EDWARD J. BAGGIA, Trustee of NINETY THIRD REALTY TRUST v. TOWN OF ROCKLAND PLANNING BOARD

Edward J. Baggia, trustee of Ninety Third Fund Realty Trust (henceforth “Baggia”) is the owner of a parcel of land in Rockland, Massachusetts. His land is shown as lot 65 on the Town of Rockland Assessor’s Map 19 on file in the Town Assessor’s office. He originally purchased Lots 64 and 65 from Bank One, N.A. in 2004. Baggia then conveyed Lot 64 to Tricia Eddy in 2004 for $1.00 before reacquiring the lot from her in 2005 again for $1.00. In 2005 he sold Lot 64 to John Melchione for $309,000.00. Lot 64 is a part residential and part industrial zoned non conforming lot with a total area of not more than 16,600 square feet and contains a house and a garage. Lot 65 is also a non conforming lot that is zoned for industrial use. [Note 1]

On or about January 18, 2007, Baggia submitted a Form A application, together with the requisite Plan, to the Rockland Planning Board (“the Board”), in accordance with the Rockland Zoning By-Laws. He did so in accordance with the instructions of Rockland’s town counsel. This plan showed the boundaries of Lot 64 and Lot 65. The plan filed with the Form A application is also known as an “Approval Not Required Plan” (henceforth “ANR Plan”). Under G.L. c. 41 § 81P lot owners may submit ANR Plans to local planning boards and request that the planning board endorse the Plan, after concluding that the land shown thereon does not constitute a subdivision.

On or about February 9, 2007, the Board filed its decision with the town clerk declining to endorse Baggia’s Application, finding that parcel 64 on the Plan, at 16,600 sq. ft., failed to meet the zoning requirements for lot size, which is 32,670 sq. ft. The Board also found that because the plan showed Lot 64 as well as Lot 65 the form required the signature of the owner of lot 64.

On or about February 26, 2007, Baggia filed a complaint against the Board pursuant to G.L. c. 41 § 81BB appealing the decision not to endorse his ANR Plan (Case No. 341959). On or about April 2, 2007, the Board filed its answer with the court, contending that “the submitted Plan was not entitled to endorsement by the Planning Board as not requiring approval of subdivision, because the Form A Application was not signed by the owners of all land contained in the lots shown on the Plan, in violation of the Rules and Regulations of the Planning Board.” (Emphasis added). This apparently referred to the fact that, while lot 64 appeared on the plan, there was no signature from the owner of Lot 64.

On or about June 27, 2007, Baggia submitted to the Board a second Form A Application and Plan. This revised Plan was created by a surveyor, on behalf of Baggia, for the expressed purpose of satisfying the ANR Plan process and delineated only the perimeter of Lot 65. This plan, also done in accordance with the instructions of Rockland’s Town counsel, showed that the property had the required setback requirements as outlined in the Zoning By-Laws.

On or about July 19, 2007, the Board declined to endorse Baggia’s second ANR Plan because, as their decision states, “The deed references on the plan don’t match up with the lot shown on the presented plan. There is no information shown to prove ownership of the property is as shown on the plan.” Baggia nevertheless recorded his perimeter plan with the Plymouth County Registry of Deeds on July 25, 2007.

On or about July 31, 2007, Baggia filed a second complaint in the Land Court pursuant to provisions of G.L. c. 41 § 81BB, appealing the Board’s second denial to endorse his ANR Plan (Case No. 351870). Both parties filed motions in this court seeking consolidation of the two actions. The court granted their motions and it is the consolidated action that is the subject of this decision.

Plaintiff has moved for summary judgment and Defendant has cross-moved for summary judgment. Plaintiff and defendants came before me to argue their motions and have both submitted written memorandums of support of their respective positions. “Summary Judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643–44 (2002); Mass. R. Civ. P. 56(c). Whether a fact is material or not is determined by the substantive law, and “[a]n adverse party may not manufacture disputes by conclusory factual assertions.” Ng Bros., 436 Mass. at 648; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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). Here there is no factual dispute. Accordingly, summary judgment may enter on whether the board properly declined to endorse Baggia’s ANR Plans.

In hearing this appeal the court reviews the matter de novo and finds facts in order to determine the validity of the Planning Board’s decision. Mac-Rich Realty Cponstr. Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 81 (1976). The court is to determine whether the Board exceeded its authority. Strand v. Planning bd. of Sudbury, 7 Mass. App. Ct. 846 , 847 (1979). Plaintiff Baggia seeks the court’s judgment that the Rockland Planning Board exceeded it’s authority in declining to endorse his two Approval Not Required Plans.

Chapter 41 § 81P provides in part:

Any person wishing to cause to be recorded a plan of land situated in a city or town in which the subdivision control law is in effect, who believes that his plan does not require approval under the subdivision control law, may submit his plan to the planning board of such city or town in the manner prescribed in section eighty-one T, and, if the board finds that the plan does not require such approval, it shall forthwith, without a public hearing, endorse thereon or cause to be endorsed thereon by a person authorized by it the words "approval under the subdivision control law not required" or words of similar import with appropriate name or names signed thereto, and such endorsement shall be conclusive on all persons. Such endorsement shall not be withheld unless such plan shows a subdivision. G. L. c. 41, § 81P.

