Nexum Development Corp. v. Planning Board
943 N.E.2d 965, 79 Mass. App. Ct. 117, 2011 Mass. App. LEXIS 379 (2011)
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Rule of Law:
A planning board must deny a developer's applications for a special permit and subdivision plan when the developer fails to strictly comply with specific local by-law requirements for calculating project density and when the project cannot satisfy conditions precedent imposed by the local board of health regarding essential services like water supply.
Facts:
- Nexum Development Corp. (Nexum) owned a thirty-two acre tract of land in Framingham that was largely wooded and featured a large hill.
- The property had no existing connections to any municipal water supply or sewer system.
- Nexum proposed to build a 'cluster development' of twenty-four single-family residences, with the remainder of the property reserved for open space.
- The development plan included a common well for drinking water and a common septic system for waste disposal.
- A Framingham by-law required developers to calculate the maximum permissible number of units (density) by determining how many 'buildable' lots a conventional subdivision would yield.
- The by-law specified that a lot was 'buildable' only if certified by a soils test consistent with the state environmental code (Title 5).
- Nexum did not conduct individual soils tests on each lot shown on its preliminary density yield plan to certify them as 'buildable'.
Procedural Posture:
- Nexum Development Corp. (Nexum) submitted applications to the Planning Board of Framingham (board) for a special permit and approval of a subdivision plan.
- On March 25, 2004, the board denied both of Nexum's applications.
- Nexum appealed the board's two denials to the Massachusetts Superior Court (trial court).
- The Superior Court held a bench trial and issued a judgment denying Nexum's appeals, thereby upholding the board's decisions.
- Nexum (appellant) appealed the Superior Court's judgment to the Massachusetts Appeals Court, with the Planning Board of Framingham as the appellee.
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Issue:
Does a planning board properly deny a developer's applications for a special permit and subdivision plan when the developer fails to conduct individual soil tests on each proposed lot to determine project density as required by a local by-law, and cannot satisfy the board of health's conditional approval regarding water supply?
Opinions:
Majority - Mills, J.
Yes. A planning board's denial of a developer's applications is proper when the developer fails to comply with clear by-law requirements and cannot satisfy conditions imposed by the board of health. The Framingham by-law unambiguously required a soils test on each lot of the preliminary density plan to determine the maximum number of allowable units. Nexum's failure to conduct these tests meant it did not properly establish the project's permissible density. The board’s earlier, tentative acceptance of the density calculation was explicitly advisory and not binding. Furthermore, the Board of Health's (BOH) approval was conditioned on future proof of an adequate water supply, a condition subsequent that was beyond Nexum's control and potentially impossible to satisfy. A planning board cannot approve a plan that does not comply with BOH recommendations; therefore, given the unmet conditions, the board was legally required to deny the applications. Although the board erred by not initially providing written reasons for its denial, a remand is futile because no legally permissible action by the board could change the outcome.
Analysis:
This decision reinforces the principle of strict compliance in land use and zoning law, emphasizing that developers must adhere to the precise technical requirements of local by-laws. It solidifies the significant power of local boards of health, confirming that a planning board is bound by a BOH's negative recommendation or unmeetable conditions concerning public health and safety. The case also provides a practical exception to the rule requiring remand when a board fails to state its reasons, establishing that remand is inappropriate under a 'futility' doctrine where the board's decision was legally compelled and could not be altered.
