KENNETH CROSBY, TRUSTEE OF CROSBY REALTY TRUST vs. TOWN OF WHITMAN PLANNING BOARD

Plaintiff Kenneth Crosby, Trustee of Crosby Realty Trust, filed his unverified Complaint For Judicial Review Pursuant to G. L. c. 41, § 81BB on March 9, 2004, appealing a decision of Defendant Town of Whitman Planning Board which denied Plaintiff’s definitive plan for a seventeen-lot subdivision (the “Subdivision”). [Note 1] Defendant filed an Answer on April 5, 2004. At a status conference on September 11, 2006, the parties agreed to a remand of the Subdivision denial to Defendant, and a Remand Order was issued by this court on September 13, 2006. [Note 2] After a dispute over engineering fees related to the Revised Remand Order, Plaintiff filed an Affidavit of Robert Murphy, his engineering consultant, on February 22, 2007. At a status conference on May 21, 2007, Attorney Mark Corner filed a Motion to Withdraw as counsel for Plaintiff, which this court allowed.

Defendant filed its Motion for Summary Judgment on August 25, 2008, together with supporting memorandum, Concise Statement of Material Facts, and Appendix. On September 25, 2008, Plaintiff filed his Opposition to Defendant’s Motion for Summary Judgment, together with supporting memorandum. Defendant filed its Reply to the motion on October 2, 2008, together with Supplemental Appendix and Affidavit of Jack P. Lowe (Associate Superintendent of the Department of Public Works for the Town of Whitman). A hearing was held on the summary judgment motion on October 6, 2008, at which Plaintiff did not appear and did not advise this court of his absence, and the matter was taken under advisement. [Note 3]

On November 17, 2008, Plaintiff filed his Reply to Defendant’s Reply, and Defendant filed its Motion to Strike Plaintiff’s Reply on December 11, 2008. 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. 56(c).

The following facts are not in dispute:

1. Plaintiff owns a 17.5 acre parcel of land located on Plymouth Street in Whitman, MA (“Locus”).

2. After filing a preliminary plan with Defendant, [Note 4] on December 10, 2003, Plaintiff filed a definitive subdivision plan titled “‘Ryehill Estates’ A Definitive Subdivision located in Whitman, Massachusetts” dated September 3, 2003 (“Plan 1”). [Note 5] Plan 1 was prepared by Robert Murphy of Danena Engineering Associates (“Danena”) for the Subdivision known as Rye Hill Estates. [Note 6] No waivers were requested for Plan 1. Plan 1 showed a 1,439.6-foot-long subdivision road, Beech Hill Road (the “Subdivision Road”), leading from Plymouth Street (a public street); Plan 1 also showed a secondary access between the Subdivision Road and Plymouth Street over Tillson Street (a private way) in which Plaintiff had no deeded rights at the time of the denial of Plan 1. Defendant hired P.M.P. Associates, LLC (“PMP”) to review Plan 1. By letter dated December 24, 2003, addressed to Defendant and with a copy sent to Danena, PMP recommended that Beech Hill Road be accepted as a collector street, which required a major modification of the Subdivision design.

3. Plan 1 was submitted to the Whitman Board of Health, which failed to make a report of its approval or disapproval within forty-five days of such submission, thus constituting constructive approval by the Board of Health pursuant to G. L. c. 41, § 81U.

4. By letter dated February 17, 2004, PMP recommended denying Plan 1 on grounds that it violated the Town of Whitman Planning Board Rules and Regulations (the “Rules and Regulations”) in a number of respects.

5. On February 17, 2004, after a public hearing, Defendant voted to deny Plan 1, with fourteen conditions for future approval, and a decision was filed with the Whitman Town Clerk on February 19, 2004 (the “Decision”). Condition fourteen stated: “The Planning Board has determined that the following items, based on the referenced Subdivision Regulation Sections, are not in compliance, and therefore are outlined as reasons for the denial of the Definitive Subdivision” and cited violations of forty-five sections of the Rules and Regulations. Included in these violations was the width of Beech Hill Road as a collector street and the length of the dead-end portion of the roadway, which exceeded 800 feet. Specifically, the Decision stated:

The dead-end portion of the roadway length exceeds the 800 ft. limit. The cul-de-sac should be designed as a temporary cul-de-sac with associated easements and a roadway layout design through the cul-de-sac, which extends to the Rockland Town Line. The back end of the temporary cul-de-sac layout should be set no greater than 800 ft. beyond the centerline intersection at Tillson St.

