Opinion
15-P-260
04-20-2017
Marjorie M. WYLDE & others v. PLANNING BOARD OF WILLIAMSTOWN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following subdivision approval, the plaintiffs, a group of twelve abutters and neighbors, commenced this action challenging, among other things, the adequacy of Bee Hill Road, a public way, to provide access from both the north and the south to a proposed ten-lot, eight-home subdivision by the applicants, defendants Charles Fox and Joan Burns, on seventy-three acres in the town of Williamstown. In these cross appeals, we consider whether the judge: (1) properly remanded the matter for the town's planning board (board) to consider the adequacy of access from the northern portion of Bee Hill Road where it had already granted a waiver for access from the southern portion of Bee Hill Road; (2) lost jurisdiction over the board's decision after remand because the applicants did not appeal from that decision within twenty-days; and (3) erred in finding that the board's decision after remand (which found access from the northern portion of Bee Hill Road inadequate) to deny waivers for the northern portion of Bee Hill Road (after having previously granted waivers for access from the southern portion of Bee Hill Road) was arbitrary and capricious. Because the remand was proper, the judge effectively retained jurisdiction over the remand issues and, therefore, properly allowed applicant Charles Fox to challenge the board's remand decision. The judge also did not err in concluding that the board's decision to deny waivers for the northern access route, which was substantially identical to the southern access route and would likely incur less traffic use, was arbitrary and capricious. We affirm.
The proposed subdivision consists of eight buildable lots and two nonbuildable lots.
Background. The proposed subdivision is situated on the eastern side of Bee Hill Road, a public way which runs north to south between two numbered State highways, Route 7 (Cold Spring Road) and Route 2 (Taconic Trail). The proposed subdivision way, Foxwood Lane, intersects Bee Hill Road approximately 0.2 miles from Bee Hill Road's southern end (where it intersects with Route 2) and approximately 1.1 miles from Bee Hill Road's northern end (where it intersects with Route 7).
Bee Hill Road is a dirt and gravel road that is narrow—approximately twelve feet wide at its narrowest and eighteen feet wide at its widest. It has drainage issues. The approved subdivision plan incorporates improvements to the southern portion of Bee Hill Road along the proposed development's frontage on Bee Hill Road. Those improvements include installing "bump outs" that will provide road widths of twenty feet, geotextile fabric, a splash pad in the ditches, and drainage measures, in addition to grading the road, replacing surface materials, and improving the pond discharge pipe.
In his 2014 decision, the judge found that the existing traffic on Bee Hill Road is extremely low, and that the eight-house subdivision will not materially change that status. The judge also noted that Bee Hill Road has no visibility or "sight line" issues, and that over ninety percent of the cars travel less than thirty miles per hour. The record also reflects that when asked after remand to comment on access for Foxwood Lane off Bee Hill Road, the town manager indicated that Bee Hill Road "does not vary significantly from the other unpaved roads in town," and, further, that "[t]he traffic generated by [eight] additional homes is not expected to impact our ability to maintain reliable access." In addition, after remand, neither the police chief nor the fire chief expressed concerns related to the adequacy of Bee Hill Road.
The judge found there were ten car trips in one direction and nine in the other during the weekday peak morning hour, six car trips in one direction and three in the other during the weekday peak evening hour, and 129 car trips total during an average day. The proposed subdivision is expected to produce approximately ninety trips per day.
The board first approved the subdivision plan in 2006, and in 2008 it approved a modification that moved Foxwood Lane closer to Route 2. The board voted to consider only the access to Foxwood Lane from the section of Bee Hill Road closest to Route 2 (the southern portion of Bee Hill Road) and concluded that with the proposed improvements, with minor exceptions, it provided adequate access.
