Opinion
15-P-673
03-29-2016
HERITAGE WHARF, LLC v. PLANNING BOARD OF DARTMOUTH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Heritage Wharf, LLC (Heritage), appeals from a summary judgment of the Land Court which dismissed its claims under G. L. c. 41, § 81BB, challenging the defendant planning board of Dartmouth's (board's) denial of Heritage's subdivision plan. Heritage contends that the judge erred for two reasons. First, Heritage argues that § 3.303(a) of the Dartmouth subdivision regulations (regulations) is void for vagueness because it allows the board to classify the street to be used in the development of a subdivision "in all doubtful cases." Second, Heritage argues that the judge erred in ruling that the classification of the proposed subdivision street was doubtful. We affirm.
Background. We summarize the undisputed facts as recited in the Land Court judge's memorandum and order, reserving certain facts for later discussion of the issues raised on appeal.
Heritage is the owner of a 2.67-acre parcel of land located on Elm Street in Dartmouth (the property). The property was located in a "limited business" zoning district under Dartmouth's zoning by-laws. This permitted restaurant, retail, and multi-family residential uses as of right. The previous owner, South Wharf, LLC (South Wharf), filed a preliminary subdivision plan (preliminary plan) with the board on June 2, 2006. At a public meeting on the preliminary plan, the board agreed with the planning director, Donald Perry, that the proposed subdivision should be designed to accommodate the most intense use allowed, i.e., commercial. The board voted and approved the preliminary plan, with modifications and conditions, and a certificate of action was issued on June 27, 2006.
The preliminary plan showed the street extension as containing a hammerhead turnaround; lots one and two were each abutting both Elm Street and the street extension, and lot three only abutted the street extension. The street extension was characterized as a "residential service street" as defined by the regulations. The preliminary plan also stated that waivers were sought with respect to right of way width, pavement radius, curbing, sidewalks, turnaround design, and paved width.
The certificate of action provided: "Adherence to commercial subdivision standards will be required since this is the more intense use allowed by zoning for the property. This would require at least a 24' wide pavement (normally 30', however to fit in with the Village, the 24' could be allowed). The r-o-w should be 50' to accommodate the road, sidewalk and trees. A full cul-de-sac to minimize congestion, sloped granite curbing and a sidewalk on both sides of the street (setback from edge of curb) is needed, as well as compliance with other subdivision standards; such as, monuments, trees, drainage, etc."
After a petition by residents of Dartmouth, the board approved a zoning change in the area of the property to a new maritime overlay district on October 17, 2006. On November 17, 2006, Heritage, after acquiring the property from South Wharf, filed a definitive subdivision plan for the property (the definitive plan). On December 19, 2006, Perry sent correspondence to Heritage informing them that the street extension needed to be designed to meet the commercial standards of the regulations. On February 12, 2007, at the public hearing on the definitive plan, Heritage's engineer, Alan Heureux, pointed out that to meet the commercial standards, certain buildings on Elm Street would need to be demolished or the cul-de-sac would need to extend beyond the sea wall. Heritage's attorney stated that they were prepared to limit their use to residential but preferred to keep the option open for commercial use.
In a letter dated February 23, 2007 fire department Chief Alcaidinho requested that the board require all roadways and cul-de-sacs to meet the commercial development standards of the regulations. He also stated that the fire department cannot agree to any changes from the town's specifications until it is known what type of development for which the property will be used.
On March 14, 2007, Heritage filed an amended definitive plan for the property (amended definitive plan) with the board. The amended definitive plan showed the street extension as having a right-of-way width of forty feet, with no sidewalks, and a hammerhead turnaround with prongs of less than fifty feet in length. A portion of the hammerhead turnaround was on part of the property that provided vehicular access to the boat ramp. The amended definitive plan was endorsed with a notation that the second lot will be for residential use only and shall have no more than two dwelling units. No waivers were sought from the regulations when the amended definitive plan was filed. At the April 2, 2007, public hearing, Perry noted the hammerhead turnaround did not contain prongs of at least fifty feet in length. The board voted on April 2, 2007, to disapprove the amended definitive plan and filed a certificate of action with the town clerk on April 3, 2007, which enumerated eleven reasons why the board disapproved the amended definitive plan.
Fire Chief Alcaidinho also stated he could not agree to the hammerhead turnaround because it would require fire trucks to back up as they turned around.
