## Facts

- Nexum Development Corp. proposed a 24-lot open-space residential (cluster/OSRD) project on a 32-acre wooded tract in Framingham, Massachusetts, without municipal water or sewer service.
- The project contemplated a common well and a common septic system, with remaining land preserved as open space.
- Nexum submitted (1) an OSRD special permit application and (2) a definitive subdivision plan to the Planning Board of Framingham.
- Under the zoning by-law’s OSRD provisions, Nexum was required to submit a “density yield plan” showing a conventional subdivision layout where each lot is buildable; the by-law required soils testing “on each lot shown” on that yield plan.
- Nexum did not conduct soils tests on every lot shown on its yield plan, relying instead on limited testing and inference for the remaining lots.
- The Framingham Board of Health issued only a conditional approval of the proposed on-site water supply, dependent on later satisfaction of multiple requirements, including items potentially outside Nexum’s control.
- On March 25, 2004, after extended processing, the planning board denied both the special permit and the definitive plan and did not provide detailed contemporaneous reasons.

## Issues

1. Whether the planning board’s failure to state reasons for denying the special permit and disapproving the definitive subdivision plan required remand.
2. Whether the OSRD by-law required soils tests on each lot shown on the density yield plan as a prerequisite to establishing permissible project density.
3. Whether the conditional and uncertain nature of the Board of Health’s water-supply action, and the evidentiary record on adequacy, required denial of the applications.

## Decision

- The Massachusetts Appeals Court affirmed the Superior Court judgment upholding the planning board’s denials.
- The board’s failure to state reasons was error, but remand was unnecessary because applicable law required denial on the established record.
- Nexum failed to establish allowable OSRD density because it did not perform soils tests on each lot on the density yield plan as required by the by-law.
- The proposed water supply was not adequately established, and the Board of Health’s action was contingent on conditions subsequent beyond Nexum’s control and potentially impossible to satisfy, providing an independent basis requiring denial.

## Legal Principles

- A planning board’s statutory failure to provide detailed reasons for denial may be treated as nonprejudicial where the governing law and record make approval unlawful and no practical issues remain for further municipal consideration.
- Where an OSRD by-law conditions density on a yield plan demonstrating buildable lots, an explicit requirement for soils testing on each lot must be satisfied; sampling and inference do not establish permissible density.
- Subdivision and related land-use approvals may not be granted when essential public-health infrastructure (such as potable water supply) is not shown to be adequate at the time of decision; a health board action that is materially contingent and uncertain cannot supply the necessary assurance.

## Conclusion

The court upheld denial of both the OSRD special permit and definitive subdivision plan because Nexum did not comply with the by-law’s lot-by-lot soils testing requirement to establish density, and because the project’s on-site water supply lacked reliable approval and adequate proof, making approval legally impermissible despite the planning board’s failure to provide detailed reasons.


Nexum Dev. Corp. v. Planning Bd. of Framingham, 79 Mass. App. Ct. 117, 943 N.E.2d 965 (2011)