However, until documentation is confirmed that the Applicant has rights to extend and access Tillson Street, the 800 ft. dead end limits are measured from Plymouth Street. A temporary cul-de-sac would be needed to end at Station 8+00 and the roadway not extended until such rights are property confirmed. [Note 7]

6. On March 9, 2004, Plaintiff filed an appeal of the Decision with the Land Court.

7. Status conferences were held in the Land Court on July 21, 2005, December 15, 2005, February 16, 2006, and July 11, 2006, during which there were discussions relative to the submission of a revised subdivision plan (“Plan 2”). During these status conferences, there were representations by Plaintiff that Plan 2 had been prepared and submitted to Defendant and the parties discussed issues raised relative to engineering and title matters, both of which required waivers under the Rules and Regulations.

8. At a status conference on September 11, 2006, at the request of both parties, this court agreed to remand the matter to Defendant, which it did by Remand Order dated September 13, 2006. Plaintiff filed a Motion for Clarification of the Remand Order, raising issues of whether Plan 2 was a new plan or a revised plan, and at a hearing on October 23, 2006, this court issued a Revised Remand Order, which stated that

this court hereby remands the matter to Defendant for a new public hearing, after proper notice, to determine whether Plan 2 is acceptable and whether any applicable waivers will be issued. . . . Although Plaintiff did not initially agree to withdraw its original plan, this court made it clear that in the interest of judicial economy it would require Plaintiff to choose which plan it chose to litigate. As a result of this revised remand order, Plaintiff agrees that it shall withdraw and not pursue Plan 1 submitted to Defendant on which the original Complaint in this matter was based.

9. Danena prepared Plan 2 for Plaintiff, which contained, in the words of Robert Murphy, as stated in his Affidavit dated February 22, 2007, two substantive changes to Plan 1: (1) the realignment of the intersection of the Subdivision Road and the public road; and (2) the deletion of the second subdivision access, resulting in a dead-end subdivision road in violation of the Rules and Regulations. Plan 2 was never filed with Defendant due to a dispute over filing fees and an intervening sewer moratorium issued by the Town of Whitman Department of Public Works (the “DPW”) in January 2007. [Note 8]

10. At a status conference on May 21, 2007, this court allowed Attorney Mark Corner’s Motion to Withdraw as Counsel for Plaintiff. Plaintiff continued to represent himself as a pro se litigant.

11. At a status conference on September 11, 2007, exactly one year after the issuance of the original Remand Order, Plan 2 had not yet been submitted to Defendant. By Order dated September 11, 2007, this court required Plaintiff to file a report by September 21, 2007, “indicating whether he intends to proceed with litigation on the original plan that is the subject matter of this case, file a revised plan with Defendant, or dismiss this case.” By letter dated and filed with this court on September 20, 2007, Plaintiff stated that “we have decided to pick-up this litigation where we left off, approximately a year ago, and pursue litigation of Plan One.”

12. After a further status conference on November 28, 2007, and additional discussions relative to Plaintiff’s filing of Plan 2, this court, by Order dated November 30, 2007, again stated, “After review of the record, this court ORDERS that Plaintiff shall have until December 17, 2007, to determine whether he wants to litigate Plan 1, file a new plan, or dismiss this case.” By letter dated December 12, 2007, and filed with this court on December 17, 2007, Plaintiff stated, “we have to litigate plan 1.”

13. Plaintiff did not appear at two status conferences scheduled during the discovery stage of this matter, after each of which this court issued a Fifteen Day Nisi Order. [Note 9]

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I must first address Defendant’s Motion to Strike Plaintiff’s Reply. Plaintiff’s Reply was filed more than a month after the summary judgment hearing which Plaintiff failed to attend. Plaintiff never asked for permission from this court to file such a Reply and never provided good cause for the late filing. As a result, I shall ALLOW Defendant’s motion to strike.

Defendant argues that the Decision complied with the Rules and Regulations, while Plaintiff claims that the Decision was arbitrary, capricious, and unreasonable, and beyond the scope of authority of Defendant. Plaintiff also claims that summary judgment is inappropriate as there are material facts at issue.

This court’s duty, in hearing an appeal pursuant to G.L. c. 41, § 81BB, is to “conduct a hearing de novo, find the relevant facts, and determine the validity of the planning board’s decision.” Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104 , 106 (1991). Such review is confined to the reasons cited by the planning board. Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). The burden in appeals from planning board decisions rests upon the objecting party to prove that the board exceeded its authority. See Windsor v. Planning Bd. of Wayland, 26 Mass. App. Ct. 650 , 657 (1988). In general, if the subdivision plan meets the recommendation of the board of health and all reasonable rules and regulations of the planning board, the planning board has no discretion to turn down the plan. Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 84-85 (1976).

In the Decision, Defendant relies upon numerous alleged violations of the Rules and Regulations relative to Plan 1, including the following:

1. Plan 1 did not correctly show many required plan components, such as the traffic island and the intersection of Beech Hill Road with Plymouth Street. See Section 3.2 of the Rules and Regulations.

