MISC 05-314203

September 19, 2008


Trombly, J.


This action was commenced by Deborah Bottomley and Tracy Brais (collectively “Plaintiffs”) on October 6, 2005, seeking declaratory judgment under M.G.L. c. 240, §14A, to invalidate certain conditions placed on the grant of a special permit by the Zoning Board of Appeals of the Defendant Town of Plainville for the removal of earth from several lots of Plaintiffs’ real property.

On February 15, 2008, Plaintiffs filed a Motion for Summary Judgment. On March 17, 2008, Defendant filed an Opposition to Plaintiff’s Motion for Summary Judgment as well as Cross-Motion for Summary Judgment and a memorandum in support thereof. Also on March 17, 2008, Defendant filed an Affidavit of Kathleen M. Sandland. The motions were argued on June 23, 2008 and taken under advisement by the Court (Trombly, J.).

Based upon the record before me, I find that the following facts are not in dispute:

1. The Rules and Regulations Governing the Subdivision of Land of the Planning Board of the Town of Plainville were adopted in 1971.

2. Plaintiffs are the owners, either individually or together, of five (5) unimproved lots of real property in Plainville.

3. Each of the five lots is subdivided into smaller lots (hereinafter “Lots”) shown on a plan recorded with the Norfolk Registry of Deeds in 1912 (hereinafter “1912 Plan”) a copy of which is attached hereto.

4. On the 1912 Plan, each of the Lots has frontage on either Ivor Avenue or Elm Street.

5. Ivor Avenue and Elm Street exist only on the 1912 Plan and have never been constructed in reality.

6. On or about October, 2003, Plaintiffs caused an application to be submitted to the Planning Board of Plainville for the construction of Ivor Avenue and Elm Street.

7. On November 4, 2003, after meeting with Plaintiffs or their agents, Plainville Planning Board wrote a letter to the Plainville Board of Selectmen recommending that the Board of Selectmen impose certain conditions in the event that it approved the Plaintiffs’ application.

8. On or about December 15, 2003, the Board of Selectmen approved the plan subject to certain conditions. These conditions were subsequently listed in a letter from the Board of Selectmen to the Plainville Town Clerk, dated February 9, 2004.

9. On January 26, 2004 the Planning Board approved Plaintiffs’ proposed plan subject to the Board’s own set of conditions in a letter of the same date.

10. On or about January 12, 2004, the Zoning Board of Appeals of Plainville received an application for a special permit to allow earth removal incidental to the plan for the construction of Ivor Avenue and Elm Street and the installation of utilities therein.

11. On February 17, 2004, the board granted this special permit subject to fifteen (15) conditions.

12. Condition 13 of the Earth Removal Special Permit incorporated by reference all of the conditions listed in the letters of the Planning Board dated November 4, 2003 and January 26, 2004 and the letter of the Board of Selectmen dated February 9, 2004.

13. The Planning Board’s letter of November 4, 2003 recommends a bond to cover road work and landscaping.

14. The Planning Board’s letter of January 26, 2004 lists as a condition that Plaintiffs post a bond for road work and landscaping.

15. The Board of Selectmen’s letter of February 9, 2004 lists as a condition that Plaintiffs post a bond for road work in an amount to be determined by the Planning Board and based on the Plaintiffs’ estimated cost of the road work.

16. The Zoning Board of Appeals’ grant of February 17, 2004 lists as a condition that Plaintiffs cause a surety company post a bond of seven thousand five hundred dollars ($7,500.00) and that Plaintiffs post the bonds specified by the Planning Board and Board of Selectmen.

17. The Earth Removal Special Permit was set, by its own terms, to expire one (1) year from the end of the appeal period and has done so.

18. Plaintiffs have never appealed the terms of the approval of the plan or the special permit.

Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Anderson v. Liberty, 477 U.S. 242, 247-48 (1986). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Id. at 248. In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Id.

With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). However, the party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings, [Note 1] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with…affidavits, if any…” Mass. R. Civ. P. 56(c).

The Court finds that there are no material issues of fact and that those facts in controversy are not material to this case. Thus, this case is ripe for judgment as a matter of law.

This case presents a complicated history and a series of legal issues. Plaintiffs express a great deal of discontentment but demonstrate little legal grounding. Nevertheless, the following issues seem clearly in controversy in this case: (1) The applicability of Zoning By-Law to the Lots, pursuant to M.G.L. c. 240, §14A and (2) The interpretation of Plainville’s Zoning Bylaws regarding lot frontage requirements.

Plaintiffs claim that the Zoning Board of Appeals does not have the authority to condition the Earth Removal Special Permit by referencing the conditions listed by the Planning Board and Board of Selectmen. Defendant makes a nuanced but highly persuasive argument; either Plaintiffs seek a determination as to the validity of the authority exercised by the Zoning Board over the Plaintiffs’ Lots or the validity of this authority exercised in general. In either event, the Court does not have jurisdiction to pass judgment.

M.G.L. c. 240, §14A allows a claimant to obtain determination by the Land Court of “the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of…land.” See M.G.L. c. 240, §14A. The primary purpose of §14A is “…to determine how and with what rights and limitations the land of the person seeking an adjudication may be used under the provisions of a zoning enactment in terms applicable to it...” Harrison v. Braintree, 355 Mass. 651 , 654 (1969); see id.; Amberwood Development Corp. v. Board of Appeals of Boxford, 65 Mass. App. Ct. 205 , 208-09 (2005); Clark & Clark Hotel Corp. v. Building Inspector of Falmouth, 20 Mass. App. Ct. 206 , 210 (1985). Although §14A is to be broadly construed, it is implicit in this purpose that such a challenge must be made in the context of its application to a particular piece of land, and not made to the general applicability or validity of the by-law or regulation. See G.L. c. 240, §14A; Harrison, 355 Mass. at 654; Hansen & Donahue, Inc. v. Norwood, 61 Mass. App. Ct. 292 , 295 (2004). Here, Plaintiffs appear to be seeking a judicial determination that the Zoning Board of Appeals does not have authority under the Zoning By-Laws to condition special permits by referencing conditions created by the Planning Board or the Board of Selectmen, in general, and not as applied to their Lots or any other particular land. Thus, the Court does not have authority under §14A to pass judgment on such a claim.

