GARY SACKRIDER and MARY SACKRIDER v. ROBERT GORE, ROBERT FORD, HOLLY LANGER, JOSEPH HILL, J. STEVEN MERRIAM, JR., ELLEN NESTERVICH, and ROBERT STEVENS, as they are members of the BOXFORD PLANNING BOARD; and BARBARA JESSEL, CHARLES COSTELLO, NEIL OLANSKY, ROBERT WAS, and JOSEPH CALLAHAN, as they are members of the TOWN OF BOXFORD BOARD OF SELECTMEN

At issue in this case is the plaintiffs’, Gary and Mary Sackrider, attempts to subdivide their six-acre property located at 154 Spofford Road in Boxford. After voluntarily withdrawing a short road subdivision plan from consideration, the plaintiffs submitted a definitive subdivision plan to the defendant Boxford Planning Board (the “board”). After the board failed to take final action within 135 days, it purported to disapprove the plan and rescind any constructive approval of such plan on January 21, 2004. Since that meeting was not properly noticed, the board again voted to rescind constructive approval on February 11, 2004.

The plaintiffs have appealed from the board’s actions under several theories. Count one is the plaintiffs’ appeal under G.L. c. 41, § 81BB, claiming they are aggrieved by the board’s refusal to recognize that their subdivision plan was constructively approved due to the board’s failure to take final action within 135 days after the submission of their definitive subdivision plan, as required by G.L. c. 41, § 81U. Count two is the plaintiffs’ appeal from the board’s January 21, 2004 rescission of the constructive approval. The plaintiffs claim that proper notice was not given and the reasons given by the board for rescinding the approval are not valid. Count three is the plaintiffs’ appeal of the board’s February 11, 2004 rescission of the constructive approval. The plaintiffs claim that the board is estopped from rescinding its approval, the plan met all the requirements of the subdivision control law and Board of Health requirements, and the rescission “exceeded the authority of the Board, was arbitrary, unreasonable, an abuse of discretion and contrary to the subdivision control law.” Third Amended Complaint at 8 (Feb. 8, 2006). Count four is the plaintiffs’ request for a declaratory judgment under G.L. c. 240, § 14A and c. 231A, §1. The plaintiffs claim that the Town of Boxford Zoning Bylaw’s (the “Bylaw”) provision regarding irregularly shaped lots (§ 196-24.K) “prohibits the plaintiffs from subdividing their property, wastes their land and constitutes an arbitrary, unreasonable, and oppressive deprivation of plaintiff’s private property interests.” Id. at 10. They also claim that the provision is “invalid in that the bylaw is arbitrary, unreasonable and does not serve legitimate government purposes both on its face and as applied . . . .” Id. The plaintiffs also argue that Bylaw § 196-24.K violates the requirements of G.L. c. 40A, § 4, creates spot zoning, and is exclusionary. Finally, count five is the plaintiffs’ request for a declaratory judgment that their application for a permit under the Scenic Roads Act to cut down four trees and remove stones for their subdivision was constructively approved.

The defendants contend that regardless of the board’s failure to act within 135 days or properly notice the January meeting, the board properly rescinded any constructive approval of the plaintiffs’ plan. They also contend that Bylaw § 196-24.K is valid and that there was no constructive approval of the plaintiffs’ Scenic Roads Act application.

Both parties have moved for summary judgment. [Note 1] For the reasons set forth in the court’s Memorandum and Order on the Parties’ Cross-Motions for Summary Judgment of this date, I first find and rule that the plaintiffs’ definitive subdivision plan was not constructively approved. Second, I find and rule that although the board’s January 21, 2004 actions were not valid, the February 11, 2004 rescission was proper and within the board’s authority. Third, I find and rule that Bylaw § 196-24.K is a reasonable provision that serves a legitimate government purpose and is therefore valid as applied and on its face. Fourth and finally, I find and rule that the board’s decision to defer ruling on the plaintiffs’ Scenic Roads Act application until a final subdivision plan (with a final road layout) is approved was reasonable and within its allowable discretion and thus the application was not constructively approved.

SO ORDERED.

By the court (Long, J.)