Lakeside Builders v. Planning Bd.

• Decision Date: 27 December 2002
• Docket Number: No. 00-P-1700.,00-P-1700.
• Citation: 780 N.E.2d 944,56 Mass. App. Ct. 842
• Parties: LAKESIDE BUILDERS, INC., & another<SMALL><SUP>1</SUP></SMALL> v. PLANNING BOARD OF FRANKLIN & others.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

Page 944

780 N.E.2d 944

56 Mass. App. Ct. 842

LAKESIDE BUILDERS, INC., & another¹ v. PLANNING BOARD OF FRANKLIN & others.²

No. 00-P-1700.

Appeals Court of Massachusetts, Suffolk.

Argued September 5, 2002.

Decided December 27, 2002.

Mark C. O'Connor, Boston, for the plaintiffs.

Mark J. Lanza, Town Attorney, for the defendants.

Present: CYPHER, McHUGH, & KAFKER, JJ.

CYPHER, J.

Lakeside Builders, Inc. and Mastro Co., Inc. (collectively Lakeside) appeal from a Land Court judgment upholding the decision of the Franklin Planning Board (the board) to disapprove Lakeside's definitive subdivision plan. In September, 1997, Lakeside filed an application for approval of a definitive subdivision plan. Lakeside proposed to subdivide a seventeen acre parcel of land (locus) into eight lots. Lakeside sought four waivers from the board's subdivision regulations regarding (1) the maximum length of dead-end streets; (2) the center-line grade of streets; (3) the number of sidewalks; and (4) the roadway cross-sections. The board disapproved Lakeside's definitive plan and denied three of the four waiver requests.³ Lakeside appealed the board's decision to the Land Court pursuant to G.L. c. 41, § 81BB. The Land Court affirmed the board's decision.

Lakeside appeals from the Land Court's decision, arguing that both the board and the Land Court erred on several grounds and that the plan, therefore, should be approved. We conclude that the Land Court's decision was supported by the evidence and that the court did not err in its findings and conclusions.

1. The undisputed facts. On September 22, 1997, the board disapproved Lakeside's preliminary plan, as well as a revised preliminary plan submitted at the hearing that date, because the plans did not comply with the dead-end street length regulation. On September 30, 1997, Lakeside applied for approval of the definitive plan entitled "Shepard's Brook Estates II" (the plan). The board held a public hearing on October 20, 1997.

The plan shows a subdivision road labeled "Road A," approximately 1,200 feet angle with Mastro Drive, a previously approved subdivision road, which itself terminates in a cul-de-sac just beyond this intersection. The nearest through street to Road A and Mastro Drive is Partridge Street, which is connected to Mastro Drive by Ginny Lane. Partridge Street is approximately 3,100 feet from the further end of proposed Road A.

The plan proposed eight single-family house lots on seventeen acres of land. The locus is bordered on its north, east, and west by residential neighborhoods, and on the east and south by wetlands.

Lakeside requested waivers from four of the board's regulations: (1) section 300-10(D)(5), which provides that street centerline grades may not deviate more than seven feet from existing grade conditions; (2) section 300-10(E)(4), which imposes a maximum length of 600 feet for dead-end streets; (3) sections 300-9(B)(1) and 300-10(B)(5) and Appendix 1, which regulate roadway cross-sections; and (4) section 300-13(A), which generally requires sidewalks on both sides of a subdivision road. As did the Land Court judge, we concern ourselves chiefly with the issue of the length of dead end streets — Road A here.

The board voted to deny the plan and filed its certificate of disapproval with the town clerk. In previous years, the board had granted approximately twenty waivers from section 300-10(E)(4), the dead-end street length regulation.

Lakeside appealed the board's decision to the Land Court, complaining that the board was arbitrary, capricious and unreasonable when it denied the dead-end street length, center-line grade, and sidewalk waivers. The board also denied the plan on the basis of noncompliance with section 300-10(B)(1) of the board's regulations, which concerned the safety of pedestrain and vehicular traffic. After a trial de novo, the Land Court issued its decision affirming the board's denial of the plan.

2. Discussion. The judge's findings will not be disturbed unless they are clearly erroneous. Hamilton v. Planning Bd. of Lexington, 4 Mass.App.Ct. 802, 803, 345 N.E.2d 906 (1976). We review the board's underlying decision to deny a waiver and determine whether that decision is premised upon "a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." Davis v. Zoning Bd. of Chatham, 52 Mass.App.Ct. 349, 355, 754 N.E.2d 101 (2001), quoting from Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 486, 709 N.E.2d 798 (1999). The burden of proof is on the party challenging a planning board's action. Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass.App.Ct. 545, 548, 336 N.E.2d 388 (1975). "When reviewing a planning board's disapproval of a definitive subdivision plan, both the Land Court and the appellate courts are `confined to the reasons for disapproval of the subdivision plan stated by the planning board.'" Massachusetts Broken Stone Co. v. Planning Bd. of Weston, 45 Mass.App.Ct. 738, 741-742, 701 N.E.2d 664 (1998), quoting from Canter v. Planning Bd. of Westborough, 4 Mass.App.Ct. 306, 307, 347 N.E.2d 691 (1976).