In the alternative, Plaintiff may be seeking a determination of the validity of the authority exercised by the Zoning Board over the Plaintiffs’ particular Lots. The Court does not have jurisdiction over this challenge either, because a challenge of the authority of a permit granting authority in its issuance of a conditional permit is a challenge to the permit itself. See Iodice v. City of Newton, 397 Mass. 329 , 334 (1986). Thus it must comply with the appeals procedure pursuant to M.G.L. c. 40A, §17. G.L. c. 40A, §17. G.L. c. 240, §14A cannot be used to circumvent this appeals procedure. See Whitinsville Retirement Soc. v. Town of Northbridge, 392 Mass. 757 , 763-64. (1985). It is undisputed that Plaintiffs have never appealed the issuance of the Earth Removal Special Permit. Without having exhausted their administrative, appellate remedies, the current action before the Court is untimely.

Without deciding the issue, the Court notes that it seems clear that the Zoning Board of Appeals has the authority to condition the issuance of a special permit in the manner that it did in this case. Both Massachusetts law and Plainville Zoning By-Laws authorize the Zoning Board of Appeals to attach certain conditions to an earth removal permit. See M.G.L. c. 40A, §9; Plainville Zoning By-Law Section 2.9.3. Plaintiffs’ argument that the Zoning Board lacks the authority to delegate its powers to the Planning Board and Board of Selectmen is disingenuous. The Planning Board and Board of Selectmen approved the Plaintiffs’ plan subject to certain conditions, independently of the Zoning Board. The Zoning Board incorporated these conditions by reference in its grant of the Earth Removal Special Permit. This reference essentially rewrote the same conditions listed by the two Boards into the Special Permit and is considerably different than a delegation of the Zoning Boards powers. Having said this, the Court does not rule on whether the conditions of any of these Boards was rational or not.

I agree with Defendant’s contention that while Plaintiff’s Complaint purports to be a challenge to the Zoning Bylaw under color of G.L. c. 240, §14A, it is clear that Plaintiffs are seeking a declaration from the Court that they may construct Ivor Avenue an Elm Street without application for a Earth Removal Special Permit. Nevertheless, the Court does not have authority over this claim either. G.L. c. 240, §14A is explicit in its applicability; it is validly applied to “…a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A or under any special law relating to zoning…” See G.L. c. 240, §14A. §14 applies to zoning restrictions and not other provisions of a town’s by-laws or subdivision control law. See Amberwood Development Corp., 65 Mass. App. Ct. at 208-09. Here, moreover, the Subdivision Control Law was adopted pursuant to M.G.L. c. 41. These regulations are not of the kind contemplated by §14 as necessary to be submitted to the Land Court for the protection of real estate investors. Instead these regulations are, themselves, for the protection of the citizens of the locality, to provide for their health and safety. See M.G.L. c. 41, §81M; Plainville Subdivision Control Law Section 1.2. Unlike zoning restrictions which are intended to aid in the planning of a community and its infrastructure, these subdivision control regulations may not be made subject to judicial determination under M.G.L. c. 240, §14A.

Plaintiffs finally contend that the existence of Ivor Avenue and Elm Street in the 1912 Plan filed with the registry of deeds fulfills the frontage requirements of the Zoning Law, and thus Plaintiffs should not be denied a building permit for the Lots on this ground. Plaintiffs further contend that the Zoning By-Law does not define the term “street,” rendering the provision regarding Lot Frontage vague and indecipherable. This claim is, quite simply, wrong. Section 4.1 of the Zoning By-Law defines “Street” as “a way other than a private way, which affords the principal means of access to the abutting properties. Zoning By-Law §4.1. More importantly, the Ivor Avenue and Elm Street that exist only in the 1912 Plan do not provide any access to the Lots in reality, but only on paper. The Zoning By-Law clearly intends that the frontage requirement be fulfilled by real streets, and not by paper streets. See Shea v. Board of Appeals of Lexington, 35 Mass. App. Ct. 519 , 520 (1993). The purpose of the requirement is not only to give property owners access and utilities to their property, but also to provide for the public safety by way of emergency vehicles. The Lots as they exist are not in compliance with the Zoning By-Law for the purpose of building residential units.


For the foregoing reasons, the Court concludes that the Zoning By-Laws properly require the construction of actual streets to satisfy the frontage requirements before the issuance of a building permit for the Lots. The Court further concludes that it lacks jurisdiction under M.G.L. c. 240, §14A to make a determination of the validity of the Earth Removal Special Permit or the Subdivision Control Law, and accordingly does not consider the merits of those claims any further. These being matters of law, the Plaintiffs Motion for Summary Judgment is hereby DENIED and Defendant’s Cross-Motion for Summary Judgment is ALLOWED.

Judgment shall issue accordingly.

Charles W. Trombly, Jr.


Dated: September 19, 2008


[Note 1] A motion for summary judgment can rest in whole or in part on facts set forth in the moving party’s pleadings if, but only if, they are conceded in the opposing party’s pleadings. Cmty. Nat’l Bank, 369 Mass. at 557, n.6. It may also rest on the allegations contained in the opposing party’s pleadings. G. L. 231, § 87 (“in any civil action pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them”).