KEVIN DOUGLAS, as Trustee of D & L REALTY TRUST v. TIMOTHY L. GLYNN, PATRICK K. LAWTHORNE, CHARLES IOVEN, ARNOLD M. KAUFMAN, ROBERT FOLEY, DIANE M. CHUHA, HATTIE BROOME, DAVID D'ARCANGELO, and JOHN SPADAFORA, as members of the PLANNING BOARD OF THE CITY OF MALDEN, and THE PLANNING BOARD OF THE CITY OF MALDEN

This action was commenced by plaintiff, Kevin Douglas, as Trustee of D&L Realty Trust on June 21, 2006, appealing a decision of defendant, the Planning Board of the City of Malden, pursuant to G.L. c. 41, § 81BB. The Planning Board’s decision denied approval of a definitive subdivision plan, filed by plaintiff on October 31, 2003, concerning a parcel of real property located off Williams Street in Malden.

On December 13, 2006, plaintiff filed a motion for summary judgment. Defendants opposed the motion on February 7, 2007. The motion was argued before the Court on the same day and taken under advisement. The Court (Trombly, J.) issued an Order on November 20, 2007, allowing in part and denying in part, the plaintiff’s motion for summary judgment. The Court ruled that with one exception, the grounds on which the Planning Board denied the approval of the plaintiff’s subdivision plan were barred by the doctrine of res judicata and otherwise invalid under the Malden Planning Board Subdivision Regulations, as they stood at the time the subdivision plan was filed. The Court further determined that the question of whether the board properly denied the subdivision plan on the ground that the proposed streets and roadways did not comply with the requirements of a Class A street, pursuant to § V.A.1.(a) of the Subdivision Regulations, remained an unresolved question of material fact, requiring a trial and determination by the Judge.

Trial was held on February 22, 2008, on this limited issue. Karen Smith was sworn to take the testimony. Testifying were Paul A. Marchionda for plaintiff and Michelle A. Romero for defendants. Seven exhibits were admitted into evidence and chalks “A” and “B,” marked for identification. Both parties filed a post-trial memorandum. This is the matter presently before the Court.

After reviewing the record before the Court, I find that the following facts:

1. Plaintiff, Kevin Douglas, as Trustee of the D&L Realty Trust, is the owner of a parcel of land located off Williams Street in Malden (the Property).

2. On July 23, 1996, plaintiff submitted a definitive subdivision plan (the 1996 Plan) for approval by the Planning Board of the City of Malden. On or about February 13, 1997, the Planning Board issued a decision denying the approval the 1996 Plan.

3. On March 3, 1997, plaintiff filed an appeal of the board’s denial of the 1996 Plan to the Land Court, Misc. Case No. 236452.

4. The Court (Scheier, J.) issued a Decision on August 30, 2000, upholding the 1997 Disapproval of the Planning Board. In its Decision, the Court found that the proposed roadway in the 1996 Plan is properly classified as a Class “B” road under § V.A.1.d. of the Malden Planning Board Subdivision Regulations (the Subdivision Regulations).

5. On October 31, 2003, plaintiff filed a definitive subdivision plan (the 2003 Plan) for approval by the Planning Board. [Note 1]

6. The 2003 Plan constitutes certain alternations to the 1996 Plan. Both plans propose access to the subdivision by a public way with a forty foot layout and twenty feet of roadway surface. The proposed access road is a dead-end street in both plans.

7. The 2003 Plan proposes roadways within the subdivision that are wider than the proposed roadways in the 1996 Plan (the Proposed Roadways).

8. The roadways proposed in the 2003 Plan meet the requirements of Class “B” roads, pursuant to § V.A.3.a. of the Subdivision Regulations.

9. The 2003 Plan proposes eighteen (18) lots rather than the twenty-six (26) of the 1996 Plan.

10. The 2003 Plan proposes thirty-two (32) dwelling units rather than the forty-five (45) of the 1996 Plan.

11. After a public hearing on June 14, 2006, the Planning Board voted to deny the approval of the 2003 Plan. [Note 2] The board issued a decision on June 15, 2006, finding that the 2003 Plan failed to meet certain requirements of the Subdivision Regulations.

12. Plaintiff appeals that decision here.

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The standard of review in an appeal, pursuant to G.L. c. 41, § 81BB, is de novo review of the decision of the municipal board. See Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104 , 106, further appellate review denied, 411 Mass. 1101 (1991). However, such review is limited to the reasons for disapproval stated by the board. See Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). While a trial judge may not substitute his or her own judgment for that of the planning board, the board's decision will not be sustained where it has exceeded its authority under the subdivision control law. See Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 21 (1977). “If…reasonable minds might in good faith differ,…the conclusion reached by the planning board should be sustained…and the role of the court is merely to ascertain whether the board exceeded its authority.” Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 809 (1981). The burden of proof to establish that the board exceeded its authority rests on the party challenging the board’s action. See Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548 (1975).

