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 At a case management conference on May 8, 2007, Defendants Motion to Dismiss was withdrawn and the two cases were consolidated (Misc.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. Defendants filed their Reply on December 10, 2007. This court held a hearing on the summary judgment motion on December 19, 2007. A Decision of todays date has been issued. In accordance with that Decision it is:
ORDERED and ADJUDGED that the 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 meets the requirements of Section 7.40 of the Wetlands By-law and Section 4441 of the Zoning By-law.
ORDERED and ADJUDGED that Section 4441 will allow eleven buildable lots in the subdivision and, thus, the Cluster Special Permit is valid.
ORDERED and ADJUDGED that since this court has found the Cluster Special Permit valid, the Subdivision Plan is also valid, and that the Planning Board did not exceed the scope of their authority.
ORDERED and ADJUDGED that Defendants Motion for Summary Judgment is ALLOWED.
By the court. (Sands, J.)
Deborah J. Patterson
Dated: March 13, 2009
[Note 1] Plaintiffs filed their Amended Complaint on March 22, 2007.