MISC 01-270908

March 27, 2009

ESSEX, ss.

Scheier, C.J.


In this action, brought pursuant to G. L. c. 41, § 81BB, Plaintiff challenges the Rockport Planning Board’s (Board) denial of a definitive subdivision plan submitted by Plaintiff in August 2000. Plaintiff seeks a determination that the Board’s denial was arbitrary and capricious and asks this court to annul the Board’s decision. The case is before the court pursuant to Plaintiff’s Motion for Summary Judgment, which was argued January 27, 2009. While some facts are in dispute on the record, this court finds that the material facts are not in dispute.

Plaintiff owns property located off the southerly side of Jerden’s Lane in Rockport consisting of approximately 7.97 acres (Property). In January 2000, Plaintiff filed a preliminary plan to subdivide the Property into a 13-lot subdivision with frontage on Pine Lane. The subdivision provided that Pine Lane would be a cul-de-sac less than five hundred feet (500’) in length. Pine Lane was to be located off Jerden’s Lane Extension [Note 1] (hereinafter referred to as Jerden’s Lane Extension). Jerden’s Lane Extension, from its intersection with Summer Street to its terminus is well in excess of five hundred feet (500’). There are several single family houses built pursuant to building permits issued by the Town of Rockport, which front on the portion of Jerden’s Lane Extension between the proposed Pine Land and the terminus of Jerden’s Lane Extension. Rockport High School is located at 24 Jerden’s Lane. Attached to this decision is a Sketch of the Property and surrounding area and the streets mentioned herein.

On March 8, 2000, after a duly-noticed public hearing, the Board voted to deny Plaintiff’s application because the length of Jerden’s Lane Extension exceeded the 500-foot maximum for dead-end streets. On July 31, 2000, Plaintiff filed a definitive subdivision plan (Plan). The Plan proposed to divide the Property into 13 lots using the proposed Pine Lane as frontage. The Plan was revised on January 10, 2001, and February 21, 2001. Beginning on October 20, 2000, continuing on January 18, 2001, and concluding on March 13, 2001, the Board held a duly-noticed public hearing on Plaintiff’s Plan. During its review, the Board retained Scott Patrowicz, an engineer, to review the Plan for compliance with the Rockport Subdivision Rules and Regulations (Subdivision Regulations). In a report to the Board dated October 20, 2000, Mr. Patrowicz stated that, among other concerns, the Plan included a dead-end street, Jerden’s Lane Extension, which would be in excess of 500 feet. Based on his review, Mr. Patrowicz did not recommend that the Board approve the Plan. [Note 2]

On January 18, 2001, and March 1, 2001, Plaintiff submitted revised subdivision plans that showed minor alterations. Neither revision changed the layout of any roadway, nor did either revision address Mr. Patrowicz’s concern regarding the dead-end street in excess of 500 feet. On February 20, 2001, Plaintiff submitted an alternative plan pursuant to General Laws Chapter 40B entitled “Comprehensive Permit (40B) Conceptual Alternative Development Plan” (40B Plan). On March 13, 2001, the Board closed the public hearing on Plaintiff’s application and voted to disapprove the Plan. The Board’s disapproval was based, in part, on the fact that Jerden’s Lane Extension would be a dead-end street in excess of 500 feet in violation of Section 4.1.5(a) of the Subdivision Regulations, which provides “Dead-end streets, whether temporary or permanent, shall not be longer than five hundred (500) feet.” [Note 3]

The Subdivision Regulations do not define the term “dead-end street.” Jerden’s Lane Extension is open at one end, at its intersection with Summer Street, a public way, and leads into Beech Grove Cemetery without connecting to another public way. Pursuant to Chapter 3 of the Town of Rockport, Cemetery Division: Rules and Regulations, Section 3.22, “All cemeteries shall be closed to the public from sunset to sunrise each day.” The roads inside cemetery grounds are private ways and are not considered public roads. The Board’s denial of Plaintiff’s Plan is consistent with the treatment of past plans seeking to develop the Property. In 1986 the Board voted to disapprove a definitive subdivision plan seeking to develop the Property because it would create a dead-end street (Jerden’s Lane Extension) in excess of five hundred feet. In both 1986 and in the instant case, the applicants could have applied to the Board for a waiver from Section 4.1.5(a) of the Subdivision Regulations. However, in both cases, the applicants chose not to seek such a waiver.

Plaintiff filed a motion for summary judgment, later amended, on June 13, 2008, which the Board opposed through a written opposition filed on January 14, 2009. The Board also filed a written request for entry of judgment pursuant to Mass. R. Civ. P. 56 (c). A hearing was held on January 27, 2009, at which this court denied Plaintiff’s Motion for Summary Judgment. “Rule 56 (c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (internal quotations omitted). In reviewing a motion for summary judgment, the court shall not assess “the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970) (quoting Gordon v. American Tankers Corp., 286 Mass. 349 , 353 (1934). A motion for summary judgment will not be granted “merely because the facts [the movant] offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial.” Bailey, 386 Mass. at 371 (quoting Hayden v. First Nat'l Bank, 595 F.2d 994, 997 (5th Cir. 1979)).