As a result of this Court Order of November 20, 2007, the only issue remaining in the case is whether the Planning Board of the City of Malden properly denied the approval of the 2003 Plan on the ground that the Proposed Roadways did not meet the requirements for Class “A” roads, pursuant to § V.A.3.a. of the Malden Planning Board Subdivision Regulations. Specifically, the Court required further facts in order to determine whether or not the alterations to the Proposed Roadways from the 1996 Plan to the 2003 Plan were sufficiently insignificant such that the application of § V.A.3.a. had been determined and the further argument that the roadways had to meet the requirements of Class “A” was barred by the doctrine of res judicata. It is undisputed that the roadways proposed in the 2003 Plan meet the requirements of Class “B” roads pursuant to the Subdivision Regulations. Therefore, this remaining issue must be precluded.

The doctrine of res judicata comprises both claim preclusion and issue preclusion, also known as collateral estoppel. Heacock v. Heacock, 402 Mass. 21 , 23 n. 2 (1988). “Claim preclusion ‘makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been litigated in the action.” Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 457 (2006), quoting Jarosz v. Palmer, 436 Mass. 526 , 530-31 n.3 (2002). The elements required are: “(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.” Id.

Issue preclusion prevents re-litigation of an issue determined in an earlier action, where the same issue arises in the next action. For there to be issue preclusion, “a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication.” Id. In addition, “the issue decided in the prior adjudication must have been essential to the earlier judgment[, and i]ssue preclusion can be used only to prevent litigation of issues actually litigated in the prior action.” Id.

In Douglas v. The City of Malden Planning Board, the defendant in the instant case argued that the proposed roadways in the 1996 Plan did not meet the requirements of Class “B” roads, pursuant to § V.A.3.a. 8 LCR 358 (2000) (Misc. Case No. 236452) (Scheier, J.). Defendant did not then claim that the proposed roadways fell under the classification of Class “A” roads and were subject to the requirements of that classification under the Subdivision Regulations. Because the parties in the prior case are the same as in the instant matter, the only issue is whether the 1996 Plan and the 2003 Plan are sufficiently similar so as to render the identities of that prior adjudication and the instant litigation, the same. The facts demonstrate that the alterations from the 1996 Plan to the 2003 Plan brought the Proposed Roadways within the requirements of Class “B” roads. The 2003 Plan makes substantial changes to the subdivision itself, decreasing the density and, thereby, the traffic on the Proposed Street. The 2003 Plan proposes eighteen (18) lots, rather than the twenty-six of the 1996 Plan, and thirty-two (32) dwelling units, rather than forty-five.

In its Decision in the prior Land Court action, the Court found that the proposed roadways on the 1996 Plan fall under the classification of Class “B” roads. The alterations to that plan, rather than so changing the nature of the roads to allow for new claims, bring the Proposed Roadways further into conformity with the requirements for Class “B” roads and reduce the characteristics of the neighborhood which might have qualified the roadways for Class “A” status. The prior case having been brought to final judgment on the merits, and defendants not having raised the issue of Class “A” requirements, the matter is precluded. [Note 3]

In addition, plaintiffs argue that the doctrine of judicial estoppel should be applied to prevent defendant from now arguing that the requirements of a Class “A” road apply to the Proposed Roadways. The doctrine of judicial estoppel “is an equitable doctrine which precludes a party from asserting a position in one legal proceeding which is contrary to a position it has already asserted in another.” Fay v. Fed. Nat’l Mortgage Ass’n, 419 Mass. 782 , 788 (1995), quoting Patriot Cinemas, Inc. v. Gen. Cinema Corp., 834 F.2d 208, 212 (1st Cir. 1987). The Commonwealth has recognized judicial estoppel, “at least where the party to be estopped had been successful in its first assertion of its inconsistent position.” East Cambridge Sav. Bank v. Wheeler, 422 Mass. 621 , 623 (1996).

In the instant matter, the Planning Board previously denied the 1996 Plan on the ground, inter alia, that the roadways proposed therein did not meet the requirements as Class “B” roads. In affirming that decision, The Court relied on the implicit determination of the board, that the proposed roadways were properly classified as Class “B” roads. Plaintiffs have now relied on these determinations by attempting to meet the requirements for Class “B” roads. It would be inequitable to allow defendants to subject the subdivision to different requirements, and so, this Court prohibits them from doing so.

CONCLUSION

For the foregoing reasons, the Court concludes that the issue of whether the Proposed Roadways meet the requirements for a Class “A” road is precluded by the doctrine of res judicata. The parties previously litigated the same issue. In the instant case, although plaintiff made alterations from the 1996 Plan to the 2003 Plan, these changes brought the Proposed Roadways further into conformity with the requirements for Class “B” roads and reduced the characteristics of the neighborhood which might have qualified the roadways for Class “A” road status. In addition, the Planning Board is barred by the doctrine of judicial estoppel from now applying the new requirements of Class “A” roads on the Proposed Roadways. The Court and plaintiff have relied on the Planning Board’s assertion that the proposed roadways of the 1996 Plan must meet the requirements as Class “B” roads, and it would be inequitable for the board to now alter that position. This being the only matter remaining in this litigation, the decision of defendant, the Planning Board of the City of Malden is hereby REVERSED.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: February 17, 2009