Section 170-2.3B(2) of chapter 170, entitled subdivision rules and regulations (regulations), of the town's code provides that "[w]ays shall normally be considered to provide adequate access to proposed subdivisions only if they provide connection to a state-numbered highway via roads which with no more than minor exceptions continuously meet the standards of Article IV, except for right-of-way width." The sections under art. IV of the regulations sets forth geometric, grade, construction, and curbing requirements. Pursuant to § 170-2.3C of the regulations, "[t]he Board may waive strict compliance with these access requirements only upon its determination, following consultation with the Town Manager, Director of Public Works, Police Chief and Fire Chief, that the way in fact will be sufficient to serve proposed uses of land." Separately, § 170-5.3 of the regulations provides: "Strict compliance with the requirements of this chapter may be waived when, in the judgment of the Planning Board, such action is in the public interest and not inconsistent with the Subdivision Control Law. When granting such waivers, the Planning Board shall clearly state its reasons in writing and make it part of its decision." The waiver provision in that section in large part mirrors that contained in G. L. c. 41, § 81R.
The plaintiffs appealed from both approvals claiming, among other things, that Bee Hill Road was inadequate to provide access to the proposed subdivision and that the board should have considered the adequacy of the road from both the south and the north. Following a six-day trial on the consolidated appeals, a Land Court judge agreed with the board that, with the proposed improvements, access to the subdivision over Bee Hill Road from Route 2 was adequate and he expressly affirmed the board's decision to waive those portions of the regulations that were not met by the southern portion of Bee Hill Road. However, the judge also found that some traffic would proceed to Route 7 via the northern portion of Bee Hill Road and, therefore, it was unreasonable for the board to not consider the adequacy of that access route. The judge explained, "To be clear, I agree with the Applicants that ... Regulation[ ] § 170-2.3 does not require adequate access to two numbered state highways. However, the evidence suggests that the entire length of Bee Hill Road will serve as access and § 170-2.3 states that roads provide adequate access when they continuously meet the standards of Article IV [design and construction requirements], except for right-of-way width." Accordingly, the judge remanded the matter for the board's consideration of whether "Bee Hill Road from the proposed Foxwood Lane to Cold Spring Road [Route 7] meets the requirements of ... Regulation[ ] § 170-2.3, whether the Board finds that a waiver is appropriate if such requirements are not met, and whether (in its judgment) that section of Bee Hill Road provides adequate access." The judge did not expressly state that he retained jurisdiction over the case, however, no final judgment entered and the judge conducted several status conferences while awaiting the board's responses. The applicants attempted to appeal from the judge's order remanding the matter to the board, but this court dismissed the appeal as premature because final judgment had not entered.
The judge found the board explicitly waived requirements related to travel width, paving, sidewalks, and underground utilities. The judge assumed without deciding that the remaining requirements were met.
On remand, the board concluded in a unanimous vote that the northern portion of Bee Hill Road "does not meet the requirements for adequate access as stated in § 170-2.3 of the ... Regulations." In a three-to-two vote, the board voted not to waive strict compliance with the adequacy standards contained in the regulations. The board did not make a separate finding as to whether the northern section of Bee Hill Road provides adequate access notwithstanding its deviations from the requirements of the regulations. Nor did the board modify or revoke its first approval of the subdivision.
The board filed its post-remand decision with the town clerk on December 16, 2010, and with the Land Court on December 21, 2010. A copy of the record before the board was filed with the Land Court on March 1, 2011. No further action was taken by the parties, and on March 22, 2011, the judge conducted a status conference. During the status conference, the parties, including counsel for the applicant, Charles Fox, assumed it was too late to appeal from the board's remand decision because the twenty-day time limitation set forth in G. L. c. 41, § 81BB, had passed. The judge suggested, however, the remand order was an interlocutory order because he had effectively retained jurisdiction. As a result, Fox filed a motion objecting to the board's response to the remand. After briefing, the judge decided that the board's response to the remand questions was not a "decision" that gave rise to a separate appeal pursuant to § 81BB, and he allowed Fox to amend his answer to include a challenge to the board's answers to the remand questions. The judge then conducted a one-day trial on the board's remand decision.
Neither the motion nor the oppositions are in the record provided to this court.