Upon Baggia’s submission of an application for ANR Plan endorsement, the only consideration before the planning board was whether the plans showed a subdivision. See Bisson v. Planning Board of Dover, 43 Mass. App. Ct. 504 , 506 (1997); Long v. Board of Appeals of Falmouth, 32 Mass. App. Ct. 232 , 235-236 (1992); Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 , 604 (1980). The Board claimed that the first ANR Plan failed to meet the requirement of the Planning Board’s Rules and Regulations because the owners of all land contained in the lot or lots in question did not sign the plan. [Note 2] The plan did in fact show both Lots 65 and 64. However, Baggia had previously conveyed Lot 64 to John Melchione in 2005 for consideration of $309,000.00. The form accompanying the plan did not indicate any intention to have Lot 64 considered as part of his ANR Plan; rather it specifically states that Lot 65 was the property the plan intended to reflect. It appears that filing a plan delineating Lot 64 as well as Lot 65 was simply a mistake on Baggia’s part. [Note 3] However, because the statute requires signatures of all of the owners of land displayed on the plan, the Board properly denied his application for endorsement of his first ANR plan. That denial was therefore not arbitrary, in excess of statutory authority, an abuse of discretion, or otherwise outside the law, as Baggia alleges.

After the Board declined to endorse his first ANR plan, Baggia engaged a surveyor to draft a new plan of Lot 65’s perimeter. This plan cured the defects cited by the Board in their first decision by excluding Lot 64 and showing Lot 65 as it had been pictured on the map since 1918, when it was separated by conveyance from the Howland parcel. [Note 4] The Board argues that the new plan does not correctly establish the boundary lines of ownership for Lot 65 because the deeds of abutting properties are vague in their description of the neighboring land and further contends that Lot 65 was created by the 2005 conveyance of Lot 64. This court disagrees, finding that Baggia, through a comprehensive title search, has shown that Lot 65 existed in roughly the same dimensions as it was pictured in the Plan since 1918. [Note 5] Moreover, it is not disputed by the Board that this second plan did not show a subdivision of Lot 65 and that the proper frontage existed.

Once the Board determined that there was no subdivision indicated on the plan, the Board was required to endorse the second ANR Plan. G.L. c. 41 § 81P; Bisson, 43 Mass. App. Ct. at 508; Long, 32 Mass. App. Ct. at 235-236; Smalley, 10 Mass. App. Ct. at 605. The determination of whether a “perimeter plan” qualifies for ANR endorsement is a “mechanical exercise.” Stefanick v. Planning Board of Uxbridge, 39 Mass. App. Ct. 418 , 422 (1995). See Bisson, 43 Mass. App. Ct. at 504 (Endorsement of an ANR plan should be a routine and ministerial act that neither allows for, nor requires discretion on the part of the planning board.) Accordingly, I hold that the Board exceeded their authority when they did not endorse Baggia’s second ANR Plan.

The Board argues that they could not endorse the plan because they were skeptical of the property lines delineated on Baggia’s second ANR Plan. However, a comprehensive inquest into the validity of the property lines is well outside of the scope of authority of the Rockland Planning Board. As Bisson states, the only question before the Planning Board is whether or not the plan shows a subdivision, of the property. Id. Baggio’s second plan does not show a subdivision nor does the Board argue that it does. That is where the Board’s inquiry should end. To allow the Planning Board to pick apart every small detail in the ANR Plan would be to assign to them more authority than the statute allows on these matters. That is not the place of this court.

G.L. c. 41 § 81P is intended to give planning boards the power to endorse, or not endorse, plans based on the presence or lack thereof of a subdivision on the lot presented to the board on the plan. That is all of the power the statute gives to the board. The statute does not state that the board must endorse the boundary lines, nor is there case law interpreting the statute as giving it that power. The Board cites Stefanick and Burke for the proposition that since the ANR Plan approval process is supposed to be a mechanical and non-discretionary task, they cannot endorse the second ANR Plan because that endorsement would require additional fact finding. They claim that additional fact finding would make the task not mechanical. While it is true that the law states that ANR Plan endorsement is a mechanical and non-discretionary task, the inverse, as argued here by the Board, is unsupported by statutory or case law Authority. The Board’s reasoning that they must engage in a further adjudication to clarify the boundaries of the parcel, and that this “non-mechanical” exercise would preclude them from approving the Plan is misguided. Stefanick and Burke simply state that the task before the planning board must be limited to deciding whether there is a subdivision or not. Other matters, such as boundary disputes, are not for the planning board to decide as part of the ANR Plan review process. Therefore this argument fails.

The Board argues that the plan should not have been accepted for recording at the Registry of Deeds without the Planning Board’s endorsement. However, on the written forms accompanying both the first and second drawn plans, Baggia states that the ANR Plan endorsement was only sought for Lot 65. Accordingly when Lot 64 was included in the drawing accompanying the first plan, the Board properly denied their endorsement. However, the second plan was a correction of the first plan. It properly showed only Lot 65, the lot for which Baggia sought endorsement in both plans, and delineated accurate boundaries according to the title search conducted at the plaintiff’s request. Accordingly’ the second ANR Plan should have been approved because the plan correctly showed the property, had the proper frontage, and did not show a subdivision. To make any further inquiry would be to supercede the power G. L. c. 41, § 81P assigns to the Planning Board. Plaintiff’s motion is thereby granted in part and denied in part and Defendant’s motion is denied in part and granted in part.

Judgment shall enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: October 2, 2008