MARK A. ELBAG v. PETER VAN DYKE, CHRIS SENECAL, AND RICHARD SURRETTE, as members of THE ZONING BOARD OF APPEALS OF THE TOWN OF RUTLAND

This action was commenced by plaintiff, Mark A. Elbag on October 19, 2007, as an appeal, pursuant to G.L. c. 40A, § 17, seeking to annul a decision of defendant, the Zoning Board of Appeals of the Town of Rutland. [Note 1] That decision upheld a decision of the Inspector of Buildings of the Town of Rutland denying the plaintiff’s application for a building permit relative to a parcel of real property, known as and numbered 17 Demon Pond ROW in Rutland, owned of record by plaintiff.

On July 28, 2008, plaintiff filed a motion for summary judgment. Defendants opposed the motion on October 22, 2008. On October, 29, 2008, plaintiff filed a reply brief in support of his motion. The motion was argued the same day, and is the matter presently before the Court.

After reviewing the record before the Court, I find that the following facts are not in dispute:

1. Plaintiff, Mark A. Elbag is the owner of a parcel of land, known as and numbered 17 Demon Pond ROW in Rutland (the Property).

2. On December 16, 2004, plaintiff, Mark A. Elbag filed an application and plan, relative to the Property, seeking endorsement by the Planning Board of the Town of Rutland that approval under the Subdivision Control Law was not required.

3. The Planning Board failed to take any action on the plaintiff’s application and plan by or on January 11, 2005, twenty-one days after the submission.

4. On April 14, 2005, the Rutland Town Clerk issued a Certificate of Approval of the plaintiff’s plan pursuant to G.L. c. 41, § 81P, stating that the board failed to act within the requisite twenty-one days of the plan’s submission and, therefore constructively determined that approval under the Subdivision Control Law was not required.

5. On or about March 28, 2005, plaintiff submitted an application for a building permit, relative to the Property, to the Inspector of Buildings of the Town of Rutland.

6. By letter dated March 22, 2007, the Building Inspector denied the plaintiff’s application.

7. Plaintiff appealed the denial on April 9, 2007, to the Zoning Board of Appeals of the Town of Rutland. Following a hearing on September 5, 2007, the Zoning Board voted to uphold the decision of the Building Inspector. The board issued a decision on October 2, 2007.

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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). 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). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

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 2] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with […] affidavits, if any […].” Mass. R. Civ. P. 56(c).

In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment. Rule 56(c).

General Law chapter 41, § 81P provides that a plan submitted to a municipal board shall be endorsed as approval-not-required, if it the plan does not show a subdivision requiring approval under the Subdivision Control Law. 41, § 81P. General Law chapter 41, § 81L defines the term “Subdivision” and continues to state that

the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision within the meaning of the subdivision control law if, at the time when it is made, every lot within the tract so divided has frontage on (a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon.

41, § 81L.

General Law chapter 41, § 81P provides that where an applicant submits a plan for endorsement as approval-not-required, “[i]f the board fails to act upon [the] plan…within twenty-one days after its submission, it shall be deemed to have determined that approval under the subdivision control law is not required, and it shall forthwith make such endorsement on said plan, and on its failure to do so forthwith the city or town clerk shall issue a certificate to the same effect.” 41, § 81P. The purpose of this time standard is to prevent delay by the municipal board. Bd. of Selectman of Pembroke v. R. & P. Realty Corp., 348 Mass. 120 , 128 (1964); see G.L. c. 41, § 81V; Kay-Vee Realty Co. v. Town Clerk of Ludlow, 355 Mass. 165 (1969).

However, a constructive approval is not above challenge, but “may be tested on appeal under G. L. c. 40A, s. 17, to determine whether facts exist which would have enabled the board to grant the relief sought.” Girard v. Bd. of Appeals of Easton, 14 Mass. App. Ct. 334 , 338 (1982). Without this exception, a municipal board would be able to preempt the zoning bylaw and otherwise act beyond its authority, through inaction. Id.

It is undisputed that the plaintiff’s application and plan were constructively approved by the failure of the Planning Board of the Town of Rutland to take any action within twenty-one days of the application. Plaintiff argues that since he has acquired endorsement of his application and plan, and since such endorsement cannot be granted under G.L. 41, § 81P, without all lots on the plan meeting the frontage requirement, if follows that all the lots on his plan must have been found to meet frontage requirements by the board. This is arguing backwards and the Court does not agree with the logic.

While it is true that a plan does not qualify for approval-not-required endorsement without meeting the frontage requirement, it does not follow that the subject property meets the frontage requirement upon board endorsement of the plan. Such action by the Rutland Planning Board would be contrary to G.L. c. 41, § 81L and § 5 of the Zoning Bylaw of the Town of Rutland and, therefore, subject to challenge. Moreover, the Planning Board could certainly not have made such an unauthorized determination by constructive approval. It is axiomatic that a municipal board does not have the authority to grant more zoning relief through constructive approval than it could have granted by affirmative action.

Plaintiff asks this Court to determine that the Rutland Planning Board may endorse an approval-not-required plan which does not comply with the town’s zoning bylaw, and that such board determination should preempt the zoning requirements. Plaintiff also insists that his argument is not that the constructive approval determined that the property was buildable, but merely that all the lots had frontage. I can see little difference; the frontage requirement of the bylaw is an element of the lots’ buildability, and I will not allow plaintiff to circumvent the bylaw requirements. Accordingly, I rule that the constructive approval of the plaintiff’s application and plan by the Planning Board did not determine that the lots contained in the plan met the frontage requirement of the Zoning Bylaw.

It is undisputed that the plaintiff’s application and plan do not meet the frontage requirement of the zoning bylaw. Therefore, the Zoning Board of Appeals of the Town of Rutland properly upheld the decision of the Inspector of Buildings of the Town of Rutland denying the plaintiff’s application for a building permit. CONCLUSION For the foregoing reasons, this Court concludes that the constructive approval of the plaintiff’s application and plan did not determine that the lots contained in the plan met the frontage requirements of the Zoning Bylaws of the Town of Rutland. Such a determination would be in violation of G.L. c. 41, § 81L and § 5 of the Rutland Zoning Bylaw, § 1.A. of the Subdivision Regulations for the Town of Rutland, Massachusetts and, therefore, beyond the authority of the Planning Board of the Town of Rutland. Because there is no dispute that the plaintiff’s application and plan do not otherwise meet the frontage requirements of the Zoning Bylaws, the Zoning Board of Appeals of the Town of Rutland properly upheld the decision of the Inspector of Buildings of the Town of Rutland denying the plaintiff’s application for a building permit relative to the Property. These being matters of law, the plaintiff’s Motion for Summary Judgment is hereby DENIED and summary judgment is GRANTED to defendants.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: February 18, 2009