In considering the materials in support of any 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.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). “Also, all doubt as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment.” Bailey, 386 Mass. at 371. The moving party bears the burden of affirmatively showing that there is no triable issue of fact, even if that party would not have such a burden if the case were to go to trial. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 644 (2002). “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case. A complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial.” Kourouvacilis v. GM Corp., 410 Mass. 706 , 711 (1991). “[A]lthough that supporting material need not negate, that is, disprove, an essential element of the claim of the party on whom the burden of proof at trial will rest, it must demonstrate that proof of that element at trial is unlikely to be forthcoming.” Id. at 714. Under Mass. R. Civ. P. 56(c), “[s]ummary judgment, when appropriate, may be rendered against the moving party.”

In reviewing an appeal brought pursuant to G. L. c. 41, § 81BB, the court must determine whether the planning board’s decision exceeded its authority and must “confin[e] its review to the reasons stated by the planning board for its disapproval of the subdivision plan. . . .” Fairbairn, 5 Mass. App. Ct. at 173 (citing Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306 , 307 (1976). The plaintiff bears the burden of showing that the planning board exceeded its authority. Mac-Rich Realty Constr. Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 83 (1976). If any reason given by the board for disapproval was proper, the court must affirm the board’s decision. Id. at 81. It is through this lens that this court must consider Plaintiff’s Motion for Summary Judgment and the Board’s request that summary judgment issue in its favor.

In the instant case, the Board failed to approve the Plan due, in part, to its finding that “Jerden’s Lane (which turns into Jerden’s Lane Extension), from the point it intersects with Summer Street is a single, continuous stretch of road open at one end and closed at the other.” Section 4.1.5(a) of the Subdivision Regulations prohibits dead-end streets in excess of 500 feet. While the Board did not specifically so state, it is clear from its decision that the Board added the length of Jerden’s Lane Extension to the length of Pine Lane to determine that the Plan did not comply with Section 4.1.5(a), and needed a waiver. [Note 4] Plaintiff argues that the addition of the linear footage of Jerden’s Lane Extension was improper and maintains that Pine Lane should have been measured independently from Jerden’s Lane Extension. How the court analyzes this case is dependent upon whether this court finds reasonable the Board’s determination that Jerden’s Lane Extension is a dead-end street.

While the Subdivision Regulations do not define the term “dead-end street” it is well-settled that the term “obviously includes a single, continuous stretch of road open at one end and closed at the other. . . .” Sparks v. Planning Board of Westborough, 2 Mass. App. Ct. 745 , 748 (1974) (citing LaCroix v. Commonwealth, 348 Mass. 652 , 653-54 (1965); Tassinari v. Massachusetts Turnpike Authority, 347 Mass. 222 , 223-24 (1964); Francesconi v. Planning Bd. of Wakefield, 345 Mass. 390 (1963)). “Dead-end street regulations are enacted because of a concern that the blocking of a dead-end street, as by a fallen tree or an automobile accident, will prevent access to the homes beyond the blockage particularly by fire engines, ambulances, and other emergency equipment . . . .” Federline v. Planning Bd. of Beverly, 33 Mass. App. Ct. 65 , 68 n. 5 (1992) (citing Wheatley v. Planning Bd. of Hingham, 7 Mass. App. Ct. 435 , 451 (1979)). Due to this safety concern, courts have held that “it would make no sense to measure the length of a dead-end way other than from the nearest connecting through street.” Nahigian v. Lexington, 32 Mass. App. Ct. 517 , 521 n. 3 (1992) (emphasis added).

Plaintiff maintains that Jerden’s Lane Extension is a through street that connects to Prospect Street and is not closed at either end. Because Plaintiff contends Jerden’s Lane Extension is a through street, he argues that the proper place to begin measuring Pine Lane is from its intersection with Jerden’s Lane Extension, from where Pine Lane measures 489 feet. The Town asserts, however, that Jerden’s Lane Extension ends at the Beech Grove Cemetery, where it becomes a private cemetery way not open to the public between sunset and sunrise. None of the plans or maps submitted with the summary judgment materials show Jerden’s Lane Extension connecting with Prospect Street, or any other street. Instead, each depicts Jerden’s Lane Extension ending at the Beech Grove Cemetery property. Although Plaintiff submitted an affidavit stating that he can drive from Jerden’s Lane Extension and connect to Prospect Street, that affidavit, even if fully credited, does not change the result.

