JO ELLEN BREWTON, STEPHEN M. BREWTON, BRUCE BROWN, DENNIS ENOS, PATRICK CLOUGHER, ANNE M. DEVICO, PAUL A. DEVICO, MONTIQUE LONGHITANO, JOSEPH LONGHITANO, JOHN NYMAN, LEONE NYMAN, ROGER MCCOY, MARISA MCCOY, and BARBARA NOBLE v. TOWN OF SANDWICH PLANNING BOARD, LAWRENCE SPIEGEL, JEFF MANDEVILLE, BARBARA KIRSCH, JOE VAUDO, SARAH REGAN, JOHN CAMPANALE and TAYLOR WHITE, as they constitute the TOWN OF SANDWICH PLANNING BOARD, and STEPHEN B. JONES and ELIZABETH R. JONES

Plaintiffs filed their unverified Complaint in Misc. Case No. 307230 on March 7, 2005, appealing pursuant to G. L. c. 40A, §17 and G. L. c. 41, §81BB, the grant by Defendant Town of Sandwich Planning Board (the “Planning Board”) of a cluster special permit (the “Cluster Special Permit”) and a definitive subdivision plan (the “Subdivision Plan”) approval to Defendants Stephen B. Jones and Elizabeth R. Jones (the “Joneses”). On March 28, 2005, the Planning Board filed its Answer. The Joneses filed their Answer on April 14, 2005. On October 14, 2005, Plaintiffs filed their Cross Motion for Summary Judgment. The Joneses filed their Motion for Summary Judgment on October 17, 2005. The central issue in both motions was the interpretation and application the Town of Sandwich Protective Zoning By-law (the “Zoning By-law”), specifically section 4441, relative to the allowed number of subdivision lots on approximately 24.46 acres of land on Chipman Road and Route 6A in Sandwich, MA (“Locus”) using a cluster design. The summary judgment motions were heard on December 16, 2005, and a Decision was issued on August 18, 2006 (the “Land Court Decision”). In the Land Court Decision, I denied both motions for summary judgment and found that the Joneses had not presented sufficient evidence entitling them to the number of subdivision lots that they had requested. I remanded the Cluster Special Permit, the Demonstration Plan (as hereinafter defined) and the Subdivision Plan to the Planning Board for further public hearings consistent with the Land Court Decision within thirty days of the date of the Land Court Decision.

Upon the confirmation of the Cluster Special Permit and the Subdivision Plan by the Planning Board to the Joneses, by decision dated February 23, 2007, Plaintiffs filed their unverified Complaint on March 20, 2007 (Misc. Case No. 343350). [Note 1] Defendants filed a Motion to Dismiss on April 26, 2007. At a case management conference on May 8, 2007, Defendants’ Motion to Dismiss was withdrawn and the two cases were consolidated (Misc. Case Nos. 307230 and 343350). Defendants filed their Motion for Summary Judgment on October 22, 2007, together with supporting memorandum, Statement of Material Facts, Statement of Legal Elements, and Affidavits of Edwin H. Gless (“Gless”), and Stephen B. Jones and Elizabeth R. Jones. Plaintiffs filed their Opposition and supporting memorandum on November 26, 2007, together with Affidavits of Jane Estey, Esq. and Richard A. Claytor, Jr. [Note 2] Defendants filed their Reply on December 10, 2007. A hearing was held on the summary judgment motion on December 19, 2007, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 5(c).

I find the following material facts are not in dispute:

1. The Joneses own Locus. Pursuant to the Zoning By-law, Locus is located primarily in an R-2 zoning district. A small portion of Locus lies in the R-1 zoning district.

2. Plaintiffs are owners of property located on Chipman Road and Crowell Road in Sandwich. All Plaintiffs abut Locus.

3. The Joneses created a plan of Locus titled “Preliminary Plan of Rockhill Estates Sandwich, Massachusetts” dated June 13, 2003, and prepared by Edwin H. Gless of Atlantic Design Engineers, L.L.C. (the “Grid”), showing a subdivision of thirteen lots, of which twelve are buildable. The Grid was filed with the Planning Board on November 3, 2003, and approved by JoAnne Miller Buntich, the Director of Planning and Development for the Town of Sandwich, who was both staff and advisor to the Planning Board. Lot 9 on the Grid, containing 2,400 square feet, is labeled “not buildable.” Lot 10 on the Grid, containing 55, 000 square feet, lies partially in the R-1 zoning district and partially in the R-2 zoning district. The Grid included a scale and a scale bar.

