423 Mass. 690 | Mass. | 1996
We granted the plaintiffs’ application for direct appellate review on this appeal from a judgment of the Land Court. The judgment (entered after a de nova evidentiary hearing, see G. L. c. 41, § 81BB [1994 ed.]), upheld a decision of the planning board of Rockland (planning board) denying an application for approval of a definitive subdivision plan that would extend an existing road in the town of Rock-land into the town of Hingham to provide access for a proposed retail shopping center there. The land that is the subject of the plan straddles the town line dividing Hingham and Rockland. Almost the entire parcel, and all of the portion that is proposed to be used for the retail shopping center, lies in Hingham. The planning board concluded that, as to the land in Rockland, retail shopping center use would violate the use requirements of the applicable zoning district under the Rockland zoning by-law. The judge decided that the planning board had acted within its authority in disapproving the application on this basis. We agree with the judge and affirm the judgment.
The following facts are taken from the judge’s decision with the addition of a few uncontested facts from the record. The plaintiff at the trial, Raymond E. Beale, Jr. (Beale),
Beale hopes to construct a 457,000 square foot retail shopping center on the portion of the land in Hingham; that portion lies in an “Industrial Park” zoning district. Beale asserts that the Hingham zoning by-law allows the shopping center use planned for that parcel. The 400-foot strip of land in Rockland would be used for an access road connecting the
In the fall of 1991, Beale filed a preliminary subdivision plan with the planning board and the board of health, seeking approval for the extension of Commerce Road along the strip of land in Rockland to the Hingham town line. Both boards disapproved the plan in December, 1991.
Beale thereafter filed a definitive subdivision plan with the two Rockland boards, again seeking approval to extend Commerce Road. This application stated Beale’s intention to continue the proposed road through Hingham so as to create a through road called “Commerce Road Extension.” This through road would start at Commerce Road in Rockland and run westward across the strip of land in Rockland for which subdivision approval was sought to the town border of Hingham and Rockland. From there, it would continue in Hingham through the southern part of the land and then run northwesterly across land owned by South Shore Industrial Park Corporation to a cul-de-sac at the easterly end of Commerce Road in Hingham, a road which is connected (by way of Industrial Park Road) to Derby Street, a public way. Beale’s application invited the planning board to make its approval of the definitive plan conditional upon the Hingham planning board’s approval of the Hingham portion of Commerce Road Extension.
The definitive subdivision plan was rejected by the board of health (on June 30, 1992) and the planning board (on August 13, 1992). The planning board gave five reasons for denying the plan, one of which was that “[t]he proposed use of Commerce Road Extension (a private way) to provide access to a retail shopping center in the Town of Hingham violates the zoning regulations for Industrial-2 districts under [the applicable provision] of the Rockland Zoning By-Law wherein retail uses are prohibited.”
Over a year later (in September, 1993), the Hingham planning board approved, with conditions, the Hingham portion
Beale appealed from the decision of the Rockland planning board to the Land Court. After trial, the judge rejected four of the reasons given by the planning board for its action. (These reasons are no longer in issue.) The judge decided, however, that the planning board acted properly when it disapproved the subdivision plan for the access parcel in Rock-land because the proposed use of that land would violate the use requirements of the Rockland zoning by-law. In reaching this conclusion, the judge determined that: (1) retail use of the type proposed for the Hingham land was prohibited in the “Industrial Park 1-2” zone in Rockland, within which the access land was located; (2) access for a prohibited use is also prohibited, so that use of the parcel in Rockland for access to a retail shopping center in Hingham would violate the use requirements of the Rockland zoning by-law; and (3) the board had the authority, under the subdivision control law, G. L. c. 41, §§ 81K-81GG (1994 ed.), to disapprove Beale’s plan because of this zoning violation, even in the absence of any express provision in the planning board’s subdivision rules and regulations requiring compliance with the zoning by-law. We agree with the judge’s determinations.
1. The judge correctly interpreted the Rockland zoning bylaw as prohibiting retail uses in the 1-2 zone, based upon the absence of such uses from the list of permitted uses in the zone and the express allowance of such uses in Rockland’s business zoning districts. As the judge noted, large retail outlets, such as those identified by Beale as potential tenants for the shopping center,
2. The judge also correctly ruled that, if the Rockland land
Beale argues that a distinction should be made between a case involving an access way across residential land, and the present case, in which an access road to serve retail uses would run across land in an industrial zone. Such a distinction is not warranted because the same rule governs both cases. See Dupont v. Dracut, 41 Mass. App. Ct. 293, 295-296 (1996) (town may prohibit use of part of lot located in a business zone for access to, and parking for, housing project on rest of lot that is zoned for multifamily use in neighboring community). This conclusion stems from the basic principle that “ordinarily, a municipality ought to be accorded the right to carry out the policies underlying its zoning ordinance or by-law with respect to the actual uses made of land within its borders.” Burlington Sand & Gravel, Inc. v. Harvard, 26 Mass. App. Ct. 436, 439 (1988).
