Rattner v. Planning Board

695 N.E.2d 669, 45 Mass. App. Ct. 8, 1998 Mass. App. LEXIS 483
CourtMassachusetts Appeals Court
DecidedMay 28, 1998
DocketNo. 97-P-0684
StatusPublished
Cited by8 cases

This text of 695 N.E.2d 669 (Rattner v. Planning Board) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rattner v. Planning Board, 695 N.E.2d 669, 45 Mass. App. Ct. 8, 1998 Mass. App. LEXIS 483 (Mass. Ct. App. 1998).

Opinion

Spina, J.

Steven Rattner appeals from a determination by a Superior Court judge allowing a motion for summary judgment filed by Margaret Smith-Burke and Cary S. Hart (defendants) and dismissing Rattner’s complaint for lack of standing to appeal the approval of defendants’ subdivision. We reverse.

The defendants own an eighty-one-acre parcel of land in West Tisbury, adjacent to Vineyard Sound. Rattner owns a thirty-one-acre parcel abutting the defendants’ parcel to the west.2 The [9]*9defendants’ subdivision plan, approved by the planning board (board) in 1995, provides for four lots. Lots 1-3 would each have one single-family house, and Lot 4 would have two houses.

The parcels owned by the parties are not located on paved public streets. Two private dirt roads provide access to the defendants’ property. One of those roads (southwest road) also provides the sole access to Rattner’s property.3 In connection with the subdivision approval process, the defendants did not propose, and the board did not consider, that the southwest road would provide access to the subdivision. While the subdivision plan approved by the board “relies” on the other access road (southeast road) to provide the sole “legal” access to the subdivision, Rattner complains that the residents of the defendants’ subdivision will continue to use his road (southwest road) for access and egress and that the southwest road is not suited to the extra traffic that will be generated by that use.

In allowing the defendants’ motion for summary judgment and dismissing Rattner’s complaint, the judge reasoned that, although Rattner had presented credible evidence to show that the southwest road would be used as access to the defendants’ parcel of land, the board lacked authority under its subdivision rules and regulations to consider roads outside the proposed subdivision when deciding whether to approve the subdivision plan. In the judge’s view, since the condition of the southwest road was not properly before the board, it could not form the basis for standing to appeal the board’s decision.

General Laws c. 41, § 81BB, provides that any person who is “aggrieved” by any decision of a planning board relating to a [10]*10subdivision plan may appeal' that decision to the Superior Court. Although there have been few cases specifically defining who is an aggrieved person in the subdivision context, zoning decisions under G. L. c. 40A, § 17, provide guidance.

A plaintiff is an aggrieved person if he suffers some infringement of his legal rights. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996). “The injury must be more than speculative, but the term ‘person aggrieved’ should not be read narrowly.” Ibid, (citations omitted). An abutter enjoys the benefit of a rebuttable presumption of aggrievement. Watros v. Greater Lynn Mental Health & Retardation Assn., 421 Mass. 106, 111 (1995). Once the abutter’s standing is challenged and evidence is offered to support the challenge, the presumption recedes and the burden of proof shifts to the abutter, who must come forward with specific facts to support his assertion of status as an aggrieved person. Ibid. Riley v. Janco Cent., Inc., 38 Mass. App. Ct. 984, 985 (1995). Abutters “must put forth credible evidence to substantiate claims of injury to their legal rights.” Marashlian, 421 Mass. at 723.

In order to determine whether there has been, or likely will be, an infringement upon Rattner’s legal rights or property interests, we consider whether the board should have evaluated the adequacy of roads outside of the defendants’ proposed subdivision in deciding whether to approve their plan. Section 81M of G. L. c. 41, inserted by St. 1953, c. 674, § 7, provides that the powers of a planning board shall be exercised with “due regard” for “the provision of adequate access to all of the lots in a subdivision by ways that will be safe and convenient for travel; for lessening congestion in such ways and in the adjacent public ways; . . . and for coordinating the ways in a subdivision with . . . the public ways in the city or town in which it is located and with the ways in neighboring subdivisions” (emphasis added). There is no limitation in the language of § 81M that precludes a planning board from evaluating the adequacy of ways outside a proposed subdivision. North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432, 436-437 (1981). A planning board may consider factors outside a subdivision, including those pertaining to safety, accessibility and traffic, where such factors are relevant to the requirements of the Subdivision Control Law or local regulations. Id. at 437.

The Supreme Judicial Court has interpreted G. L. c. 41, § 81Q, as requiring that subdivision regulations be “comprehen[11]*11sive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required of them.” Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 334 (1962). Although broad in connotation, the language of a planning board regulation that calls for “adequate access” within a subdivision and in the adjacent public ways is valid and consistent with the intent of G. L. c. 41, § 81M. North Landers Corp., 382 Mass. at 445.

The subdivision rules and regulations mirror the language of G. L. c. 41, § 81M. They specifically provide that the powers of the board shall be exercised with “due regard for the provision of adequate access to all of the lots in a subdivision by ways that will be safe and convenient for travel; for lessening congestion in such ways and in the adjacent public ways; . . . and for coordinating the ways in a subdivision with . . . the public ways in the city or town in which it is located and with the ways in neighboring subdivisions.” The subdivision rules and regulations state that the definitive subdivision plan shall set forth “the location, names and widths of streets adjacent to or within proximity of the subdivision.” They also provide that “[t]he Applicant shall demonstrate that roads and ways to and within the subdivision are adequate to provide emergency medical, fire and police protection as well as safe travel for the volume of traffic projected. A report shall be submitted estimating the traffic flow from the subdivision at peak periods in relation to existing traffic on the streets in and adjacent to the subdivision.” (Emphasis added.)

Pursuant to § 81M, the board had an obligation to consider the adequacy of roads outside the defendants’ proposed subdivision in deciding whether to approve their plan. Furthermore, the provisions of the subdivision rules and regulations indicate a reasonably definite intention on the part of the board to lessen congestion and potentially dangerous conditions on roadways adjacent to a proposed subdivision. Contrast Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171, 179 (1977).

The judge concluded that Rattner had produced sufficient evidence to show that the southwest road would be used as access to the subdivision. The defendants had posted signs to their property along the southwest road, the defendants’ family had paid for the maintenance of the southwest road, and their mailbox was located at the beginning of the road.

Rattner also produced evidence that the increase in traffic [12]

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Bluebook (online)
695 N.E.2d 669, 45 Mass. App. Ct. 8, 1998 Mass. App. LEXIS 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rattner-v-planning-board-massappct-1998.