4. The Joneses created an Approval Not Required Plan (“ANR Plan”) of Locus dated August 19, 2004, prepared by Edwin H. Gless of Existing Grade Incorporated, [Note 3] which divided Locus into two lots: Lot A (the site of an existing house, and hereinafter the “ANR Lot”), consisting of 3.41 acres (148,679 square feet) and approximately 267 feet of frontage on Route 6A, and Lot B consisting of 21.05 acres (the site of the proposed subdivision, hereinafter the “Subdivision Lot”). The ANR Plan was approved by the Planning Board on January 4, 2005. The ANR Lot appears to encompasses Lot 1, a portion of Lot 13, and a portion of the subdivision road that accesses Route 6A, as they are depicted on the Grid.

5. On August 24, 2004, the Joneses filed an Application for Cluster Special Permit and an Application for Approval of Definitive Plan with the Planning Board (the “Applications”). The Applications were based on the Subdivision Lot as shown on the ANR Plan and on a plan titled “Definitive Plan of Land of Rockhill Estates,” Sandwich, MA, dated September 21, 2004, revised through December 7, 2004, prepared by Existing Grade Incorporated (the “Subdivision Plan”), [Note 4] which shows a subdivision of eleven buildable lots.

6. Paul S. Tilton, the Assistant Town Engineer for the Town of Sandwich, reviewed the Subdivision Plan and concluded that it was in compliance with the Town of Sandwich Subdivision Rules and Regulations (the “Rules and Regulations”).

7. The Subdivision Plan received approval from the Sandwich Board of Health.

8. The public hearing on the Applications was opened on September 21, 2004 and closed on December 7, 2004. By decision dated February 1, 2005 (“Planning Board Decision 1”), the Planning Board approved both the Cluster Special Permit and the Subdivision Plan. [Note 5] Planning Board Decision 1 references the filing of the Grid with the Planning Board.

9. Gless prepared a plan titled “Lot Demonstration Plan of Rockhill Estates Sandwich, Massachusetts,” dated August 17, 2005, which shows eleven buildable lots within the Subdivision Lot under a conventional subdivision plan (the “Demonstration Plan”). Each of the eleven lots has an area of at least 60,000 square feet and at least 200 feet of frontage. Lot 8 on the Demonstration Plan is partially in the R-1 zoning district and partially in the R-2 zoning district. The subdivision road off Route 6A traverses through a wetland area. The Demonstration Plan was not reviewed by the Planning Board as a part of Planning Board Decision 1.

10. Planning Board Decision 1 was appealed to the Land Court on March 7, 2005, which by decision dated August 18, 2006 (the “Land Court Decision”), included the following findings:

The Grid is not being submitted for approval as a subdivision; rather it is a demonstration of a subdivision for the determination of the number of lots allowable in a cluster development. The Grid contains sufficient information for the limited purpose of Section 4441 of the Zoning By-law. Therefore, the Grid meets the technical requirements of the Zoning By-law. [Note 6]

. . . .

Lot 10 is a buildable lot in the R-1 zoning district on the Grid and, under Section 4441(b) of the Zoning By-law, Lot 10 can be calculated as a lot for the Subdivision Plan.

. . . .

[T]he Grid does not depict the proper calculation [for the number of subdivision lots] under Section 4441 of the Zoning By-law [because it incorporates the ANR Lot into the Subdivision Lot].

. . . .

The Demonstration Plan, in its present form, does not depict a conventional subdivision under Section 4441 of the Zoning By-law for purposes of calculating the number of allowable lots in a cluster development [because the subdivision road crosses a wetlands].

Although I find that the Joneses have not presented sufficient evidence entitling them to the number of lots shown on the Grid or the Demonstration Plan, I am not convinced that a conventional subdivision of the Subdivision Lot (or Locus) could not yield eleven buildable lots for a cluster development, or that the Decision was beyond the scope of the Planning Board’s authority.

See Brewton v. Spiegel, 14 LCR 468 (2006) (Misc. Case No. 307230) (Sands, J.). Planning Board Decision 1 was remanded to the Planning Board for further public hearings consistent with the Land Court Decision.

11. Gless prepared an amendment to the Demonstration Plan (the “Amended Demonstration Plan”) dated October 2, 2006, which detailed the portion of the subdivision road which crossed the wetlands on the Subdivision Plan. The area of crossing was delineated as 1,504 square feet. The Amended Demonstration Plan was filed with the Planning Board on October 3, 2006.

