Nahigian v. Town of Lexington, 90-P-1377

• Decision Date: 13 May 1992
• Docket Number: No. 90-P-1377,90-P-1377
• Parties: Harold NAHIGIAN 1 v. TOWN OF LEXINGTON (and a companion case 2 ).
• Court: Appeals Court of Massachusetts

Page 1095

591 N.E.2d 1095

32 Mass.App.Ct. 517

Harold NAHIGIAN ¹ v. TOWN OF LEXINGTON (and a companion case ²).

No. 90-P-1377.

Appeals Court of Massachusetts,

Middlesex.

Argued March 10, 1992.

Decided May 13, 1992.

Acheson H. Callaghan, Jr., Boston (Martha M. Walz with him), for defendants.

Brian M. Hurley, Boston, for plaintiff.

Before ARMSTRONG, FINE and JACOBS, JJ.

FINE, Justice.

Harold Nahigian, trustee of the Tracer Lane II Realty Trust (Nahigian), brought two actions in the Land Court relating to a parcel of undeveloped land he owns, all but a small portion of which is in the town of Lexington. In one action against Lexington's planning board, he sought review, pursuant to G.L. c. 41, § 81BB, of the board's decision denying approval of a subdivision plan. In the other against the town of Lexington, he sought a declaratory judgment that the zoning of a portion of his land for residential use was invalid. The cases were consolidated for trial before a judge who ruled in favor of Nahigian in both cases. Lexington and the board appealed.

1. The subdivision case. The relevant facts are undisputed. Nahigian owns a thirty-acre parcel of land. As depicted on the accompanying diagram, an 11.1-acre portion of the locus, some of it wetlands and a small piece of it (.18 acre) in Waltham, abuts Route 128. To the southeast of the locus in Waltham is a commercial development, also abutting Route 128. Access to the commercial development is via Tracer Lane which commences at Trapelo Road in Waltham. The only access to the locus would be by an extension of Tracer Lane.

Nahigian applied to the board for approval of a definitive subdivision plan showing Tracer Lane as a dead-end street extending into the locus to provide access to a proposed office building planned for the site. The board denied approval of the plan on several grounds, among which was the length of the proposed extension of Tracer Lane. Among the design standards in the board's "Development Regulations," which purported to include the town's rules and regulations under the subdivision control law (see G.L. c. 41, § 81Q), was one limiting dead-end streets to 650 feet from the closest intersecting through street. Tracer Lane, as proposed by Nahigian, would have extended 2,575 feet from the intersection with Trapelo Road. Nahigian's request that the board waive the design standard relating to dead-end streets with respect to his project was denied.

Nahigian appealed to the Land Court claiming, among other things, that Lexington's subdivision rules and regulations were not sufficiently definite to apprise him in advance of the applicable standards and requirements. Alternatively, he contended that his plan did not violate the stated regulations and that, if it did, the board was unreasonable in refusing to waive the regulations with respect to his plan. The judge based her decision in favor of Nahigian on her conclusion that the regulations did not meet the requirement that they "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." Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 334, 182 N.E.2d 540 (1962).

The subdivision control statute contemplates the adoption by a local planning board of rules and regulations specifically pertaining to subdivisions of land. G.L. c. 41, §§ 81M & 81Q. Compare Pieper v. Planning Bd. of Southborough, 340 Mass. 157, 163, 163 N.E.2d 14 (1959); Lyman v. Planning Bd. of Winchester, 352 Mass. 209, 212, 224 N.E.2d 493 (1967); North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432, 438, 416 N.E.2d 934 (1981). Lexington's "Development Regulations" are not such regulations. Adopted in 1986, they combine, supposedly "for ease of administration," all the policies, procedures, and design standards with respect to special permits, site plan approval, various other zoning matters, and subdivision control. There is nothing to prevent a set of planning board regulations from dealing with subject matters broader than subdivision approval requirements, but such requirements should be set forth clearly. There are no sections in Lexington's regulations exclusively devoted to procedures or standards for approval of subdivisions, and the terminology used blurs the distinction between subdivision control and zoning by confusing the terms "definitive site development plan" and "definitive subdivision plan." A number of the design standards set forth in the regulations concern matters which, according to G.L. c. 41, § 81Q, are improper considerations for purposes of subdivision control. References to commercial subdivisions appear in two section headings, entitled "definitive subdivision plan for commercial, industrial or other non-residential development," included in the chapter relating to requirements for applications and procedures. In each instance, the section heading is followed only by the word "reserved." However, an introductory section states that the regulations are to apply to "planned residential and commercial development," and other sections of the regulations provide that "[n]o subdivision shall be approved unless it complies with these [r]egulations," and that "[n]o person shall make a subdivision ... unless ... a definitive plan has been submitted and approved" in accordance with the regulations.

