JUDITH A. CZYOSKI and ANDREW CZYOSKI, as Trustee of the A & B Nominee Realty Trust v. WILLIAM WORTHINGTON, KAREN SNOW, ROBERT WEINSTEIN, DEBORAH PAINE, ANSEL CHAPLIN, and WILLIAM GOLDEN, as members of the Town of Truro Planning Board

Plaintiffs, Judith A. Czyoski, individually and Andrew Czyoski, as trustee of the A & B Realty Trust, commenced this action on July 9, 2007, as an appeal, pursuant to G.L. c. 41, § 81BB, from a decision of the defendant, the Planning Board of the Town of Truro. The Planning Board’s decision rescinded its previous constructive approval of a definitive subdivision plan concerning a parcel of real property known as 4-J Bay View Road in Truro, owned of record by Judith A. Czyoski, and a parcel of real property known as 4-I Bay View Road in Truro, owned of record by Andrew Czyoski, as trustee of the A & B Nominee Realty Trust.

On March 31, 2008, Nickerson Realty Corp. filed a motion to intervene. Defendant opposed the motion on April 4, 2008. The motion was argued before the Court on May 6, 2008, and taken under advisement. The Court (Trombly, J.) issued an Order on May 9, 2008, allowing the motion to intervene.

On March 24, 2008, defendant filed a motion for summary judgment. Plaintiffs opposed the motion on June 16, 2008, and filed a cross-motion for summary judgment. On July 17, 2008, defendant filed an opposition to the plaintiffs’ motion. On August 25, 2008, intervener plaintiff, Nickerson Realty Corp. filed a motion for summary judgment. Defendant opposed the intervener plaintiff’s motion on September 12, 2008. The motions were argued on September 25, 2008, and are the matters presently before the Court.

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

1. Plaintiff, Judith A. Czyoski owns land known as 4-J Bay View Road in Truro. Plaintiff, Andrew Czyoski, as trustee of the A & B Nominee Realty Trust, owns land known as 4-I Bay View Road in Truro. (“Czyoski Property”).

2. The Czyoski Property abuts property to the South, which includes a private road known as Sawyer Grove Road. A Decision Sketch is attached.

3. On January 4, 1990, the Planning Board of the Town of Truro issued a Certificate of Approval of a definitive subdivision plan concerning the property abutting the Czyoski Property to the South and approved the definitive plan on February 7, 1990. The subdivision plan, the board’s approval, and the certificate of approval all contain reference to a covenant to be recorded with the plan. In 1990, 1991, 1993, 1995, and 1996, Helen M. Sawyer executed covenants and the Planning Board executed corresponding attachments to the covenants, which were recorded. These documents state that Sawyer Grove Road is approved to provide access for the 17 lots of the subdivision, but not for construction of any ways to adjoining land.

4. On October 31, 1998, Ms. Sawyer conveyed to intervener plaintiff, Nickerson Realty Corporation, title to Sawyer Grove Road.

5. On June 30, 2005, plaintiffs filed a definitive subdivision plan concerning the Czyoski Property for approval with the Truro Planning board.

6. On February 21, 2006, the Planning Board voted to deny approval of the definitive plan.

7. Plaintiff appealed the denial to the Barnstable Superior Court. The Superior Court issued a Decision on March 7, 2007, allowing the plaintiffs’ motion for summary judgment, ruling that the definitive plan was constructively approved.

8. On May 22, 2007, the Planning Board held a hearing on whether to amend, modify, or rescind the approval of the definitive plan.

9. On June 12, 2007, the members of the Planning Board along with plaintiffs took a view of the Czyoski property from Pilgrim Pond. Two men raised a flag at thirty and thirty five feet as they walked the border of the wetland as defined by the Conservation Commission.

10. On June 12, 2007, after a public hearing, the Planning Board voted to rescind its constructive approval of the definitive plan. This appeal followed.

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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 viewing the record before it, the Court reviews “the evidence in the light most favorable to the nonmoving party….” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

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. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing 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.” Anderson, 477 U.S. at 248 (cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006)); Molly A. v. Comm’r of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). 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 1] 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).

