Agenda - Planning Commission - 05/01/2008

Home

Zoning Bulletin Fourteenth Amendment-City denies five different subdivision plans proposed by the same landowners, and denies permits necessary for subdivisions Landowners allege city actions violated their substantive due process and equal protection rights Citation: Clark v. Boscher, 514 R3d 107 (1st Cir. 2008) The 1st U.S. Circuit has jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island. MASSACHUSETTS (01l31108)-The Clarks and their neighbor, Perez, combined their adjacent parcels of land in the city, and sought to develop the land as a residential subdivision. Between 1997 and 2003, the Clarks and Perez submitted five different subdivision plans to the city's planning board (the board). Each time the board reject- ed the proposed subdivision plans. The rejections were based on the city's claim of ownership of a part of the property included in the subdivision plans and city concerns regarding the possible contami- nation of an aquifer underlying the land. Specifically, the board rejected the Clark's 1997 subdivision plan because it included a fifty-foot strip of land that was allegedly owned by the city. In 2002, the board summarily rejected plans for two pro- posed subdivisions, presented by the Clarks and Perez. When the same two plans were revised and resubmitted one month later, the city council rejected the Clark's concurrent request that the city's master plan take into account the increased water and sewage capac- ity required by the proposed subdivisions. In April 2002, the board rejected at least one of the Clark-Perez subdivision plans because it included property over which the city claimed ownership. Thereafter, the Clarks and Perez were denied municipal water and sewage service for the proposed subdivisions. They asserted that the municipal water service was denied because they failed to first secure a connection to the municipal sewer line. They also asserted that the connection to the sewer line was denied because they had not yet been connected to the municipal water line and because the city's sewer commission was concerned about the sewer system's capacity. After being denied municipal water and sewage service, the Clarks and Perez submitted to the board their final subdivision plan, which proposed fewer lots and relied on the use of on-site water and waste disposal systems. The city's water commission expressed concerns that the proposed subdivision would threaten the municipal water supply and that its primary access route crossed over a dam. The city's health director expressed concerns that the onsite septic sys- tems would have an impact on the underlying aquifer, and recom- mended the city consider granting access to the municipal sewer and 8 26