Plaintiff’s affidavit does not contain any details about when he has driven Jerden’s Lane Extension to Prospect Street or how the streets connect. Given this lack of detail, and the maps and plans which are part of the record, it is possible that Plaintiff has driven the route he described during the day while the cemetery was open to the public and has connected from Jerden’s Lane Extension to Prospect Street by traveling through the cemetery property. The Board, as the non-moving party, receives the benefit of all inferences, therefore this court concludes that Jerden’s Lane Extension ends at Beech Grove Cemetery. The Board was within its reasonable authority in finding that Jerden’s Lane Extension is an impermissible dead-end street: “a single, continuous stretch of road open at one end and closed at the other. . . .” Sparks v. Planning Board of Westborough, 2 Mass. App. Ct. 745 , 748 (1974).

Plaintiff relies on Sparks for the proposition that it is improper to combine two streets to constitute a dead-end street in excess of the maximum allowable length. Plaintiff’s reliance on Sparks is misplaced. In Sparks, the Appeals Court rejected the argument that two dead-end subdivision ways which formed a “T” should be combined to create a dead-end way in excess of the maximum allowable length. However, in Sparks the two subdivision ways at issue were connected to a through public street. That is not the case here. The facts here presented are comparable to, and controlled by the Court’s ruling in Federline. “Here, [Jerden’s Lane Extension], the adjacent . . . way, is itself a dead-end street and would have served as the source of the proposed street[], also [a] dead-end street[]. Therefore, the length of [Jerden’s Lane Extension] had a marked effect on the proposed subdivision, at least in regard to the safety of the residents. Accordingly, when measuring the length of the proposed dead-end streets, the board could properly take into consideration the length of [Jerden’s Lane Extension].” Federline v. Planning Bd. of Beverly, 33 Mass. App. Ct. 65 , 69 (1992) (citing Nahigian v. Lexington, 32 Mass. App. Ct. 517 , 521-22 (1992)).

Because this court has found that Jerden’s Lane Extension is not a through street, it is proper to calculate the length of Pine Lane by adding the length of Jerden’s Lane Extension. Given the safety concerns behind the adoption of dead-end street regulations and the fact that safety concerns are particularly relevant here, where the high school is located along the street that leads to the road Plaintiff seeks to extend, this court concludes that the Board’s interpretation and application of Section 4.1.5(a) was reasonable. Therefore, this court concludes that the Board acted within its authority in disapproving Plaintiff’s Plan. Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: March 27, 2009


[Note 1] It appears from the summary judgment record that Jerden’s Lane is comprised of two parts: Jerden’s Lane and Jerden’s Lane Extension, which begins at the intersection of Summer Street and Jerden’s Lane. Plaintiff’s proposed extension of Jerden’s Lane Extension is currently an existing gravel roadway that Plaintiff seeks to improve.

[Note 2] Specifically, Mr. Patrowicz recommended “that the applicant request the necessary waiver to [Subdivision Regulations] section 4.1.5(a) for the length of the dead-end street (measuring it from Summer Street.” He also noted that the Plan did not reflect due regard for the protection of natural water resources, flood control, and wetlands areas, or for protection, promotion, and enhancement of the beauty of the town; the Plan did not provide adequately for drainage; the Plan proposed to partially fill a bog to create a roadway; and the Plan’s design would require significant blasting of rock outcroppings. His report classified the isolated wetlands on the Property as a “bog” and indicated that it would be subject to the Town’s Zoning Bylaw regarding wetlands.

[Note 3] The Board also based its decision to disapprove the Plan on two additional factors: (1) that the Plan violated Section VII.D and VII.E of the Rockport Zoning Bylaw, which provide for a minimum setback from wetlands, and (2) that the Plan did not provide adequate access in violation of Section 2.4 of the Subdivision Regulations. Plaintiff maintains that the isolated wetlands on the property constitute a “fen,” rather than a bog, and, as such, is not covered by the Zoning Bylaw’s regulation of wetlands. The Town contends that the wetlands area on the Property is properly classified as a “bog” and is explicitly covered by the Bylaw. The Town further asserts that even if Plaintiff is correct in calling the wetlands area a “fen,” the Bylaw still applies. The Town bases this assertion on its argument that although the term “fen” is not explicitly used in the Bylaw, Plaintiff does not contest that there is a wetlands area on the Property and because the Bylaw is meant to encompass all wetlands, the Bylaw is clearly applicable. For the reasons set forth herein, this court need not determine whether these additional reasons for the Board’s disapproval were valid.

[Note 4] Hereafter, where this decision refers to “Jerden’s Lane Extension” as an impermissible dead-end street under Section 4.1.5(a), it incorporates the addition of Pine Lane to Jerden’s Lane Extension, consistent with Federline v. Planning Bd. of Beverly, 33 Mass. App. Ct. 65 (1992).