I. DOCTRINE OF RES JUDICATA

As a threshold matter, defendant argues that plaintiffs are precluded from bringing this action by the doctrine of res judicata. This doctrine comprises both claim preclusion and issue preclusion, also known as collateral estoppel. Heacock v. Heacock, 402 Mass. 21 , 23 n. 2 (1988). “Claim preclusion ‘makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been litigated in the action.” Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 457 (2006) (quoting Jarosz v. Palmer, 436 Mass. 526 , 530-31 n.3 (2002)). The elements required are: “(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.” Id.

Issue preclusion prevents re-litigation of an issue determined in an earlier action, where the same issue arises in the next action. For there to be issue preclusion, “a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication.” Id. In addition, “the issue decided in the prior adjudication must have been essential to the earlier judgment[, and i]ssue preclusion can be used only to prevent litigation of issues actually litigated in the prior action.” Id.

Plaintiffs appealed from the Planning Board’s attempted denial of their definitive subdivision plan to the Superior Court in Czyoski v. The Members of the Planning Bd. of the Town of Truro, Barnstable Superior Court, Civil Action No. 06-00147(March 7, 2007)(Connon, J.). In that case, the Czyoski’s sought a ruling that the definitive plan was constructively approved. The Superior Court issued a Decision on March 7, 2007, allowing the plaintiffs’ motion for summary judgment in that action, ruling that the definitive plan was, in fact, constructively approved. The Superior Court did not determine the issue of whether the substance of the Planning Board’s attempted denial of the definitive plan was proper, because the Court did not reach that issue. Instead, the Court ruled that the prior to the board’s attempted denial, the definitive plan had become constructively approved by the board, and therefore, the denial had no affect.

Moreover, even if the Superior Court had reached the issue of the denial, the instant action involves the Planning Board’s subsequent decision to rescind the approval of the definitive plan. The rescission was a separate and distinct procedure undertaken by the Planning Board, involving different hearings, evidence, and arguments than the attempted denial. Plaintiffs properly appealed to enforce the constructive approval and cannot now be barred from appealing subsequent action to rescind that approval simply because defendant relied on the same evidence in both its attempt to deny and its rescission of the definitive plan. Accordingly, I rule that the plaintiffs’ claim is not precluded.

Defendant alternatively argues that the plaintiffs’ complaint should be dismissed, pursuant to Mass. R. Civ. P. 12(b)(9), because the Superior Court did not decide the issue of the validity of the board’s attempted denial. Defendant suggests that where a Court does not decide an issue, such issue must still be pending in the Court, even where the Court has disposed of the case on other grounds and has issued a final judgment. This is not procedurally correct and Rule 12(b)(9) does not apply here.

II. DISCUSSION

General Laws, chapter 41, § 81BB provides, “[t]he court shall hear all pertinent evidence and determine the facts, and upon the facts so determined, shall annul such decision if found to exceed the authority of such board, or make such other decree as justice and equity may require.” 41, § 81BB. The Court reviews an appeal from a decision of a municipal authority de novo. Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972); Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 32 (1990); see id. However, this review is somewhat circumscribed by the simultaneous obligation to pay deference to the decision of the municipal board in the interpretation of its bylaw. See S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The Court may overturn the board's decision only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); see G. L. c. 40A, § 17; ACW Realty Mgmt., Inc. v, Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Parrish v. Bd. of Appeal of Sharon, 351 Mass. 561 (1967). However, where the Court’s finding of facts supports any rational basis to support the municipal decision, the decision must stand. Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 (1969); Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 75 (2003); Subaru of New England, Inc. v. Bd. of Appeals of Canton, 8 Mass. App. Ct. 483 , 487 (1979). If reasonable minds may differ, “the conclusion reached by the planning board should be sustained.” Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 809 (1981).

