Silva v. Planning Bd. of Somerset

• Decision Date: 20 April 1993
• Docket Number: No. 91-P-1293,91-P-1293
• Citation: 611 N.E.2d 257,34 Mass. App. Ct. 339
• Parties: Arthur SILVA v. PLANNING BOARD OF SOMERSET; Joseph Cabral & another, 1 Interveners.
• Court: Appeals Court of Massachusetts

Page 257

611 N.E.2d 257

34 Mass.App.Ct. 339

Arthur SILVA v.PLANNING BOARD OF SOMERSETJoseph Cabral & another, ¹Interveners.

No. 91-P-1293.

Appeals Court of Massachusetts Bristol.

Argued Jan. 15, 1993.

Decided April 20, 1993.

Carol A. Helliwell, Fall River, for plaintiff.

John Silvia, Jr., Fall River, for interveners.

Clement Brown, Fall River, for the Planning Bd. of Somerset.

Before KASS, GILLERMAN and PORADA, JJ.

PORADA, Justice.

In this appeal from a judgment of the Superior Court affirming the approval of a two-lot subdivision by the planning board of Somerset (planning board), only two issues are presented: (1) whether the plaintiff owned part of the proposed street shown on the subdivision plan and (2) whether the planning board in approving the subdivision plan had the power to waive a condition imposed by the town's board of appeals for the issuance of a variance for the premises.The Superior Court judge found that the plaintiff did not own any portion of the proposed street and that the planning board could waive the condition imposed by the board of appeals for the grant of a variance.We reverse and remand the case for entry of a new judgment annulling the decision of the planning board.

We summarize the facts, which are not in dispute.The plaintiff acquired title to his property in 1960 by a deed from Louis H. and Grace A. Cadorette.His deed described his easterly boundary as follows: "thence running Northerly by the Westerly line of another contemplated street Eighty (80) feet to a point."At the time of the conveyance to the plaintiff, the Cadorettes retained other land on the same side as well as the opposite side of the contemplated street.In 1980, Grace Cadorette, as the surviving joint tenant, conveyed this land to Roland J. Martelly.The metes and bounds of the deed description in this conveyance did not include the strip of land, 100 feet by forty feet, abutting the easterly boundary line of the plaintiff's property and referred to as the contemplated street in the plaintiff's deed.Roland J. Martelly then conveyed that portion of the land which lay on the opposite and same side of the contemplated street abutting plaintiff's property to Joseph and Catherine Cabral, the interveners.The Cabrals applied for a variance in 1985 to construct a house on this land, because the tract contained only about forty-two feet of frontage on a public way.The board of appeals granted a variance for this purpose but imposed as a condition of its grant that the Cabrals leave "as is" on the tract an existing tree buffer zone, which was shown on a plan accompanying the decision of the board of appeals.

After the Cabrals built a house on the premises, they filed an application to subdivide the property conveyed to them by Martelly.The plan depicted two lots, A and B, and a proposed street whose location matched that of the contemplated street referred to in the plaintiff's deed description.The proposed street ran along the entire easterly boundary and part of the southerly boundary of the plaintiff's premises.The street was 100 feet in length and forty feet in width with an L-shaped turnaround twenty feet in width and sixty feet in length.The L-shaped turnaround included part of the tree buffer zone which was to be maintained by the Cabrals as one of the conditions for the grant of their variance, but the location and extent of the zone was unclear.The Cabral house was located on Lot A; Lot B was vacant.

The planning board approved the plan.The plaintiff, aggrieved by the decision, appealed to the Superior Court pursuant to G.L. c. 41, § 81BB.After a hearing, the judge remanded the case to the planning board for additional findings relating to the location of the tree buffer zone and whether it had waived its regulation requiring compliance with zoning variances.Upon rehearing, the judge affirmed the board's approval of the plan, and this appeal ensued.

1.Ownership of the street.Claiming ownership in part of the proposed street shown on the subdivision plan, the plaintiff contends that the board's approval of the subdivision was a nullity because he was not listed as a record owner of the premises on the plan and did not join in the application for approval of the subdivision.The board's regulations required the subdivider to be the owner or his agent (see Somerset planning board Rules and Regulations Governing the Subdivision of Land § II A, definition of "subdivider"[1974] ) and the plan to identify the record owners of the site (Somerset planning board regulation § III B 2.b).Noncompliance with similar regulations has been determined to be a justification for invalidating a planning board's approval of a subdivision plan.Kuklinska v. Planning Bd. of Wakefield, 357 Mass. 123, 129, 256 N.E.2d 601(1970).Batchelder v. Planning Bd. of Yarmouth, 31 Mass.App.Ct. 104, 106-107, 575 N.E.2d 366(1991).A planning board may, however, waive strict compliance with its regulations, provided such waiver "is in the public interest and not inconsistent with the intent and purpose of the subdivision control law."G.L. c. 41, § 81R, as appearing in St.1953, c. 674, § 7.Hahn v. Planning Bd. of Stoughton, 24 Mass.App.Ct. 553, 556, 511 N.E.2d 20(1987).In Batchelder, we held, however, that the planning board could not waive its regulation requiring the record owner to be the applicant for plan approval because the waiver would undermine a means of achieving a principal objective of the Subdivision Control Law--securing from the owner of record a covenant in order to ensure installation of adequate municipal services.Batchelder v. Planning Bd. of Yarmouth, 31 Mass. at 108-109, 575 N.E.2d 366.However, in this case, unlike the Batchelder case, where the abutter challenged the applicant's title to the entire locus, the plaintiff claims an interest only in the proposed street.Even if the plaintiff owns a fee simple interest in the proposed street, at the very least the Cabrals as grantees of land abutting the proposed street would have an easement in the way and the right to make reasonable improvements in the way without the consent of the plaintiff.Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 677-679, 205 N.E.2d 222(1965).LeBlanc v. Board of Appeals of Danvers, 32 Mass.App.Ct. 760, 764 n. 7, 594 N.E.2d 906(1992).Whether in these circumstances the planning board could waive compliance with this regulation is an issue that we need not address, because there is nothing in the record which indicates that the planning board's approval of the plan was based on a conscious waiver of this regulation or upon its rejection of the plaintiff's claim of an ownership interest in the proposed street.SeeMeyer v. Planning Bd. of Westport, 29 Mass.App.Ct. 167, 169-172, 558 N.E.2d 994(1990).

Based on G.L. c. 183, § 58, ²the plaintiff claims ownership to the centerline of the proposed street.There is no question that prior to the enactment of this statute, under the common law rule of construction the mention of a way as a boundary in a conveyance of land was presumed to mean to the middle of the way if the grantor owned the way.Murphy v. Mart Realty of Brockton, Inc., 348 Mass. at 679-681, 205 N.E.2d 222.This presumption could be overcome by clear proof of a contrary intent of the parties from the language of the deed and the attendant circumstances surrounding the conveyance.Ibid.Beattie v....