North Landers Corp. v. Planning Bd. of Falmouth

• Decision Date: 19 February 1980
• Citation: 400 N.E.2d 273,9 Mass.App.Ct. 193
• Parties: NORTH LANDERS CORPORATION v. PLANNING BOARD OF FALMOUTH.
• Court: Appeals Court of Massachusetts

Page 273

400 N.E.2d 273

9 Mass.App.Ct. 193

NORTH LANDERS CORPORATION v. PLANNING BOARD OF FALMOUTH.

Appeals Court of Massachusetts, Barnstable.

Argued Nov. 21, 1979.

Decided Feb. 19, 1980.

Stephen T. Keefe, Jr., Quincy, for plaintiff.

Edward W. Farrell, Town Counsel, Falmouth, for defendant.

Before ARMSTRONG, ROSE and KASS, JJ.

KASS, Justice.

On the grounds of "inadequate access, the inadequacy of Sam Turner (Road), and other reasons," ¹ the planning board of Falmouth (the board) rejected an application for subdivision approval (G.L. c. 41, § 81U, as amended through St.1972, c. 749, §§ 1 and 2) ² by the plaintiff developer, North Landers Corporation (North Landers). Acting on an appeal by North Landers under G.L. c. 41, § 81BB, the trial court entered judgment that the board's decision did not exceed its authority, thus allowing its action to stand. We are of the opinion that the regulations adopted by the board and applied in this case are impermissibly vague and that the judgment must be reversed.

North Landers' proposed subdivision is exceptionally large: it covers 447.36 acres and contemplates 447 building lots, an eighty-acre golf course, and sixty-four acres of open space. The only public way to which the development has access is Sam Turner Road, on which the North Landers parcel has 800 feet of frontage. To that street the North Landers plan provided a sixty-foot access divided into two paved lanes, each twenty-four feet wide and separated by a twelve-foot median strip. The plan also provides for two roads which run at right angles to the southerly access lane and lead to existing streets. Those streets, in turn, lead to Sam Turner Road at a point about 100 feet south of its intersection with the access way from the North Landers development. Sam Turner Road itself is laid out as a forty-foot way, but its paved surface is only eighteen feet wide. Although the proposed subdivision abuts Route 28 along most of its western boundary, that highway is a limited access road at this location, and the plan, therefore, shows no access to it. From the record before us it appears that the board is concerned that Sam Turner Road is too thin a line of communication to the rest of Falmouth, although the board's decision is silent as to how and why either the access way or Sam Turner Road is inadequate.

Section 17 A and B of the subdivision regulations of the town of Falmouth, which we set forth in full in the margin, gives no definition to the § 17 A concept of adequacy of access to a public way or the § 17 B concept of inadequacy of the public way to carry the traffic expected to be generated by the subdivision. ³ A criterion so rubbery and indefinite as "adequate" does not meet the standard of definiteness implicit in the text of G.L. c. 41, § 81Q, and enunciated expressly in the case law. Castle Estates, Inc. v. Park and Planning Bd. of Medfield, 344 Mass. 329, 334, 182 N.E.2d 540 (1962). Sparks v. Planning Bd. of Westborough, 2 Mass.App. 745, 747-748, 321 N.E.2d 666 (1974). Chira v. Planning Bd. of Tisbury, 3 Mass.App. 433, 438, 333 N.E.2d 204 (1975). Canter v. Planning Bd. of Westborough, 4 Mass.App. 306, 309, 347 N.E.2d 691 (1976). Fairbairn v. Planning Bd. of Barnstable, 5 Mass.App. 171, 176-179, 360 N.E.2d 668 (1977). One man's adequacy is another man's gorge, and still another's want. ⁴ Certainly the words "adequate access" and "inadequate to carry the traffic to be generated by such subdivision" do not enable owners to "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. at 334, 182 N.E.2d at 545. The requirement for reasonably definite rules and regulations was introduced into the statutory scheme with the legislative intent that "a prospective subdivider will know in advance in every case what will be required of him in the way of street construction and public utilities." 1953 House Doc. No. 2249, Report of the Special Commission on Planning and Zoning at 55-56. A regulation so open ended and devoid of standards as the one before us lends itself too readily to subjective application or disapproval of plans "merely because the board feels general public considerations make such action desirable." Pieper v. Planning Bd. of Southborough, 340 Mass. 157, 163-164, 163 N.E.2d 14, 18 (1959).

Obviously planning board regulations need not cover every contingency, but at the least in the instant case they could establish the minimum width of an access way and the number of points of contact with the existing street system of Falmouth, depending on the size of the development. ⁵ In a similar vein, regulations might set forth what characteristics of adjacent public ways ⁶ should be taken into account in planning the access system of a subdivision, always having in mind that standards may not be established which would reject a plan on the ground that the subdivision proposed would adversely affect traffic patterns or municipal services in the community as a whole. Daley Constr. Co., Inc. v. Planning Bd. of Randolph, 340 Mass. 149, 155-156, 163 N.E.2d 27 (1959). Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass.App. 79, 84, 341 N.E.2d 916 (1976). This is especially so in a case such as this, where the improvement of the paved way along Sam Turner Road is within the town's control, and where the owner has volunteered to defray a portion of the cost of making that improvement.

There is no merit in the argument of the board that § 16 of its regulations lends definition to what is adequate under § 17. The former section spells out specifications for the alignment, width, and grade of streets...