In the instant case, the Planning Board states four grounds on which it based its decision to rescind its constructive approval of the definitive plan. The first ground is: “The unavailability of Sawyer Grove Road as access….” At the June 12, 2007 public hearing, town counsel argued that the restrictive covenants concerning Sawyer Grove Road are evidence that the road was not approved for use by any future subdivision. In other words, the road was approved for use by the Nickerson subdivision only and, therefore, Sawyer Grove Road may not be used by the Czyoski subdivision without approval pursuant to § II.D.(d) of the Subdivision Regulations. As town counsel advised the board at that hearing, it had the option of approving Sawyer Grove Road for access to the Czyoski subdivision before determining the adequacy of the remainder of the plan. However, the board opted not to approve the road and, instead, admitted the record of the 2006 public hearings on the definitive plan, regarding the safety of the road as evidence that the road is inadequate. Therefore, it appears to this Court that the unavailability of Sawyer Grove Road stems from the Planning Board’s contention that the road is inadequate for safety reasons—the second ground on which the board based its decision to rescind—and, so, these two grounds must be considered together. [Note 2]

The only evidence before the Planning Board regarding the alleged safety problems of Sawyer Grove Road were the alleged safety problems disclosed to the board in the records of the public hearings held in 2006 on the subdivision plan, which the board ultimately allowed to be constructively approved and attempted to deny on February 21, 2006. Section IV.(f)1. of the Truro Subdivision Regulations requires that “[a]t least one street in the new subdivision will connect with a road which will provide access to the new subdivision, and said road shall in the opinion of the Board be adequate to reduce the danger to persons and property and to secure safety in the case of emergency.” § IV.(f)1. Section IV.(f)2 authorizes the board to “disapprove a plan if it determines the access road to the subdivision is inadequate.” § IV.(f)2.

In the instant case, the only evidence before the Planning Board concerning the alleged safety problems of Sawyer Grove Road was reference to the evidence presented to the board at the public hearings preceding the board’s decision attempting to deny the definitive plan. The records of these 2006 public hearings are not before this Court. [Note 3] Conversely, plaintiff, at the 2007 public hearings, submitted to the board a Traffic Impact Study, a letter dated May 16, 2007 from the Cape Cod Commission, a memorandum from the Chief of the Truro Fire Rescue, and a letter dated May 16, 2007 from the Chief of Police of Truro all in support of the alleged safety of the road.

The Traffic Impact Study reports that the Truro Police Department and MassHighway have no accidents on Sawyer Grove Road on record for the most recent three years available at the time the study was conducted in 2005. The study also concludes that the stopping sight distances (the distance at which an approaching motorist will perceive and react accordingly to traffic in the intersection) for the intersection of Sawyer Grove Road and the proposed site drive is adequate. Lastly, the study reports that currently Sawyer Grove Road carries eleven vehicle trips during the a.m. peak hours and seven during the p.m. peak hours. The study projects that by the year 2010, these numbers will be twelve during the a.m. and seven during the p.m. The proposed development is expected to generate an additional eleven (11) vehicle trips during the a.m. peak hours and fifteen (15) vehicle trips during the p.m. peak hours.

Moreover, there is nothing in the record to indicate that any department of the town objected to the use of Sawyer Grove Road to access the proposed subdivision. Instead, the Cape Cod Commission, the fire department, and the police department wrote in support of the safety of the road. Accordingly, I rule that the Planning Board acted arbitrarily in rescinding the approval of the definitive plan on the ground of inherent safety problems of Sawyer Grove Road.

The third ground for the Planning Board’s decision is: “The failure to adequately protect some of the views of the Czyoski property from Pilgrim Pond, as recommended generally in the Truro Comprehensive Plan….” The defendant submits the Truro Local Comprehensive Plan which contains town policy concerning the protection of vistas. The proposed subdivision encompasses a hill and wetlands to the North, which abut Pilgrim Pond. While these natural features may fall under protective provisions of the Comprehensive Plan, these provisions are merely local policy intended to guide municipal authority and not legal authority of the Planning Board to deny a definitive plan.

Defendant further argues that the Subdivision Regulations allow the board to consider the protection of natural features, including scenic views, when considering a definitive plan. Section IV(q) of the Subdivision Regulations states that “[d]ue regard shall be shown for all natural features such as large tress, water courses, scenic points, historic points and similar community assets which, if preserved, will add attractiveness and value to the subdivision.” § IV(q). Far from authorizing the board to deny a definitive plan for obstructing a scenic view, this provision authorizes the board only to impose conditions and terms necessary to reform a definitive plan to preserve as much of these community assets as possible.

