Opinion
No. 16–P–114.
10-31-2016
Alan SIOK & another v. PLANNING BOARD OF LUDLOW & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendant developer AMM Group LLC (AMM) sought to modify a subdivision plan by eliminating from the plan an unbuilt roadway known as the “spur.” The planning board of Ludlow (the board) approved the modified plan after a public hearing. Plaintiffs Alan Siok and Paula Siok (collectively, the Sioks), owners of an undeveloped landlocked parcel abutting the subdivision, appealed to the Land Court claiming (1) that the board exceeded its authority in allowing the modified plan, and (2) that they had acquired an easement by estoppel over the unbuilt spur. After a trial, a judge affirmed the board's decision allowing modification of the plan, and this appeal followed. We affirm.
Background. We summarize the undisputed facts found by the Land Court judge. The Sioks are the owners of a landlocked parcel of undeveloped land that abuts a subdivision first approved by the board in 2007. The 2007 plan created ten lots with frontage on a 1,050–foot–long road known as Avelino Way, which ends in a cul-de-sac. The 2007 plan also showed a second roadway, the spur, which extended 235 feet from Avelino Way and ended at the land now owned by the Sioks. The board's 2007 approval of the plan did not require AMM to grant or to reserve an easement in the spur for the benefit of the town of Ludlow (town) or the abutting property owners. Nor did the plan require the spur road to be built, and it never was.
The Sioks purchased their twelve-acre lot in 2009 for $38,000. The property has no frontage on any existing roadway. At some point prior to their purchase, the Sioks discussed with the town planner access to their lot via the spur. There had also been discussions between the Sioks and representatives of the board concerning a so-called “concept plan” to increase road access in the general area, which had seen the development of a number of subdivisions. The town planner informed the Sioks that if the spur road was built and if it was accepted by the town as a public way, they could access their property via the subdivision.
The judge allowed a motion in limine to exclude a copy of the concept plan that had never been filed with the board.
In 2012, AMM sought to alter the 2007 plan to remove the spur and to add that land to the abutting subdivision lots. The initial attempt may have been improper procedurally, so in 2013, AMM sought the same relief in an application to the board for a modification of the 2007 plan pursuant to G.L. c. 41, § 81W. After a public hearing, the board approved the 2013 plan, modifying the 2007 plan by eliminating the spur. The board also approved waivers of the town's subdivision rules and regulations —as pertinent here, a waiver of the requirement of a second means of access to a subdivision exceeding eight lots.
AMM first filed an approval not required plan to make the proposed changes. The Sioks challenged the use of this procedure in a mandamus action, but voluntarily dismissed it when the request for modification of the 2007 plan was filed with the board.
“A planning board, on its own motion or on the petition of any person interested, shall have power to modify, amend or rescind its approval of a plan of a subdivision.... 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.” G.L. c. 41, § 81W, inserted by St.1953, c. 674, § 7.
“A planning board may in any particular case, where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law, waive strict compliance with its rules and regulations....” G.L. c. 41, § 81R, inserted by St.1953, c. 674, § 7.
On October 21, 2013, the Sioks appealed the approval of the 2013 plan to the Land Court pursuant to G.L. c. 41, § 81BB. After a bench trial, which included a view of the subdivision, the judge issued a thorough and well-reasoned decision affirming the board's approval of the 2013 plan.
Discussion. “Upon appeal, we accept a trial judge's findings of fact unless they are ‘clearly erroneous.’ “ Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014) (citation omitted). “Our review of a trial judge's conclusions of law, however, is de novo.” Ibid.
1. Waiver. The Sioks claim that the judge erred in concluding that the board acted “within its authority and the proper exercise of its discretion in granting a waiver from the requirement that a subdivision with more than eight lots have two entrances from an existing roadway.” We disagree. “[A] planning board enjoys broad discretion to waive strict compliance with its rules and regulations where the waiver is in the public interest and is not inconsistent with the intent and purpose of the subdivision control law.” Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517, 529 (2009). “A planning board's decision to grant or deny a waiver will be upheld unless premised upon ‘a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’ “ Ibid. (citation omitted). “The burden of proof is on the party challenging a planning board's action.” Lakeside Builders, Inc. v. Planning Bd. of Franklin, 56 Mass.App.Ct. 842, 845 (2002). See Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass.App.Ct. 545, 548 (1975).
Here, the judge concluded that the board's grant of a waiver in 2013 was a recognition that the board had effectively already granted the waiver in 2007, when it first approved the subdivision with only one entrance. See Meyer v. Planning Bd. of Westport, 29 Mass.App.Ct. 167, 170 (1990) (“[A] planning board is not required to specify and list in writing those rules and regulations which it has waived”). Moreover, the judge correctly observed that construction of the spur roadway would open the Sioks' parcel to the development of additional lots without adding a second entrance on an existing roadway. This would create an even greater deviation from the two-entrance rule than existed with the spur eliminated from the plan. In these circumstances, the board acted within its discretion in concluding that waiver of the two-entrance rule was in the public interest and not inconsistent with the intent or the purpose of the subdivision control law. Therefore, we see no error in the judge's conclusion that the board did not exceed its authority and the proper exercise of its discretion when it granted the waiver.
2. Estoppel. The Sioks also contend that the judge erred in rejecting their claim to an easement by estoppel over the spur. More specifically, they argue that an easement by estoppel was created by their reliance on the town planner's statement that if the spur was built, and if it was accepted by the town as a public way, the Sioks could use it to access their property. We disagree.
“Generally, the doctrine of estoppel is not applied against the government in the exercise of its public duties, or against the enforcement of a statute.” Gamache v. Mayor of N. Adams, 17 Mass.App.Ct. 291, 294 (1983). Moreover, “the doctrine of estoppel cannot stay the hand of a municipality in enforcing its zoning laws.” Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 162 (1962). “Massachusetts cases recognizing that an easement may be created by estoppel ... deal with the rights of grantees or their successors in title against their grantors and their successors in title.” Patel v. Planning Bd. of N. Andover, 27 Mass.App.Ct. 477, 481–482 (1989). See Blue View Constr., Inc. v. Franklin, 70 Mass.App.Ct. 345, 354–356 (2007).
Here it is undisputed that the Sioks were not grantees seeking to enforce their rights against a grantor. As the Land Court judge summarized, “where the property upon which the easement was sought to be imposed did not come from the same grantor as the property sought to be benefitted, there [is] no valid argument for imposition of an easement by necessity, by implication, or by estoppel.” We discern no error in this conclusion and, on the facts before us, decline to expand the doctrine of easement by estoppel as the Sioks request.
We also note that because any statements by the town planner regarding use of the spur for potential access were conditioned on the road being built and approved by the town as a public way, reliance on those statements would not have been reasonable.
Costs. We do not view the appeal to be frivolous, as the defendants claim. Therefore, to the extent they seek damages pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979), the request is denied.