3. Having decided that the proposed use of the land in Rockland would violate the use requirements of the Rockland zoning by-law, the judge concluded that the planning board had the authority to disapprove the plan on the basis of the zoning violation, even though the planning board’s rules and regulations did not contain a specific provision requiring
The general directive provided in § 81M, that a planning board should act with proper attention to zoning compliance, accommodates the respective purposes of planning and zoning law, as well as the role of the officers and boards charged with enforcing those laws and, when correctly applied by a planning board, impinges on no right of an owner. As stated in G. L. c. 41, § 81M, the purposes of the subdivision control law include “regulating the laying out and construction of ways in subdivisions providing access to the several lots therein, but which have not become public ways, and ensuring sanitary conditions in subdivisions.” A planning board’s rules and regulations, adopted under the requirements of G. L. c. 41 § 81Q, address these general purposes by establishing definite standards for streets and utilities. “The subdivision control law attaches such importance to planning board regulations as to indicate to us that they should be comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required of them and what standards and procedures will be applied to them. Without such regulations, the purposes of the law may easily be frustrated.” Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 334 (1962). A planning board exceeds its authority if requirements are imposed beyond those established by the rules and regulations.
4. Finally, we consider Beale’s remaining arguments that
(a) The potential indirect impact of the planning board’s decision upon the use of the land in Hingham does not prevent Rockland from enforcing its own zoning by-law with respect to the land in Rockland. Where a parcel of land lies in two municipalities, each may apply its zoning laws to the portion that lies within its boundaries. See Brookline v. Co-Ray Realty Co., supra at 212-213; Burlington Sand & Gravel, Inc. v. Harvard, 26 Mass. App. Ct. 436, 439 (1988); Chelmsford v. Byrne, 6 Mass. App. Ct. 848 (1978). Beale’s use of the portion of the land in Hingham is affected by the planning board’s decision only because Beale seeks to use the land in Rockland for a use not permitted within Rockland’s 1-2 zone. Granting Beale the right to use the Rockland land for retail purposes would create a reverse extraterritorial effect: the uses allowed in Rockland would, in effect, be determined by the provisions of the Hingham zoning by-law. Beale essentially overlooks the fact that “[tjhere are uses which can be made of [the] entire property. . . . The controversy . . . [thus] arises from the fact that [Beale] is not interested in any of those permissible uses and is attempting to by-pass [Rock-land’s] zoning by-law and to treat it as nonexistent so far as the [Rockland] land is concerned.” Brookline v. Co-Ray Realty Co., supra at 212-213.
(b) Beale’s contention about substantial hardship is based on Lapenas v. Zoning Bd. of Appeals of Brockton, 352 Mass. 530 (1967). Lapenas does not present a basis for overturning the planning board’s decision.
Lapenas presents a veiy narrow exception to the principles expressed in the Brookline and Harrison decisions and is limited in its application by the peculiar facts involved. We point out the significant points of distinction between Lapenas and this case.
Beale also contends, by way of analogy to the situation in Lapenas, that the disapproval of the plan for the extension of Commerce Road in Rockland denies all access to the land in Hingham. However, the obstacle to access to the Hingham parcel is not a physical impossibility, but derives instead from the condition imposed by the Hingham planning board, that any access to the Hingham parcel be by way of a through road connecting to a public way in Rockland. Further, in the absence of an invalid purpose, such as was present in Lapenas, courts have upheld restrictions on use in one zone even when the restrictions make access to property in another zone
(c) We are not persuaded by Beale’s argument that § 81M imposed a statutory obligation upon the Rockland planning board to allow an access roadway to the Hingham land, as part of an interconnected road system, and that the board therefore lacked the authority to disapprove the plan. Section 81M does indeed provide in part that a board is to regulate the layout and construction of proposed subdivision roads with “due regard” for providing adequate access to the lots within the subdivision, as well as for coordinating the proposed ways with each other, with public ways within the community, and with ways in neighboring subdivisions. However, these provisions simply authorize a board to ensure that any new roads that it approves are coordinated with the existing network of roads, both within and outside the subdivision.