The judge reasoned as follows. Only once, eight years earlier, had the board previously granted a dead-end street length waiver for a plan that was substantially similar to Lakeside's plan. Otherwise, prior grants of dead-end street length waivers were for plans in which the dead-end street did not extend as far from the nearest through street as Road A extended from its connection to Partridge Street.⁴

The judge noted that, in the past, the board appeared to have encouraged deadend streets rather than through streets. In certain instances, the board had requested developers not to construct a portion of a road layout in order to prevent any through connection to the abutting parcel, neighboring subdivision, or nearest through street. The judge found, however, that the board's perspective concerning dead-end streets had recently changed, as reflected in goal 2 of the Franklin master plan and its subsidiary objectives, which generally favor through streets over dead-end streets so as to improve overall traffic flow.⁵ The board's new emphasis is borne out by the fact that it denied three other plans for the same reason (dead-end streets that exceeded the 600 foot limit) shortly before and after the denial of Lakeside's plan. The board has, of course, the right to change its planning objectives.

The judge also found that the board's concern regarding such a long dead-end street was buttressed by the fact that, in its earlier consideration of Lakeside's Shepards Brook Estates I plan, the board had expressed its desire for a road connection between the locus and the property situated to the north of the locus. The judge found that the board had been consistent in its request for a through connection of the proposed roads over the course of its review of the development.

a. Dead-end street length waiver. Lakeside contends that denial of the street length waiver was arbitrary. "A planning board ... enjoys broad discretion under G.L. c. 41, § 81R, to waive strict compliance with the requirements of its subdivision rules and regulations when such waiver is in the public interest and not inconsistent with the intent and purpose of the subdivision control law; it is not, however, required to grant a waiver." Musto v. Planning Bd. of Medfield, 54 Mass.App.Ct. 831, 837, 768 N.E.2d 588 (2002), citing Miles v. Planning Bd. of Millbury, 404 Mass. 489, 490 n. 4, 536 N.E.2d 328 (1989). Refusal to grant a waiver, in certain instances, can constitute an abuse of discretion. See Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass.App.Ct. 79, 85-86, 341 N.E.2d 916 (1976).

Lakeside argues that the board had an established history and practice of granting dead-end street length waivers and, therefore, the board acted arbitrarily and capriciously or otherwise abused its discretion in refusing to grant the waiver for Road A.⁶ Lakeside points to the fact that the board granted twenty-one waivers for subdivisions with dead-end streets longer than 600 feet in the fourteen-year period preceding the subject denial. Lakeside further notes that these waivers were all allowed despite the fact that the dead-end street regulation does not expressly provide the board with discretion to grant waivers. Lakeside relies on Musto, supra, and Colangelo v. Board of Appeals of Lexington, 407 Mass. 242, 552 N.E.2d 541 (1990), in support of its argument that, based on its past practice of granting waivers, the board was arbitrary in denying the waiver.

In Musto, supra at 832-835, 768 N.E.2d 588, the planning board approved a preliminary plan with certain conditions (including that the proposed subdivision road not connect with an abutting subdivision, but rather, end in a cul-de-sac) but then denied the definitive plan even though it incorporated the board's request for a dead-end road. We agreed with the trial judge that the planning board in Musto acted arbitrarily because, among other reasons, the planning board had just approved a substantially similar waiver of the dead-end street length regulation.⁷ Id. at 835, 768 N.E.2d 588.

In Colangelo, supra at 244, 552 N.E.2d 541, the other case relied upon, the zoning board denied the plaintiffs variance request for an exemption from a three-acre minimum lot size requirement because of the supposed effect the undersized lot would have on traffic. Again, the court agreed with the trial judge's finding that the zoning board had abused its discretion because, around the same time it had denied the plaintiffs variance request, it had approved similar variances for other nearby sites, within only one-half mile or less of the plaintiffs site, that had greater impacts on traffic than the plaintiffs site would have had. Id. at 246, 552 N.E.2d 541.

Thus, Musto and Colangelo are distinguishable. Here, Road A was to connect to Mastro Drive, which itself functioned as a...