Prior to that trial, the board stipulated that "its 2006 decision [ ] interpreted ... Regulation[ ] [§] 170-2.3 as requiring adequacy of access to only one numbered state highway and the Board found that access [from Bee Hill Road to Taconic Trail, Route 2] to be adequate so long as the improvements set forth in that decision were made." The judge issued his decision on October 6, 2014. Although the judge acknowledged the board's stipulation with respect to the adequacy of access to the one numbered State highway from the southern portion of Bee Hill Road, he rejected any interpretation of the regulations that rendered unnecessary the board's assessment of the adequacy of access to Route 7 from the northern portion. Reasoning that there was no material difference between the southern and northern portions of Bee Hill Road, he also found that the board abused its discretion in declining to grant waivers for the northern portion where the board had granted waivers for the southern portion. On October 2, 2014, judgment entered ordering the board to grant waivers as to the northern section of Bee Hill Road, affirming the board's grant of waivers as to the southern section of Bee Hill Road, and affirming the board's grant of subdivision approval. This appeal followed.
On appeal, the plaintiffs argue that the judge lost jurisdiction as to the board's remand decision because the applicants failed to file a timely appeal. They contend that even if the judge could properly address the remand decision, the board did not abuse its discretion in denying waivers for the northern portion of Bee Hill Road, and, therefore, the judge should revoke the board's approval of the subdivision. Fox also appeals, contending that the judge erred in issuing the order of remand because adequate access from one direction is all that the regulations require and, further, that even if the remand order properly issued, his appeal was timely and the judge correctly concluded that the board acted arbitrarily and capriciously in denying waivers of the regulations for access from the northern portion of Bee Hill Road.
Discussion. A. Jurisdiction. The procedural posture in which this case reaches us is unusual. The judge entered a remand order, which we concluded was an interlocutory order, as no final judgment either affirming or reversing the board's approval had entered. Indeed, we dismissed as premature Fox's effort to appeal from the remand order. See Anderson v. Planning Bd. of Norton, 56 Mass. App. Ct. 904, 904 (2002). Further, although the judge did not expressly state that he retained jurisdiction on the matter awaiting the board's answers to the remand questions, he acted as though he had retained jurisdiction. The judge conducted status conferences while awaiting the board's response; neither party objected.
While we agree that the proper procedure would have been a joint motion to return the case to the docket and to supplement the record with the administrative record from the remand proceedings, see Regan v. Conservation Commn. of Falmouth, 77 Mass. App. Ct. 485, 488 (2010), there can be no doubt that the judge here retained jurisdiction over the case. See 311 W. Broadway LLC v. Board of Appeal of Boston, 90 Mass. App. Ct. 68, 74-76 (2016). Accordingly, Fox's amendment to his pleadings to include an appeal from the board's remand decision was proper, see ibid., and, as the judge found, because the plaintiffs were not harmed by Fox's delay, laches did not precluded the amendment.
We are aware that the twenty-day time provision in G. L. c. 41, § 81BB, generally is strictly enforced and "compliance with the notice requirement within the twenty-day period is a jurisdictional prerequisite to prosecution of an appeal under § 81BB." Calnan v. Planning Bd. of Lynn, 63 Mass. App. Ct. 384, 389 (2005), quoting from Nantucket Land Council, Inc. v. Planning Bd. of Nantucket, 5 Mass. App. Ct. 206, 208 (1977). We have concluded, however, that § 81BB simply does not apply to the board's post-remand decision in the circumstances of this case. See 311 W. Broadway LLC, 90 Mass. App. Ct. at 78-79.
In addition, contrary to the plaintiffs' assertions, it was not entirely incumbent upon the applicants to return the entire case to the docket. As the judge noted in his memorandum and order allowing Fox's motion to amend his pleading, the board, in its remand decision, "neither addressed nor decided whether the 2006/2008 approvals should be vacated in light of" the board's response on remand. It remained, therefore, incumbent upon the plaintiffs to persuade the judge that the board's response to the remand questions warranted reversal of the board's approval.