The judge described the regulations and her reasoning as follows:

"The [p]lanning [b]oard by including within one comprehensive document and without differentiation the regulations relating not only to subdivision plans but to site plans and special permits has failed to distinguish between the applicability of each set of regulations to the project under consideration. For that reason and the difficulty even for experienced students of planning board regulations such as myself, the regulations are so confusing that it is impossible to determine which are to apply to any particular plan. This difficulty is compounded by the failure of the regulations to use the statutory subdivision terms so that it is unclear in any particular instance whether the [p]lanning [b]oard is referring to site plans or to subdivision plans. It is further compounded in the present instance by the reserved sections which particularly relate to commercial subdivisions so it is possible that the [p]lanning [b]oard in drafting the rules and regulations did not intend that commercial subdivisions be subject to them. The proliferation of unanswered questions leads me to find and hold that the so called development regulations of the defendant do not meet the Castle Estates standard and must be held to be invalid. Chira v. Planning Board of Tisbury, 3 Mass.App.Ct. 433, 438 (1975)."

The judge ordered that the development regulations no longer be enforced but stayed execution of the order as applied to applicants other than Nahigian pending this appeal or until the board amended or revised the regulations.

To some extent we agree with the judge's criticism of the regulations. The only design standard in the regulations which the board claims on appeal as a proper basis for its disapproval of the plan, however, is the one relating to the maximum length of dead-end streets. Such a standard is one properly considered by a planning board in determining whether to approve a subdivision plan. See Francesconi v. Planning Bd. of Wakefield, 345 Mass. 390, 391-393, 187 N.E.2d 807 (1963); Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass.App.Ct. 79, 85, 341 N.E.2d 916 (1976); Wheatley v. Planning Bd. of Hingham, 7 Mass.App.Ct. 435, 450-451, 388 N.E.2d 315 (1979). Compare Sparks v. Planning Bd. of Westborough, 2 Mass.App.Ct. 745, 747-749, 321 N.E.2d 666 (1974). The requirement is set forth in clear and unambiguous terms. Nahigian understood what the regulation required and assumed throughout the proceedings that it pertained to his application for approval of a commercial subdivision. Compare Miles v. Planning Bd. of Millbury, 29 Mass.App.Ct. 951, 953-954 n. 4, 558 N.E.2d 1150 (1990). Otherwise, he would not have sought a specific waiver of the dead-end street requirement. Nahigian's plan did not comply with that standard. ³

The issue before us is whether the board could reject a plan based upon a clearly stated requirement, understood by the applicant to affect his plan, notwithstanding that the requirement was included in a generally confusing set of regulations. Unlike the trial judge, we think the board could properly reject the plan on the basis of the clearly stated dead-end street requirement included in the regulations.

There are numerous cases in which it was held that a planning board could not reject a subdivision plan, or impose conditions on its approval of a plan, based upon considerations either not addressed in its regulations or addressed in terms so vague that they did not meet the requirements of the Castle Estates case. See Pieper v. Planning Bd. of Southborough, 340 Mass. at 163, 163 N.E.2d 14; Chira v. Planning Bd. of Tisbury, 3 Mass.App.Ct. at 438, 333 N.E.2d 204; Canter v. Planning Bd. of Westborough, 4 Mass.App.Ct. 306, 309, 347 N.E.2d 691 (1976); Fairbairn v. Planning Bd. of Barnstable, 5 Mass.App.Ct. 171, 177, 178-179, 360 N.E.2d 668 (1977). Contrast North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. at 442-444, 416 N.E.2d 934 (1981); Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass.App.Ct. at 83, 341 N.E.2d 916. As explained in North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. at 444, 416 N.E.2d 934, "the Castle Estates standard is offended when local boards have introduced reasons not specified in the published regulations." The principle follows from both G.L. c. 41, § 81M, under which a planning board has no discretion to disapprove a subdivision plan which meets the recommendations of the board of...