, the plaintiffs' suggestion that the board lacks authority to approve an easement is belied by the local subdivision regulation, § 305-25, which expressly provides that in the context of approving subdivision plans, the board may require, and presumably approve, certain easements. Further, contrary to the plaintiffs' argument, we discern nothing in the proposed easement that reduces the width of the easement.
Judgment affirmed.