United Reis Homes, Inc. v. Planning Bd. of Natick
| Citation | 359 Mass. 621,270 N.E.2d 402 |
| Parties | UNITED REIS HOMES, INC. et al. v. PLANNING BOARD OF NATICK. |
| Decision Date | 11 June 1971 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Murray G. Shocket, Natick, for plaintiffs.
Jerry J. DiGeromino, Natick, for defendant.
Before TAURO, C.J., and SPIEGEL, REARDON, QUIRICO and BRAUCHER, JJ.
The plaintiffs are the owners of a track of land in Natick. In August, 1966, they filed with the planning board a proposed subdivision plan for the tract, and after a public hearing the planning board in November, 1966, approved the plan, subject to certain requirements of the board of health. Claiming that those requirements were unreasonable and beyond the authority of the planning board, the owners appealed to the Superior Court under G.L. c. 41, § 81BB, as appearing in St.1957, c. 199, § 2. The judge made a report of material facts, and the evidence is reported. The owners now appeal to this court from a decree dismissing their appeal to the Superior Court.
The judge found that the easterly portion of the tract is in and adjacent to a vast swamp area, that the 'southwesterly portion has a brook of approximately 1,500 feet running through the site,' and that the westerly portion is made up of comparatively high land containing some degree of ledge. The contested requirements of the board of health are that the brook be piped underground through the development, that certain lots be filled in with gravel to a distance of 200 feet from an abutting roadway, and that a performance bond of $45,000 be posted to secure satisfactory completion of the required work, the bond to be released only after completion of the work to the satisfaction of the board of health. The judge found that the safety and health of the inhabitants required these items as conditions of approval, and the decree provides that they are not unreasonable and are within the authority of the planning board.
The principal applicable statutory provisions are found in G.L. c. 41, § 81M, as amended through St.1957, c. 265, and § 81U as amended through St.1965, c. 62. Section 81M includes in its statement of the purpose of the subdivision control law reference to 'ensuring sanitary conditions in subdivisions.' The powers of a planning board are to be exercised 'with due regard * * * for securing adequate provision for * * * drainage and other requirements where necessary in a subdivision.' 'It is the intent of the subdivision control law that any subdivision plan filed with the planning board shall receive the approval of such board if said plan conforms to the recommendation of the board of health and to the reasonable rules and regulations of the planning board' (emphasis supplied).
Section 81U requires that a copy of the definitive plan be filed with the board of health and that the board of health report in writing approval or disapproval. If the plan 'does not comply with * * * the recommendations of the health board * * * (the planning board) shall modify and approve or shall disapprove such plan.' 'Before endorsement of its approval of a plan, a planning board shall require that the construction of ways and the installation of municipal services be secured by one, or in part by one and in part by the other, of * * * (two methods, (1) a bond or deposit, and (2) a covenant) which method may be selected and from time to time varied by the applicant' (emphasis supplied).
1. These statutory provisions make it clear that subdivision plans are to comply with reasonable recommendations of the board of health. Boards of health have plenary power to make reasonable health regulations and to remove or prevent nuisances, sources of filth and causes of sickness. G.L. c. 111, §§ 31, 122. The 'Rules and Regulations Governing the Subdivision of Land' in Natick provide, in Section V C: 'Lot drainage shall be as required and specified by the Board of Health.' We have no doubt of the power of the planning board to incorporate in its approval of a subdivision plan reasonable conditions recommended by the board of health relating to drainage. Compare Key-Vee Realty Co. Inc. v. Town Clerk of Ludlow, 355 Mass. 165, 169--170, 243 N.E.2d 813, We need not speculate as to circumstances in which the planning board might properly substitute its judgment for that of the board of health. See Daley Constr. Co. Inc. v. Planning Bd. of Randolph, 340 Mass. 149, 155--156, 163 N.E.2d 27; Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 333, 182 N.E.2d 540; Baker v. Planning Bd. of Framingham, 353 Mass. 141, 144--145, 228 N.E.2d 831....
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