Wheatley v. Planning Board of Hingham

388 N.E.2d 315, 7 Mass. App. Ct. 435, 1979 Mass. App. LEXIS 1170
CourtMassachusetts Appeals Court
DecidedApril 20, 1979
StatusPublished
Cited by15 cases

This text of 388 N.E.2d 315 (Wheatley v. Planning Board of Hingham) 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
Wheatley v. Planning Board of Hingham, 388 N.E.2d 315, 7 Mass. App. Ct. 435, 1979 Mass. App. LEXIS 1170 (Mass. Ct. App. 1979).

Opinion

Keville, J.

The plaintiffs, pursuant to G. L. c. 41, § 81BB, appealed from a decision of the defendant planning board of Hingham (board) approving upon conditions a plan for the subdivision of an eighty-eight acre tract of land in Hingham (locus) submitted in 1973 by the defendant Hanian. 2 The trial judge filed findings of fact pursuant to Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), and ordered that judgment enter stating that the board’s decision was "not in excess of its authority and is affirmed.” The plaintiffs appeal from the ensuing judgment. We reverse. The facts, as relevant, appear in the body of the opinion.

1. Waiver of the Board’s Rules and Regulations.

In 1967 predecessors in title of Hanian, as trustee, submitted a plan for the subdivision of the locus which the board approved apparently subject to a condition that the improvements shown on the plan be completed within five years. In 1973, after the expiration of that five-year period and without the improvements having been completed, the board rescinded its approval of the plan. 3 Hanian thereupon discussed with the board the possibility of resubmitting the same subdivision plan his predecessors in title had submitted in 1967. However, in the interim between the approval and rescission of the 1967 plan the board had adopted a new set of rules and regulations pursuant to G. L. c. 41, § 81Q, and the 1967 plan did not meet various of the requirements contained in the new rules and regulations. At its May 14,1973, meeting, the board agreed to waive, pursuant to G. L. c. 41, § 81R, 4 any procedural requirements which the 1967 plan did not *438 meet; 5 and on May 21 Hanian resubmitted two prints of the 1967 plan (each of which contained twenty-one sheets) together with a formal application for the plan’s approval. In a covering letter Hanian’s attorney conceded that the plan as submitted did not comply with seven separate provisions of the board’s rules and regulations, 6 and the parties further agree that in addition it did not comply with at least four other provisions of the rules and regulations. 7

The board accepted the plan as submitted, its minutes for its May 21 meeting stating ''[e] very thing appeared to be in order.” The following June 18 the board held the public hearing on the plan required by G. L. c. 41, § 81T. During the course of that hearing the chairman of the board observed, "[T]here were certain procedural steps, only procedural steps, that we waived. We did not waive, at least to the best of my knowledge and understanding, any of the requirements of the Subdivision Control Law except for certain procedural steps that had to do with the preparation of the plan.” The board never specified exactly which provisions of its rules and regulations it had purported to waive.

As a result, at least with respect to those violations of the rules and regulations not mentioned in the letter of Hanian’s attorney, we cannot be certain whether the board purported to waive the regulations violated or simply failed to recognize the violations. We need not, how *439 ever, decide whether the board’s haphazard procedure in waiving its regulations requires the annulment of its approval of the plan. 8 Even assuming that the board intended to waive all the provisions of its rules and regulations with which the plan does not comply, those waivers were at least in part improper and require the annulment of the board’s approval of the plan.

One of the provisions of the rules and regulations not mentioned in the letter of Hanian’s attorney with which the parties agree the plan does not comply, was § 3C, par. 2(k). That provision requires that subdivision plans show "[a]ll existing and proposed municipal services and their appurtenances § 2A defines municipal services as "[sjewers, surface and subsurface water drains, water pipes, fire hydrants, gas pipes, electric lines or ducts, telephone lines or ducts, fire alarm cables and boxes, street lights, and their respective appurtenances.” A planning board has authority to make requirements for “the services that as a matter of course will be installed in the ways” even if furnished by a regulated utility rath *440 er than the developer or the municipality. Sansoucy v. Planning Bd. of Worcester, 355 Mass. 647, 649 (1969). As approved by the board, the plan at best showed only surface and subsurface water drains. 9

The board, in arguing that its waiver of so much of § 3C, par. 2(k), as was not complied with was "in the public interest and not inconsistent with the intent and purpose of the subdivision control law,” relies on the board chairman’s testimony to the effect that it is impracticable for the plans to show water pipes or electric ducts since ground conditions discovered in installing them may require that they be placed other than where they are shown on the plan. We assume that in such circumstances the board under § SIR may waive a requirement that such services actually be shown on the plan. But the difficulty with what the board has done in the present case 10 lies in the fact that, having waived the requirement that all municipal services be shown on the plan except with respect to the drainage system, the board failed to take sufficient steps to indicate what municipal services not shown on the plan the developers would be required to install. It did include in the letter accompanying its certificate of approval of the plan a condition that a "sanitary sewer system ... be installed subject to the approval of the Sewer Commissioner” of Hingham, and we assume that its reference in that letter to electric power 11 was sufficient to require the installation of that service. But the board in its certificate of approval and accompanying letter specified no other municipal services which Hanian would be required to install. Municipal services not *441 mentioned included water pipes, fire hydrants, telephone lines or ducts, fire alarm cables and boxes, and street lights. That the board intended to require the installation of at least some of those services is suggested by its chairman’s testimony concerning the water pipes as well as by the fact that its waiver of its rules and regulations was supposed to have no substantive effect.

Nevertheless, the result of the board’s waiver of the requirement that the plan show all municipal services is that the covenant contained in par. (g) of Hanian’s application for approval of the plan, 12 by which the board as required by G. L. c. 41, § 81U, sought to secure the installation of municipal services (see Stoneham v. Savelo, 341 Mass. 456, 457, 458-459 [1960], and

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Bluebook (online)
388 N.E.2d 315, 7 Mass. App. Ct. 435, 1979 Mass. App. LEXIS 1170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheatley-v-planning-board-of-hingham-massappct-1979.