Notably, the plaintiffs' reliance on Lakeside Builders, Inc. v Planning Bd. of Franklin, 56 Mass. App. Ct. 842, 851 (2002), for the proposition that denial of waivers for the adequacy requirements for the northern end of Bee Hill Road is sufficient to deem the plan disapproved is misplaced. In Lakeside Builders, Inc., in the context of the planning board's disapproval of a plan, we noted only that our affirmance of the board's denial of one waiver was sufficient to uphold the board's decision. Ibid. In that case, we were not required to consider other waivers declined by the board. Ibid.
B. Remand order. We next address whether the judge properly compelled the board to consider the adequacy of the northern portion of Bee Hill Road. It is well settled that planning boards may consider the adequacy of public ways providing access to a proposed subdivision in determining whether to grant subdivision approval. See North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432, 436-437 (1981). The town has adopted subdivision regulations directed toward adequacy of adjacent ways. "Adequacy" has been recognized as an indefinite term subject to a planning board's judgment, id. at 440-441, but the town has made an effort to define adequacy of public ways providing access to a proposed subdivision. See note 5, supra. The board was satisfied that, with the proposed improvements, the southern portion of Bee Hill Road would provide adequate access under the regulations. The judge agreed and the plaintiffs do not argue otherwise on appeal.
The judge nevertheless determined that the board was required to evaluate the public way servicing the subdivision from both directions. We agree. Even if the regulations require that access over a public way be to only one State-numbered highway, the board may not ignore and decline to address a reality, which the judge found existed here, of an alternate access to a numbered public way. See Rattner v. Planning Bd. of W. Tisbury, 45 Mass. App. Ct. 8, 11 (1998).
We note also that aside from the regulations, the subdivision control law, G. L. c. 41, §§ 81K -81GG, guides a planning board's consideration of a proposed subdivision. In Rattner, supra, cited by the judge, we said that in the context of a challenge to an abutter's standing to challenge subdivision approval, "[p]ursuant to § 81M, the [planning] board had an obligation to consider the adequacy of [private] roads outside the ... proposed subdivision in deciding whether to approve [the] plan." That was true where, although there were two roads that provided access to the proposed subdivision and only one road was considered by the board, there was evidence that the other road, which was used by the abutter, would be used also by the residents of the proposed subdivision, and there was a question of whether it was inadequate. Ibid. A town's or city's regulations cannot conflict with the subdivision control law. See Planning Bd. of Reading v. Board of Appeals of Reading, 333 Mass. 657, 660 (1956) ; Schiffenhaus v. Kline, 79 Mass. App. Ct. 600, 605 (2011). Here, under both the statute and the regulations, therefore, the board was obligated to consider the adequacy of access from the northern portion of Bee Hill Road.
C. Adequate access and waivers. Section 170-2.3B(2) of the regulations provides that "roads which with no more than minor exceptions continuously meet the standards of Article IV, except for right-of-way width," are generally considered to provide adequate access. The board found, and the judge agreed, that the northern portion of Bee Hill Road did not meet the applicable standards for an access road to a numbered public way. Fox does not argue otherwise; rather, he argues that Bee Hill Road nonetheless provides adequate access. In contrast to its decision on the southern route, the board declined to grant waivers of the regulations for the northern access way. The plaintiffs contend that the judge exceeded his authority in concluding that the board's decision not to grant such waivers was arbitrary and capricious. Based upon the record before us, we disagree.
