R. D. MATTHEWS CONSTRUCTION COMPANY, INC. v. THE BOARD OF APPEALS OF THE TOWN OF DUXBURY and RICHARD MACDONALD, as DIRECTOR OF INSPECTIONAL SERVICES for THE TOWN OF DUXBURY

Plaintiff filed its unverified Complaint on October 24, 2002, seeking mandamus relief and a declaratory judgment relative to the interpretation of a special permit issued by Defendant Board of Appeals of the Town of Duxbury (the “ZBA”) in 1979 (the “Special Permit”) involving the buildability of certain lots currently owned by Plaintiff. Defendant Richard MacDonald, Director of Inspectional Services for the Town of Duxbury (“Inspectional Services”) (together with the ZBA, “Defendants”) filed an Answer on November 25, 2002.

On December 22, 2005, Plaintiff filed its Motion for Partial Summary Judgment, together with supporting memorandum. [Note 1] Defendants filed their Opposition and Cross-Motion for Summary Judgment on March 3, 2006, together with supporting memorandum and Statement of Additional Material Facts. A hearing was held on all motions on October 4, 2006, and all motions were taken under advisement. At the hearing, this court discussed the issue of Plaintiff’s exhaustion of administrative remedies with the parties and suggested that the parties consider alternative methods of resolving the issues in this case. At a status conference on November 16, 2006, Plaintiff indicated that it was pursuing additional zoning action with Defendants, and the parties asked this court not to act on the cross-motions for summary judgment.

On May 1, 2007, Plaintiff filed its First Amended Complaint, appealing, pursuant to G. L. c. 40A, § 17, two decisions of the ZBA which upheld Inspectional Services’ denial of the buildability of certain lots owned by Plaintiff and the resulting denial of applications for building permits filed by Plaintiff. Defendants filed their Answer on April 9, 2007. On June 1, 2007, Plaintiff filed its Motion for Summary Judgment, together with supporting memorandum, Appendix and Affidavit of Richard D. Matthews. Defendants filed their Opposition and Cross-Motion for Summary Judgment on July 2, 2007, together with supporting memorandum and Statement of Additional Material Facts. On July 31, 2007, Plaintiff filed its Reply Brief. This court held a hearing on both motions on October 29, 2007. A Decision of today’s date has been issued.

In accordance with that Decision it is:

ORDERED and ADJUDGED that the Special Permit does not limit the construction of homes in the subdivision known as “Tinkertown Ponds” (the “Subdivision”) to three bedrooms each.

ORDERED and ADJUDGED that there is nothing to prohibit Plaintiff from going forward on its application for septic system permits for Lots 18 and 20, or a building permit for any of the three remaining vacant lots in the Subdivision: Lots 18, 20, and 36 (the “Vacant Lots”).

ORDERED and ADJUDGED that the ZBA’s decisions relative to the enforcement of terms extraneous to the Special Permit are arbitrary, capricious, and unreasonable, and beyond the scope of its authority.

ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is ALLOWED and Defendants’ Cross-Motion for Summary Judgment is DENIED. Specifically, the Town (by and through the Board of Health, Inspectional Services, or the ZBA) cannot deny Plaintiff’s applications for a septic permit or a building permit regarding the Vacant Lots on grounds that four-bedroom plans violate the Special Permit.

By the court. (Sands, J.)