Fairbairn v. Planning Bd. of Barnstable

• Decision Date: 04 March 1977
• Parties: Robert A. FAIRBAIRN et al., trustees v. PLANNING BOARD OF BARNSTABLE. Appeals Court of Massachusetts, Barnstable
• Court: Appeals Court of Massachusetts

Page 668

360 N.E.2d 668

5 Mass.App.Ct. 171

Robert A. FAIRBAIRN et al., trustees v. PLANNING BOARD OF BARNSTABLE.

Appeals Court of Massachusetts, Barnstable.

Argued Nov. 10, 1976.

Decided March 4, 1977.

James J. Marcellino, Boston (Brian A. O'Connell, Worcester, with him), for plaintiffs.

Henry L. Murphy, Jr., Town Counsel, Hyannis (John Murphy, Andover, with him), for defendant.

Before HALE, C.J., and GRANT and BROWN, JJ.

GRANT, Justice.

This case arises out of the plaintiffs' efforts to obtain the necessary approvals under the Subdivision Control Law (G.L. c. 41, §§ 81K--81GG) of a plan by which the plaintiffs propose to subdivide into 169 residential house lots the major portion of a tract of some 230 acres of land owned by the plaintiffs and lying in the westerly part of the town of Barnstable. The plaintiffs filed a definitive subdivision plan with the planning board on June 18, 1973. As required by G.L. c. 41, § 81U, a copy of that plan was duly filed with the town's board of health. The planning board conducted a public hearing on the plan (G.L. c. 41, § 81T) on July 23, 1973. By its letter to the planning board of August 13, 1973, the board of health indicated its disapproval of the plaintiffs' plan for reasons which we shall consider in part at a later point in this opinion. On the same day the members of the planning board voted unanimously to disapprove the plan. By its letter of August 14 to the town clerk, the planning board stated that it had 'adopt(ed) the report of the (b)oard of (h)ealth as a part of its reasons for voting disapproval' and listed five additional reasons for its disapproval. The plaintiffs duly appealed to the Superior Court from the decision of the planning board. G.L. c. 41, § 81BB. A judge of that court entertained oral and documentary evidence, filed findings of fact and conclusions of law, and ordered the entry of a judgment sustaining the decision of the planning board. The plaintiffs have appealed from the ensuing judgment. The evidence is reported. We affirm the judgment.

1. The course followed by the judge in hearing and deciding the plaintiffs' appeal was procedurally correct. It is well settled that the duties of the Superior Court in hearing and deciding appeals under § 81BB are to conduct a hearing de novo, find the relevant facts, and, confining its review to the reasons stated by the planning board for its disapproval of the subdivision plan (Canter v. Planning Bd. of Westborough,--- Mass.App. ---, --- ^a, 347 N.E.2d 691 (1976)), determine the validity of the board's decision. Rettig v. Planning Bd. of Rowley, 332 Mass. 476, 478--489, 126 N.E.2d 104 (1955). Kuklinska v. Planning Bd. of Wakefield, 357 Mass. 123, 130, 256 N.E.2d 601 (1970). Mac-Rich Realty Constr. Inc. v. Planning Bd. of Southborough, --- Mass.App. ---, --- ^b, 341 N.E.2d 916 (1976). See also Strand v. Planning Bd. of Sudbury,--- Mass.App. ---, --- - --- ^c, 385 N.E.2d 842 (1977). It is also settled that the developer has the burden of proving that the planning board has exceeded its authority in disapproving the plan. Mac-Rich Realty Constr. INC. V. PLANNING BD. OF SOUTHBOROUGH, --- MASS.APP. AT --- , 341 N.E.2D 916^D.

2. Basically, the first reason given by the planning board for disapproving the plaintiffs' plan was that he plan had already been disapproved by the board of health for reasons stated by the latter board in its letter of August 13, 1973. The planning board's action in this respect was correct. A planning board may not approve a subdivision plan which does not comply with the recommendation of the board of health; the planning board's options in such a case are limited to those of disapproving the plan or modifying it in such fashion as to bring it into conformity with the recommendation of the board of health. ¹ G.L. c. 41, §§ 81M and 81U. See United Reis Homes, Inc. v. Planning Bd. of Natick, 359 Mass. 621, 622--623, 270 N.E.2d 402 (1971). Compare Rounds v. Water & Sewer Commrs. of Wilmington, 347 Mass. 40, 43, 196 N.E.2d 209 (1964); Garabedian v. Water & Sewerage Bd. of Medfield, 359 Mass. 404, 406, 269 N.E.2d 275 (1971).