"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.’ " Lakeside Builders, Inc. v. Planning Bd. of Franklin, 56 Mass. App. Ct. 842, 845 (2002), quoting from Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 355 (2001). Planning boards enjoy considerable but not unlimited discretion in determining whether to grant waivers pursuant to G. L. c. 40, § 81R. Wine v. Planning Bd. of Newburyport, 74 Mass. App. Ct. 521, 527 (2009). We have said that if "reasonable minds might in good faith differ, without doubting the reasonableness of the opposing view, the conclusion reached by [a] planning board should be sustained on judicial review. For it is the board, not the court, to whom the statute delegates the discretion, and the role of the court is merely to ascertain whether the board exceeded its authority." Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802, 809 (1981). "Although courts in some instances have held that a planning board abused its discretion in granting a waiver of its rules and regulations, it is a rare occurrence for a court to disturb a board's discretionary decision to deny a waiver of compliance based upon its strict adherence to its rules and regulations." Wine, supra at 528. That said, while a board is not required to grant a waiver, refusal to do so, "in certain instances, can constitute an abuse of discretion." Lakeside Builders, Inc., supra at 846.
The board's decision on remand indicates it considered only whether to grant a waiver pursuant to § 170-2.3C of the regulations, and did not consider the standards in G. L. c. 41, § 81R, or its parallel provision in § 170-5.3 of the regulations. In the absence of any argument to the contrary, we assume the deferential standards under § 81R apply to the board's decision whether to grant a waiver pursuant to the regulations.
The judge conducted a detailed and careful review of the adequacy of the northern end of Bee Hill Road and enumerated persuasive reasons why the northern route is no more "inadequate" than is the southern route, including its low volume of traffic, current adequate service to nineteen existing homes and other travelers, low rates of vehicular speed, compliance with American Association of State Highway and Transportation Officials guidelines in terms of sight and stop distances, and few traffic accidents. Perhaps most importantly, here, the town entities charged with ensuring the safety of the town and its citizens, the fire, police, and public works departments, as well as the town manager, all were satisfied with the access to the subdivision via Bee Hill Road.
During a public hearing addressing the remand questions, the board rejected the following motion, as rationale for allowing the applicable waivers: "[A]fter consultation with the Police Chief, Fire Chief, Town Manager, and Public Works Director, Bee Hill Road is a public way that has been in existence for over 200 years and does not vary significantly from other pubic unpaved roads in Williamstown. The road supports a very low volume of traffic and is sufficiently maintained to provide adequate access for this traffic and the traffic generated from the proposed Foxwood Lane." The facts, as found and credited by the judge and which we must credit unless clearly erroneous, demonstrate that the board's denial of that motion was arbitrary and capricious.
At trial after remand, the plaintiffs' expert testified that the primary concern is Bee Hill Road's width and roadside obstructions that impede flowing traffic. The plaintiffs identified five areas along the northern route where Bee Hill Road narrows to twelve or thirteen feet from the general width of fourteen to sixteen feet. Yet, the regulations, perhaps in recognition of the rural nature of the town, except width requirements when considering adequacy of the way. In addition, the judge found that the occasional narrow width kept speeds low, which made travel safer. Moreover, the judge credited testimony from the director of public works that even with plows attached to department trucks, the department has not had an issue passing cars on Bee Hill Road. In addition, the judge credited the director's testimony that if he believed roadway improvements were needed to improve safety on Bee Hill Road, he would bring a budget proposal to the town's selectmen. Further, although the judge noted the plaintiffs' concerns regarding the width of Bee Hill Road, he found that those concerns have not stopped them from using the entire length of the road. The evidence credited by the judge demonstrated that even with the added vehicles from the proposed subdivision, Bee Hill Road will remain a low-volume road and travel risks will remain low. In those circumstances, we discern no error in the judge's conclusion that the board's refusal to grant the necessary waiver for access from the northern portion of Bee Hill Road was arbitrary and capricious, particularly in light of the board's decision to grant a waiver for the largely similar access from the southern portion of that road.
While the regulations are not without ambiguity in that regard, we presume waivers would not have been granted by the board for the southern section if strict adherence to width requirements was intended.
The judge also noted that because the distance to a numbered highway via the northern route of Bee Hill Road was greater than via the southern route (approximately one mile more), the northern route would likely be less trafficked, especially during the winter months.
The board's refusal to grant the necessary waivers was also inconsistent with its prior approvals of the subdivision, which it did not rescind.
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Judgment affirmed.