The eleven reasons are as follows:
1. The amended definitive plan failed to incorporate a full cul-de-sac as required for dead-end commercial or industrial streets under § 3.303(k) of the regulations. Nor did it meet the residential hammerhead standard of § 3.303(k).
2. The plan does not comply with § 3.303(a) of the regulations because it requires classifying the street as a commercial and industrial street.
3. The plan does not comply with § 3.303(c), which requires subdivision streets to have a curve within 150 feet of an intersection.
4. The plan does not provide adequate access for emergency vehicles, which is required by § 3.303(d).
5. The plan does not have a median island at the intersection and separate turning lanes as required by § 3.303(e) of the regulations.
6. The plan does not comply with the sixty-foot right of way as required by the § 3.303(i) of the regulations.
7. The plan did not have thirty-feet-wide pavement as required by § 3.303(i).
8. The plan did not have a berm that is granite or concrete as required by § 3.304(a).
9. The plan did not include guardrails pursuant to § 3.305(c), which are required adjacent to the drop-offs to the water .
10. The plan does not have sidewalks on both sides of the street as required by § 3.306.
11. Drainage and utility services for the plan need to be adjusted to meet the requirements for a commercial cul-de-sac compliant with the regulations.
Discussion. Heritage argues that § 3.303(a) of the regulations is void for vagueness because it allows the board to classify the street to be used in the development of a subdivision "in all doubtful cases." "The subdivision control law attaches such importance to planning board regulations as to indicate to us that they should be comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required of them and what standards and procedures will be applied to them. Without such regulations, the purposes of the law may easily be frustrated." Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 334 (1962). "A planning board exceeds its authority if requirements are imposed beyond those established by the rules and regulations." Beale v. Planning Bd. of Rockland, 423 Mass. 690, 696 (1996). "A planning board's subdivision rules and regulations thus define the standards that owners must meet for roads and utilities, as well as the grounds upon which a planning board may disapprove a plan." Ibid.
The judge did not err when he found that § 3.303(a) of the regulations is not void for vagueness. The Castle Estates, Inc. standard requires that regulations be clearly drafted so that the owner knows "what is or may be required of them" (emphasis supplied). 344 Mass. at 334. In the instant action, it was known to Heritage what may be required of them, as they were told specifically that the commercial standard would apply. Section 3.303(a) requires that subdivision streets "be classified for the purpose of establishing the applicable design and construction standards" for those streets. Section 3.303(a) then sets forth detailed definitions for each classification of subdivision street, including: residential service street, private residential lane, and commercial and industrial streets. If it is unclear what classification the street should be designated, the board retains some discretion to make the determination based on the standards promulgated in the regulations. The Castle Estates, Inc. standard was therefore satisfied because the board denied the amended definitive plan based on reasons in the regulations. See North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432, 444 (1981) ("the Castle Estates standard is offended when local boards have introduced reasons not specified in the published regulations" [emphasis supplied]).
The board was faced with a doubtful case here because the property was in a location that was zoned for commercial uses but the plan called for one of the lots to be residential. Although Heritage claims that the notation on the amended definitive plan restricted the lots so there was no doubtful case, the notation only restricted a single lot on the street, which would allow the other two lots of the proposed subdivision, which could be used for commercial purposes, to have access to the street. The board's decision to classify the subdivision street was a permissible exercise of its discretion because commercial use was permitted as of right and therefore the board had to anticipate commercial use. See North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. at 442-443.
Even if the current owners were to designate one lot as residential, that could not limit a future owner.
We also note that, even if we were to agree with Heritage on the two issues on appeal, we would still affirm the judge's affirmance of the board's decision to disapprove the amended definitive plan. See Nahigian v. Lexington, 32 Mass. App. Ct. 517, 522 (1992) ("We have found no case suggesting that, because some of its regulations are not clear, a planning board must approve a plan which is not in compliance with another of its regulations which is clear and which relates to a matter, such as the suitability of a way, properly within the planning board's concern"). The amended definitive plan failed to incorporate a full cul-de-sac as required for dead-end commercial or industrial streets under § 3.303(k) of the regulations, and it did not meet the residential hammerhead standard of § 3.303(k). Furthermore, the amended definitive plan failed to provide adequate access for emergency vehicles, which is required by § 3.303(d).
Judgment affirmed.
By the Court (Trainor, Rubin & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 29, 2016.