Even if the board had such authority under the regulations, there is no evidence in the record to show that the subdivision would have a substantial impact on the natural features of the area. On June 12, 2007, the members of the Planning Board, along with plaintiffs, took a view of the Czyoski property from Pilgrim Pond. Two men raised a flag at thirty and thirty five feet as they walked the border of the wetland as defined by the Conservation Commission. At the public hearing held later that day, plaintiffs argued that from that perspective, the observers could only infrequently see the flag when raised to thirty five feet and could only see the flag raised to thirty feet when located in the swale lying on Lot 9 of the proposed subdivision—an area that plaintiffs have expressed a willingness to maintain as undeveloped, conservation land, a limitation broader than what is required. Defendant did not then, and does not now, dispute this evidence and no evidence of further impact on the view is before the Court. Accordingly, I rule that the definitive plan is not properly rescinded for failing to protect views.

The fourth ground for the Planning Board’s decision is: “The fact that the Planning Board never intended to approve the plan, and was led to believe by the applicant’s counsel that delay in acting on the plan was acceptable to the applicant.” Although it is true that where a municipal authority has “blunder[ed] its way into a position where [a] plan became constructively approved[,]” it may rescind such approval pursuant to G.L. c. 41, § 81W, this remedial step is available only where the regulations would have authorized the municipal authority to disapprove the plan initially. Pinecrest, Inc. v. Planning Bd. of Billerica, 350 Mass. 336 , 339 (1996); see 41, § 81W. The effect of constructive approval of a plan is the same as that of a plan approved affirmatively by a municipal authority. See G.L. c. 41, § 81U. A board cannot have absolute discretion to rescind a constructive approval simply because the approval was inadvertent; “[a]ll of the provisions of the subdivision control law relating to the submission and approval of a plan of a subdivision shall, so far as apt, be applicable[,]…” and the board may properly rescind only where the definitive plan violates the subdivision regulations. G.L. c. 41, § 81W.

Therefore, in the instant case, the mere fact that the Planning Board, through inadvertence and inaction, allowed the definitive plan to be constructively approved does not have any bearing on the effect of that approval, and the board may remedy such blunder only if the plan is in violation of the subdivision regulations. The board could not have denied the definitive plan initially without authority under the Subdivision Regulations, and it cannot now rescind its approval without similar authority. Accordingly, I rule that the definitive plan is not properly rescinded because the board inadvertently approved the plan.

As discussed previously, all the grounds cited by the board as grounds for the rescission are improper, and based on the record, I find no other violations of the regulations. Therefore, the Planning Board exceeded its authority in its decision to rescind the approval of the definitive plan.

CONCLUSION

For the foregoing reasons, this Court concludes that the Planning Board of the Town of Truro exceeded its authority in its decision to rescind the approval of the plaintiffs’ definitive subdivision plan. The ground that Sawyer Grove Road is unavailable for use as access to the Czyoski subdivision is indistinguishable from the ground that the road is inadequate for safety reasons. The ground that Sawyer Grove Road has inherent safety problems is against the clear weight of the evidence before this Court, and therefore, the board’s action on this basis is arbitrary. In addition, the definitive plan is not properly rescinded on the ground that it fails to protect views. The board’s determination in this regard exceeded its authority under the Town of Truro Subdivision Regulations. The Court also rules that the record does not demonstrate that the definitive plan violates the Subdivision Regulations. Therefore, the board did not have the authority to rescind its approval, regardless of its intentions. Accordingly, the defendant’s motion for summary judgment is hereby DENIED, and the plaintiffs’ cross-motion for summary judgment is ALLOWED. The intervener plaintiff’s motion for summary judgment is ALLOWED IN PART; the Court does not determine the validity or effect of the covenants concerning Sawyer Grove Road. In addition, intervener plaintiff requests costs and attorneys’ fees, but there is no justification for such relief.

Charles W. Trombly, Jr.

Justice

Dated: March 31, 2009