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Friday, April 27, 2012

PLANNING BOARDS CANNOT DENY SUBDIVISIONS BASED ON THEIR “FEELINGS”


The Land Court continues to provide a source of light and hope in a sometimes dreary real estate market. In Tirone Dev. Corp. v. Ward, 11MISC444552AHS, 2012 WL 695722 (Mass. Land Ct. Mar. 2, 2012),  the Agawam Planning Board denied a four (4) lot subdivision plan on the following grounds:

“ i) impact of seasonal high water table on future stability of the road surface

ii) construction concerns (air pollution caused by dust, exhaust, noise, structural damage)

iii) density concerns that conformance with drainage plans will be compromised

iv) drainage concerns post-construction

v) density concerns that substandard existing sewer may get worse

vi) speculation about continuous enforcement problems for Town of Agawam relative to landscaped strips

vii) inadequacy of Homeowners Association Agreement

viii) subdivision will degrade the neighborhood, and ‘In addition, the Board is of the opinion that the subdivision does not satisfy the Agawam Subdivision Rules and Regulations.’”

Judge Sands wrote: “To be sure, a planning board has the authority to regulate sewage, drainage, roads, and similar municipal concerns relating to a subdivision plan. In the Rules and Regulations there are detailed requirements for sewers, drainage, and roads which Defendant has the authority to strictly apply to the Plan. However, Defendant's ‘feelings’ that it will be difficult to maintain adequate grading over the years, and its ‘concern’ that adjacent properties ‘may’ receive more drainage, are not sufficient reasons grounded in the Rules and Regulations, because the Rules and Regulation are properly ‘comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required and what standards or procedures will be applied to them.’” Citing Castle Estates, Inc. v. Park and Planning Bd. of Medfield, 344 Mass. 329, 334 (1962).

The Court also found that the Board’s conclusion that the subdivision will degrade the neighborhood, without any reference to related criteria in the Subdivision Rules and Regulations, was erroneous, as was their conclusion that the Homeowner’s Association Agreement was inadequate, without providing further specifics.

The matter was remanded back the Planning Board, and the Plaintiff was given an opportunity to amend its plans. The process stated in 2009 with the submission of a Preliminary Plan. The Definitive Plan was denied in December of 2010 and an appeal was filed on January 14, 2011.

PAUL F. ALPHEN, ESQUIRE
BALAS, ALPHEN & SANTOS, P.C.
paul@lawbas.com http://www.lawbas.com

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