Gallitano v. Board of Survey & Planning
Gallitano v. Board of Survey & Planning
Opinion of the Court
The plaintiffs, Leo and Mary Gallitano, own a parcel of land in Waltham containing 7.048 acres and numbered 595 Beaver Street. On January 28, 1979, they submitted to the defendant board a plan showing a four-way division of the parcel, requesting that it be endorsed under G. L. c. 41, § 81P, as a plan not requiring approval. After a hearing the board, on February 9, 1979, declined to give the requested endorsement. The Gallitanos
Facts which are, in our opinion, decisive of the appeal are not in dispute. The proposed division, shown in rough diagram in figure one, would divide the Gallitanos’ parcel into four lots (1A, IB, 1C, and ID), each meeting the requirements of the Waltham zoning ordinance for a build-able lot in the residential district where the parcel is located. The ordinance specifies no minimum frontage requirement; each of the lots has frontage on Beaver Street, an accepted public way, for a distance not less than the twenty feet specified in G. L. c. 41, § 81L. Measured against the literal requirements of § 81L, therefore, the Gallitanos’ plan does not show a subdivision. Compare
Gifford v. Planning Bd. of Nantucket, supra, on which the board relies, involved a plan showing a division of a parcel into forty-six lots, each meeting the frontage and area requirements of Nantucket’s zoning by-law, but only by means of long, narrow connector strips, some over a thousand feet long, some narrowing to as little as seven feet in places, some containing changes of direction at angles as sharp as twelve degrees. Holding that such a plan was “an attempted evasion” and should be treated as one showing a subdivision, the court stated: “We stress that we are concerned here with a quite exceptional case: a plan so delineated that within its provisions the main portions of some of the lots are practically inaccessible from their respective borders on a public way.” 376 Mass. at 808-809. The plan before us is qualitatively different: access is not impossible or particularly difficult for ordinary vehicles, and such difficulty as there is seems implicit in a zoning scheme which allows frontage as narrow as twenty feet. To permit the board to treat such a plan as subject to their approval would be to confer on the board the power to control, without regulation, the frontage, width, and shape of lots. The Gifford case, if we read it correctly, was not intended thus to broaden the powers of planning boards. The Gifford case does preclude mere technical compliance with frontage requirements in a manner that renders impossible the vehicular access which frontage requirements are intended in part to ensure; it does not create a material issue of fact whenever municipal officials are of the opinion that vehicular access could be better provided for. As a rule of thumb, we would suggest that the Gifford case should not be read as applying to a plan, such as the one before us, in which the
Under G. L. c. 41, § 81BB, as appearing in St. 1957, c. 199, § 2, costs are not to be allowed against a planning board “unless it shall appear that [the] board acted with gross negligence or in bad faith.” No such showing was made in this case.
The judgment is amended by striking the award of costs. As so amended, the judgment is affirmed.
So ordered.
The difficulties asserted in these affidavits seem mitigated to some extent by the thirteen-foot separation, shown in figure 2, between the lot lines and the Beaver Street curbing, permitting a twenty-foot wide driveway to be perpendicular to the traveled portion of the street for a distance of thirteen feet from the intersection. The thirteen-foot strip was presumably intended to accomodate a tree belt and sidewalk.
Presumably such costs would be borne by the landowner or utility company, not by the city.
We are unaware of any municipalities which impose such requirements.
Reference
- Full Case Name
- Leo Gallitano & another v. Board of Survey and Planning of Waltham
- Cited By
- 1 case
- Status
- Published