(d) Beale’s argument that the planning board’s decision
Judgment affirmed.
The other plaintiff on appeal, WHBB Real Estate Limited Partnership, was allowed to join as a plaintiff after the decision was entered. The Land Court judge denied this plaintiff’s motion to be substituted for Beale as the sole plaintiff.
Among potential tenants identified by Beale in his testimony at trial were Home Depot, Home Quarters, Costco, K-Mart, and Walmart.
At trial, Beale argued that the retail uses proposed for the shopping center would in fact be allowable uses within Rockland’s 1-2 district. Beale has not pressed this argument on appeal, beyond indicating that a number of nonconforming retail businesses are located in the 1-2 district. As the judge noted in his decision, these uses may have been the result of prior nonconforming uses or variances.
Section 81U provides in pertinent part as follows:
“After the hearing required by section eighty-one T and after the report of said health board or officer or lapse of forty-five days without such report, the planning board shall approve, or, if such plan does not comply with the subdivision control law or the rules and regulations of the planning board or the recommendations of the health board or officer, shall modify and approve or shall disapprove such plan. In the event of disapproval, the planning board shall state in detail wherein the plan does not conform to the rules and regulations of the planning board or the recommendations of the health board or officer and shall revoke its disapproval and approve a plan which, as amended conforms to such rules and regulations or recommendations.”
According to the Doliner court, it was unclear whether any subdivision regulations had been in effect in Millis at the time that the plan at issue was filed. Doliner v. Planning Bd. of Millis, 343 Mass. 1, 9 (1961). Consequently, in concluding that the Millis board could disapprove the plan for noncompliance with the applicable zoning by-law, the Doliner court presumed that authority for such a disapproval arises from the language of the subdivision control law itself, even where there is no provision in a board’s subdivision regulations that mandates zoning compliance.
For cases so holding, see Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 334 (1962); Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171, 176-178 (1977); Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306, 309-310 (1976). For cases upholding a planning board’s decision because the decision was supported by the board’s rules and regulations, see North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432, 438-445 (1981); Nahigian v. Lexington, 32 Mass. App. Ct. 517, 521-523 (1992); Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79, 82-83 (1976).
The conclusion that a zoning ordinance or by-law may lead to disapproval of a subdivision plan is reflected in decisions stating that neither approval of a subdivision plan under G. L. c. 41, § 81U, nor endorsement of a plan as not requiring subdivision approval, in accordance with G. L. c. 41, § 8 IP, prevents enforcement of a zoning ordinance or by-law by other authorities. See Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802, 807-808 (1981) (waiver of § 81L frontage requirements by a planning board under G. L. c. 41, § 81R, does not eliminate requirement for a variance from the board of appeals); Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599, 604 (1980) (G. L. c. 42, § 8 IP, endorsement does not preclude the enforcement of the zoning by-law). The Arrigo court, while upholding the planning board’s authority to grant a waiver of the zoning frontage requirements, adhered to the position that a plan can be disapproved not just for noncompliance with subdivision rules and regulations or board of health recommendations, but also for violating the zoning frontage requirements incorporated in provisions for excluding certain land divisions from the subdivision approval process. Arrigo, supra at 806-807. See also Silva v. Planning Bd. of Somerset, 34 Mass. App. Ct. 339, 344-345 (1993) (planning board lacked authority to alter terms of a variance, as such a waiver would be inconsistent with the intent of the Subdivision Control Law, expressed in G. L. c. 42, § 81M and § 81Q, to ensure compli
The Lapenas decision actually addressed two cases: one involved the named party, and the other was a companion case for a similarly situated parcel. The Lapenases owned a vacant parcel and proposed to construct a gasoline station on it; the owner of the other parcel was already using the property for commercial purposes and sought a variance to validate the existing use. See Lapenas v. Zoning Bd. of Appeals of Brockton, 352 Mass. 530, 530-531 (1967).
The most obvious distinction is that Lapenas involved the denial of a variance, not the disapproval of a subdivision plan. The statutory condi
In the case cited by Beale on this issue, the Appeals Court upheld the authority of a planning board to require that a subdivision developer extend a road located on his own land so as to connect that road with an existing road on an adjacent property. McDavitt v. Planning Bd. of Winchester, 2 Mass. App. Ct. 806, 807 (1974). It is inapposite to the present case, in which Beale wishes us to require the Rockland board to approve his subdivision.