34 Mass. App. Ct. 339 | Mass. App. Ct. | 1993
In this appeal from a judgment of the Superior Court affirming the approval of a two-lot subdivision by the planning board of Somerset (planning board), only two issues are presented: (1) whether the plaintiff owned part of the proposed street shown on the subdivision plan and (2)
We summarize the facts, which are not in dispute. The plaintiff acquired title to his property in 1960 by a deed from Louis H. and Grace A. Cadorette. His deed described his easterly boundary as follows: “thence running Northerly by the Westerly line of another contemplated street Eighty (80) feet to a point.” At the time of the conveyance to the plaintiff, the Cadorettes retained other land on the same side as well as the opposite side of the contemplated street. In 1980, Grace Cadorette, as the surviving joint tenant, conveyed this land to Roland J. Martelly. The metes and bounds of the deed description in this conveyance did not include the strip of land, 100 feet by forty feet, abutting the easterly boundary line of the plaintiff’s property and referred to as the contemplated street in the plaintiff’s deed. Roland J. Martelly then conveyed that portion of the land which lay on the opposite and same side of the contemplated street abutting plaintiff’s property to Joseph and Catherine Cabral, the interveners. The Cabrals applied for a variance in 1985 to construct a house on this land, because the tract contained only about forty-two feet of frontage on a public way. The board of appeals granted a variance for this purpose but imposed as a condition of its grant that the Cabrals leave “as is” on the tract an existing tree buffer zone, which was shown on a plan accompanying the decision of the board of appeals.
After the Cabrals built a house on the premises, they filed an application to subdivide the property conveyed to them by Martelly. The plan depicted two lots, A and B, and a proposed street whose location matched that of the contemplated street referred to in the plaintiff’s deed description.
The planning board approved the plan. The plaintiff, aggrieved by the decision, appealed to the Superior Court pursuant to G. L. c. 41, § 8IBB. After a hearing, the judge remanded the case to the planning board for additional findings relating to the location of the tree buffer zone and whether it had waived its regulation requiring compliance with zoning variances. Upon rehearing, the judge affirmed the board’s approval of the plan, and this appeal ensued.
1. Ownership of the street. Claiming ownership in part of the proposed street shown on the subdivision plan, the plaintiff contends that the board’s approval of the subdivision was a nullity because he was not listed as a record owner of the premises on the plan and did not join in the application for approval of the subdivision. The board’s regulations required the subdivider to be the owner or his agent (see Somerset planning board Rules and Regulations Governing the Subdivision of Land § II A, definition of “subdivider” [1974]) and the plan to identify the record owners of the site (Somerset planning board regulation § III B 2.b). Noncompliance with similar regulations has been determined to be a justification for invalidating a planning board’s approval of a subdivision plan. Kuklinska v. Planning Bd. of Wakefield, 357 Mass. 123, 129 (1970). Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104, 106-107 (1991). A planning board may, however, waive strict compliance with its regulations, provided such waiver “is in the public interest and not inconsistent with the intent and purpose of the subdivision control law.” G. L. c. 41, § 81R, as appearing in St. 1953, c. 674, § 7. Hahn v. Planning Bd. of Stoughton, 24 Mass. App. Ct.
Based on G. L. c. 183, § 58,
2. Compliance with the zoning variance. The plaintiff argues that the board did not have the authority to waive a
The board’s regulations require strict compliance “with the terms of any variance . . . which may have been specifically granted by the Board of Appeals.” Somerset planning board regulation § II F. The regulations also provide that the rules and regulations may be waived when, in the judgment of the board, “such action is in the public interest and not inconsistent with the Subdivision Control Law, and the zoning bylaw of the Town of Somerset.” S'omerset planning board regulation § II H. A waiver will be held invalid if it is inconsistent with the intent and purpose of the Subdivision Control Law. See G. L. c. 41, § 81R. One intent of the Subdivision Control Law is to “insur[e] compliance with the applicable zoning ordinances or by-laws.” G. L. c. 41, § 81M, as appearing in St. 1969, c. 884, § 2. Doliner v. Planning Bd. of Millis, 343 Mass. 1, 6 (1961). In addition, G. L. c. 41, § 81Q, as appearing in St. 1953, c. 674, § 7, provides: “[N]o rule or regulation [of a planning board] . . . shall be inconsistent with the regulations and requirements of any other municipal board acting within its jurisdiction.” There is no question that the waiver granted by the planning board altering the terms of a variance was inconsistent with the intent
Judgment reversed. A new judgment is to enter in the Superior Court annulling the decision of the board.
General Laws c. 183, § 58, as appearing in St. 1990, c. 378, § 1, provides in pertinent part: “Every instrument passing title to real estate abutting a way, whether public or private,... shall be construed to include any fee interest of the grantor in such way, . . . unless (a) the grantor retains other real estate abutting such way . . . , in which case, (z) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way ... as far as the grantor owns, or (z'z) if the retained real estate is on the other side of such way . . . between the division lines extended, the title conveyed shall be to the center line of such way ... as far as the grantor owns, or (6) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.” The inserting statute, St.
The tree buffer zone encompassed an area ten feet by sixty feet in the turnaround area.