Judge Says DRB
Misread Town Plan

Judge Meredith Wright’s opinion in the State Environmental Court was a response to the appeal of the decision of the Randolph DRB on Oct. 31, 2006 to deny Kevin Blakeman of Sharon permission to build a nine-unit apartment building on Sunset Hill.

Multi-unit housing is a permitted use in the Rural 5-Acre zoning district, but Blakeman needed to receive a site plan permit for the way he laid out his proposed project.

The DRB denied the permit on the basis that it failed to meet several aspects of Site Plan Criterion 4.1(a) and 4.1(b).

In discusing criterion 4.1(a), the DRB did not find any violation of specific regulations, Judge Wright noted. Rather, the DRB discussed the "purpose statement" for the district. It concluded that the property did not comply because it would not be suitable for an on-site septic disposal system for nine units.

However, the application proposes—and the town has approved—a connection to the municipal system, so that an on-site system is not necessary.

Judge Wright found that the development did not need an on-site septic plan. Moreover, she said, the Randolph Town Plan specifically reflects "a preference for municipal sewer connection where possible."

Not only is the purpose statement not violated, she wrote, the application specifically "meets the purpose statement for the district" in its approach to sewage disposal.

The judge also said that the DRB erred in using selective elements of the Town Plan as a basis for denying the permit. First, she noted, the decision did not claim that the design or layout of the site plan violated the Town Plan. Rather, the DRB focused on the effect of a nine-unit building on a road of single-family homes, a building which is explicitly permitted in the zoning district.

In any case, the DRB can’t use the Town Plan to reject a zoning permit, she said.

"Only those provisions incorporated in the (zoning) bylaws are legally enforceable," she wrote, quoting a 1979 court decision.

Also, Judge Wright said, the DRB did not identify the overall "intent" of the Town Plan but was selective about which goals to use and which to ignore.

While criticizing the multi-family residential project, the DRB did not spell out why such a use violates the Town Plan, she said.

"Rather, (the plan’s) findings … seem instead to support the contrary conclusion that the proposal would meet this goal, that is, that it would fill in a compact pattern of settlement rather than promote sprawl."

Finally, Judge Wright criticized the DRB for not following its own zoning ordinance.

The DRB concluded that even though the property is within the Gateway Commercial zoning district, "it should more properly be placed in the new Residential zoning district," she said.

But, she continued, "it is not for the DRB (or for this court) to change or second-guess what is found in the Town Plan … such activity is inappropriate within the scope of this application for site plan approval."

Again in regards to Criterion 4.1(b), discussing multi-family buildings in a single-family area, the judge wrote that the Town Plan and zoning ordinance had considered this use to be appropriate.

"The DRB cannot substitute its judgment for the process that resulted in the Town Plan," she said.