12. The Sandwich Conservation Commission provided an advisory opinion to the Planning Board, dated January 17, 2007 (the “Advisory Opinion”), relative to the status of the wetlands crossing by the subdivision road. The Advisory Opinion states:

The Commission has reviewed its By-laws and Regulations implemented pursuant thereto and offers the following advisory opinion with the proviso that the Commission states in no uncertain terms that the following opinion is not an evaluation of the merits of the project and more specifically of the applicant’s ability to carry their burden under the Town of Sandwich Wetlands Protection By-law. The By-law gives the Commission wide discretion in deciding whether an Applicant has met this burden. The Commission renders no opinion as to whether this project does in fact overcome this burden, only an opinion as to whether this project could meet that burden. . . .

The Advisory Opinion concludes that “the eleven lots as shown in the demonstration plan, developed in a conventional subdivision, crossing wetlands could be lawfully permitted by the Commission” under the Town of Sandwich Wetlands Protection By-law (the “Wetlands By-law”).

13. By letter decision dated February 23, 2007, and filed with the Town Clerk on March 2, 2007 (“Planning Board Decision 2”), the Planning Board found that:

the grid demonstration plan does show the subdivision road will cause filling of wetlands. However, the amount of wetlands to be filled is less than the amount prohibited under the Sandwich Conservation Bylaws, Chapter 7 of the Town Bylaws, which is 2,500 square feet. In fact, the grid demonstration plan shows only 1,504 square feet of wetlands being filled. Finally, despite the fact that there may be endangered species there, if it is an endangered species habitat, the Conservation Bylaws also allow replication both on and off the property at issue. Accordingly, the Planning Board finds that the grid demonstration plan is in compliance with Chapter 7 of the Town Bylaws; and, the grid conventional subdivision demonstration plan, required under Section 4441 of the Zoning Bylaws, for purposes of calculating the number of allowable lots in a Cluster Special Permit is a valid plan showing 11 lots.

14. The Division of Fisheries & Wildlife sent a letter to the Joneses dated September 10, 2007 (the “NHESP Letter”) stating that

[i]t is the understanding of the NHESP [National Heritage and Endangered Species Program] that final Order of Conditions for the proposed project [11 lot subdivision] was received prior to October 1st, 2006, at which time the project site was not located within Priority Habitat. Therefore, based on the information provided to the NHESP, it appears that the proposed work would meet the requirement of 321 CMR 10.13 and does not require review for compliance with the MA Endangered Species Act. However, if any portion of this project would require another Notice of Intent filing pursuant to the Massachusetts Wetlands Protection Act, if the existing Order of Conditions expires, or if it needs to be amended, the proposed project would need to be reviewed by the NHESP pursuant to the MA Endangered Species Act.

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The sole issue presented for remand to the Planning Board was the number of subdivision lots that can be created using a cluster design. [Note 7] This determination requires a review of Section 4441(a) of the Zoning By-law, which is the heart of the matter at bar and provides:

Number of Dwelling Units. The maximum number of dwelling units allowed in a Cluster Development shall be calculated as follows:

a.) Equal the number of units that could be constructed with a conventional grid subdivision that complies with the zoning in the district and the subdivision Rules and Regulations of the Planning Board, and any other applicable laws or regulations of the Town and Commonwealth. A preliminary layout of a conventional grid subdivision meeting the above requirements shall be submitted to demonstrate the allowable number of units.

Defendants argue that the Demonstration Plan and the Amended Demonstration Plan fully comply with Section 4441 of the Zoning By-law and the Wetlands By-law and also point out that Section 4441 is only a tool for the planning process to show the number of lots allowable in the subdivision and does not require a formal plan (particularly where the plan will never be built). [Note 8] Defendants also contend that the Planning Board is entitled to reasonable deference in the interpretation of its own zoning bylaws. See Titcomb v. Bd. of Appeals of Sandwich, 64 Mass. App. Ct. 725 , 730-31 (2005). Plaintiffs argue that there are disputed issues of material facts relative to whether the subdivision complies with the Wetlands By-law and the laws and regulations of the Massachusetts Natural Heritage and Endangered Species Program. [Note 9]

The parties do not dispute that the Subdivision Plan complies with the Rules and Regulations. The central issue in this case, for meeting the requirements of Section 4441 of the Zoning By-law, is whether the Demonstration Plan complies with the Wetlands By-law, in particular Section 7.40, dealing with wetlands replication. Section 7.40, Part 2, states that the “[f]illing of wetlands is therefore prohibited except when mitigated by wetlands replication as permitted in this section. At its discretion, the Conservation Commission may permit activities involving wetlands replications that do not harm the wetlands values protected under this bylaw.” [Note 10] Both parties agree that the Demonstration Plan shows the subdivision road crossing a wetlands and, thus, replication is required under the Wetlands By-law. Plaintiffs note the three requirements for successful wetlands replication, as set forth in the Wetlands By-law, and argue that the Joneses do not meet any of these requirements. [Note 11] Conversely, Defendants argue that the Joneses meet all three requirements for wetlands replication.