3. The planning board's second reason for disapproving the plaintiffs' plan was that the '(b)oard finds that based on the evidence presented at the public hearing regarding soil structure, on-site examination by (b)oard (m)embers, and the lack of adequate proof offered by the developer, warrants the finding that the proposed onsite sewage disposal facilities are not satisfactory pursuant to Section III, Paragraph 4, Subparagraph (C) 3 of the Subdivision Rules and Regulations.' That section reads: 'Any lot so located that it cannot be served by a connection to a municipal sewer system shall be provided with on-site sewerage disposal facilities satisfactory to the Board of Health and the Planning Board' (emphasis supplied). We need not decide whether so much of this rule or regulation as purports to require the satisfaction of the planning board is sufficiently definite to apprise developers 'in advance what is or may be required of them and what standards and procedures will be applied to them' (see Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 331--334, 182 N.E.2d 540, 543--545 (1962); Chira v. Planning Bd. of Tisbury, --- Mass.App. ---, --- - --- ^e, 333 N.E.2d 204), because we are of opinion that the planning board has misconceived its duties and functions in a case such as the present, where the proposed development lies entirely within in area which is not served by municipally owned sewers and in which an individual sewage disposal system will have to be constructed on each house lot.

The first sentence of G.L. c. 41, § 81M, recites that '(t)he subdivision control law has been enacted for the purpose of protecting the safety, convenience and welfare of the inhabitants of the cities and towns . . . by regulating the laying out and construction of ways in subdivisions . . . and ensuring sanitary conditions in subdivisions . . ..' That sentence, standing by itself, contains no allocation of duties and functions as between a planning board and a board of health in 'ensuring sanitary conditions in subdivisions.' The second sentence of § 81M speaks of a planning board's exercising its powers under the Subdivision Control Law 'with due regard . . . for securing adequate provision for . . . sewerage,' but only in the context of such a board's other duties and functions with respect to the ways in a subdivision. The first sentence of G.L. c. 41, § 81U (as most recently amended by St.1972, c. 749, § 1), requires a developer to submit a copy of his definitive subdivision plan to the board of health when he submits the original of the plan to the planning board. The second sentence of that section contemplates that the board of health 'shall report to the planning board in writing approval or disapproval of said plan, and in the event of disapproval shall make specific findings as to which, if any, of the lots shown on such plan cannot be used for building sites without injury to the public health, and include such specific findings and the reasons therefor in such report, and, where possible, shall make recommendations for the adjustment thereof. . . .' That same sentence concludes with a proviso to the effect that a planning board may proceed to act on a subdivision plan without receiving any report from the board of health 'if a municipal sewerage system will service the proposed subdivision.' The fourth sentence of § 81U is to the same general effect as the proviso of the second sentence; it contemplates the possibility that a planning board may not have the board of health's report in hand by the time of the public hearing required by § 81T. The fourth sentence of § 81U also contains the prohibition of a planning board's overriding the recommendation of a board of health which has already been discussed in part 2 of this opinion. That prohibition is underscored by the third paragraph of § 81U, which provides that '(i)f the report of the board of health . . . shall so require, the approval by the planning board shall be on condition that no building or structure shall be built or placed upon the areas designated without consent by such board of health . . ..'

Reading the foregoing provisions together and in harmony with each other, we conclude that the determination of all health questions with respect to the disposal of sewage in a subdivision which will not be connected to a municipal sewer is vested exclusively in the board of health and that so much of the planning board's rule or regulation III, (4), (C), 3, as looks to the contrary is invalid as 'inconsistent with the subdivision control law' within the meaning of G.L. c. 41, § 81Q. It follows that the second reason given by the planning board for its disapproval of the plaintiffs' plan cannot stand.

4. The critical portion of the third reason given by the planning board for its disapproval of the plan was that the proposed storm drains, culverts and related installations and the proposed sewage disposal systems 'are not adequate to dispose of surface water and sewage in such a way as (not to) affect adjacent lands and lands in the subdivision which are wetlands and are subject to the Wetlands Protection Act.' To the extent that this finding or reason is concerned with the proper disposal of sewage, it is legally irrelevant for the reasons already discussed in part 3 of this opinion. The only rule or regulation of the planning board which appears to have any relevance to the situation is § V, (10), (A), which provides as follows: 'Storm drains, culverts, ditches, and related installations, including catch basins, gutters and manholes shall be installed as necessary to provide adequate disposal of surface water, from or in the subdivision and adjacent land; as per the Town Engineering Department's requirements' (emphasis supplied). The board made no finding that ...