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Thursday, November 6, 2014


The Appeals Court upheld the Superior Court in a recent decision concerning the disapproval of a subdivision plan in F&D Cent. Realty Corp., Inc. v. Planning Bd. of Bellingham, 86 Mass.App.Ct. (October 14, 2014). The Appeals Court, noting Judge Richard T. Tucker’s thoughtful findings and detailed analysis, agreed that the Town of Bellingham planning board “exceeded the scope of its authority.” Citing Sealund Sisters, Inc.[1] and Beale[2], the court held that a planning board may not base its reasons for disapproval on requirements beyond those prescribed in the rules and regulations, or exercise its discretion to import its own standards.

The Superior Court determined, and the Appeals Court agreed, that the reasons given by the Planning Board for disapproval of the subdivision plan was outside its authority under its rules and regulation.

The court found that Planning Board applied an erroneous standard in finding that Section 324(F) raises sight distance concerns for the developer at a certain intersection of two public ways, as 324(F) only applies to intersections of access ways and subdivision proposed streets. The court also held that the Planning Board exceeded its authority by disapproving the subdivision in part on a finding of the applicant’s noncompliance with Section 26, reasoning, simply, that the board did not set forth how Section 26 had been violated. Furthermore, the judge held that Section 324(F) also did not apply to the “Environmental Analysis”, for the same reasons, while also crediting the developer’s traffic expert. In addressing the board’s fourth reason for disapproval, the judge found, and the Appeals Court agreed that evidence produced at trail was insufficient to establish any other hazards of a certain street as an access to the subdivision. Likewise, the judge concluded that a rule and regulation cited by the board did not apply to access roads to a subdivision. Finally, the court held that the board’s sixth reason that “[t]he project is not consistent with the purposes of the Subdivision Control Law” was not “elucidated” in the board’s decision or in its submissions to the court.

The Appeals Court rejected the Planning Board’s argument that it acted within its authority, and that the judge erred in failing to give deference to the board’s interpretation of its own rules, regulations and findings of fact stating: “[a]lthough deference is given to a board in granting a special permit or waiver, here, such deference was not warranted where the reasons stated for disapproval fell outside the provisions of the rules and regulations.”

Christopher J. Alphen, J.D.

Alphen & Santos, P.C.

200 Littleton Rd.

Westford, MA 01886

[1] v. Planning Bd. of Weymouth, 50 Mass.App.Ct. 346, 348 (2000).
[2] v. Planning Bd. of Rockland, 423 Mass. 690, 696 (1996).

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