The first sentence of Section 7.40, Part 2, of the Wetlands By-law, presents the initial requirement for wetlands replication. It states that “[w]etlands replication, in order to make lands buildable, by fulfilling septic system setbacks, flood elevation requirements or other construction setbacks, or to achieve lot area requirements, is prohibited.” Plaintiffs argue that the subdivision road is required for lot frontage, which is a “lot area requirement.” The Advisory Opinion states that the subdivision could satisfy the literal requirements of this language, as the wetlands filling is required for the portion of the subdivision road which crosses the wetland and provides access, and not for any prohibited purpose listed in the first sentence of Part 2 (i.e. not for any lot setbacks or lot area requirements). The Conservation Commission found this requirement not to be a problem, and it is entitled to great discretion. [Note 12] See Rodgers v. Conservation Comm’n of Barnstable, 67 Mass. App. Ct. 200 , 208, further appellate review granted, 447 Mass. 1111 (2006) (appeal dismissed per stipulation) (“in the case of administrative agency adjudication, we give substantial deference to the agency’s findings of fact and interpretation of its regulations”).

The second requirement for wetlands replication is found in the second sentence of Section 7.40, Part 2, which states that “[r]eplication is prohibited in areas providing habitat for existing or endangered species as listed by the Massachusetts Natural Heritage Program.” [Note 13] Plaintiffs argue that Locus is the location of an endangered species, the Eastern Box Turtle. The NHESP Letter states that the subdivision “does not require review for compliance with the M[assachusetts] Endangered Species Act” because the Applications were filed before October 1, 2006, at which time Locus was not located within an endangered species habitat. [Note 14] Even if the NHESP Letter is incorrect, however, the Conservation Commission indicates that the second sentence of Part 2 of Section 7.40 only prohibits replication on the portion of the site which is in the endangered species area and does not prohibit replication in another area of Locus or off-site. As a result, the Conservation Commission “is of the opinion that the project could satisfy the literal requirements of the second sentence of Part 2.” Again, the Conservation Commission is given considerable discretion in making these determinations. Contrary to the arguments of Plaintiffs, the Planning Board also feels that off-site replication is possible, and this court agrees.

The third requirement regarding wetlands replication is found in the first two sentences of Section 7.40, Part 3, which states that, “[r]eplication may be permitted in projects that provide access to otherwise buildable uplands, where no other upland access is possible. Replication may also be permitted when an overriding public purpose can be demonstrated.” Plaintiffs argue that there is secondary access to the subdivision from Chipman Road which does not require a wetlands crossing, and therefore the access from Route 6A that requires the wetlands crossing is prohibited. However, the Conservation Commission does not interpret the first sentence of Part 3 as applicable to the subdivision, and such inference is reasonable given the dead-end street requirements of the Rules and Regulations. [Note 15] Finally, while the Conservation Commission “does not believe that the first sentence of Part 3 is applicable to this project, the applicant could provide sufficient information for the Commission to make a determination that an overriding public purpose has been demonstrated.” [Note 16]

For all of the foregoing reasons, I find that the Demonstration Plan meets the requirements of Section 7.40 of the Wetlands By-law and Section 4441 of the Zoning By-law. As a result, I find that Section 4441 will allow eleven buildable lots in the subdivision and, thus, I find the Cluster Special Permit valid.

In the Land Court Decision, I also remanded the Subdivision Plan to the Planning Board for review consistent with the terms of the Land Court Decision. As discussed in the Land Court Decision, the Subdivision Plan was intertwined with the Cluster Special Permit. Plaintiffs challenged the Subdivision Plan based on the deficiencies of the Cluster Special Permit. Since I have found the Cluster Special Permit valid, I also find the Subdivision Plan valid, and that the Planning Board did not exceed the scope of their authority.

Defendants’ Motion for Summary Judgment is ALLOWED.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: March 13, 2009