2. Plan 1 must show collector streets (streets which connect with arterial, or public, streets) to be at least fifty-feet wide. [Note 10] The Subdivision Road is forty-feet wide. See Section 2.0.3.o and Section 4.1.4 of the Rules and Regulations.

3. Plan 1 did not contain a certification that the Subdivision complied with the Town of Rockland subdivision control laws (required because there was a potential secondary access to the Subdivision through the Town of Rockland at the northeast corner of the Subdivision). See Section 4.0.5 and Section 1.2.3 of the Rules and Regulations.

4. Plan 1 shows Beech Hill Road longer than allowed as a dead-end street. See Section 4.1.6 of the Rules and Regulations. In the alternative, the right to use of Tillson Street, a private way, as a secondary access must be documented. See Section 1.2.3 of the Rules and Regulations.

In the eyes of this court, the major issue in the Decision regarded access to the Subdivision. Plan 1 showed the Subdivision Road (1,439.6 feet long) providing access from Plymouth Street, a public street, through the Subdivision to unidentified adjacent land located in Rockland. Additionally, Plan 1 showed a spur from the Subdivision Road to Tillson Street, a private way, which connects to Plymouth Street. As discussed, supra, neither the Rockwood property nor Tillson Street were available for access. Any alternative to this layout involved the use of a subdivision road that is a dead-end street, which would require a waiver. [Note 11]

“It is well settled that a planning board is entitled to require an applicant for subdivision approval to demonstrate ownership of the subdivided land.” Parker v. Black Brook Realty Corp., 61 Mass. App. Ct. 308 , 311 (2004). Such a provision exists in the Rules and Regulations. Because Plaintiff could not provide evidence that it had a right to use either the Rockland property or Tillson Street, and since the length of the Subdivision Road was in excess of that required by the Rules and Regulations governing dead-end streets, Plaintiff did not satisfy the primary requirements for access to the Subdivision; moreover, Plaintiff did not request any waivers from any such conditions.

Plaintiff concedes several of the deficiencies of Plan 1 in both his Complaint and in his discovery answers. In his Complaint, he states that “Plaintiff is ready, willing and able to correct any of the deficiencies in the definitive plan . . . .” However, despite numerous opportunities, Plaintiff failed to do so. In light of the foregoing, I find that Plan 1 failed to comply with the Rules and Regulations, and no waivers were requested in this regard.

Plaintiff’s main argument is that it was discriminated against by Defendant in that it was not given the opportunity to comply with G. L. c. 81, § 41U. [Note 12] That statute states, in part:

In the event of [subdivision] disapproval, the planning board shall state in detail wherein the plan does not conform to the rules and regulations of the planning board . . . and shall revoke its disapproval and approve a plan which, as amended conforms to such rules and regulations or recommendations.

Pursuant to this language, the Decision stated in detail the deficiencies of Plan 1, yet Plaintiff, after repeated opportunities to do so, did not file an amended plan that conformed with the Rules and Regulations. It is true that Plaintiff and Defendant negotiated for a significant amount of time as to plan revisions, and Plaintiff prepared Plan 2 in that regard. By Danena’s own language, however, as stated in Robert Murphy’s Affidavit dated February 22, 2007, Plan 2 had two primary substantive changes over Plan 1: (1) the intersection of Beech Hill Road with Plymouth Street was altered; [Note 13] and (2) the second point of access into the Subdivision, Tillson Street, was removed, resulting in the length of a dead-end street which violated the terms of the Rules and Regulations. [Note 14] These changes in Plan 2 resulted in a requirement for waivers which made Plan 2 far different from Plan 1, in which Plaintiff sought no waivers. Consequently, Plan 2’s substantive alterations prevent it from complying with the requirements of the Rules and Regulations. Moreover, Plaintiff had more than a year to resolve plan modifications pursuant to G. L. c. 41, § 81U, and it was unable to do so. Finally, Plaintiff never filed Plan 2 with Defendant, and chose to litigate Plan 1. As a result, I find that, despite given ample opportunity, Plaintiff failed to meet the Decision’s conditions and, thus, failed to comply with G. L. c. 81, § 41U and the Rules and Regulations.

Plaintiff further alleges other forms of discrimination by both Defendant and the Town of Whitman, including that: (1) the Town itself does not meet the requirements under the Rules and Regulations for road construction of Town roads; (2) the Town has granted waivers to other subdivisions that it did not offer Plaintiff; and (3) the Town has granted access to the Town sewer for other subdivisions after the implementation of the sewer moratorium. Plaintiff, however, does not support such allegations with sworn facts, nor did he file a Statement of Material Facts with his opposition. In fact, he did not file any affidavits with his opposition (he filed one affidavit earlier in this litigation in connection with his dispute over the payment of engineering fees to the Town). [Note 15] As such, I find that Plaintiff’s claim of selective enforcement fails. [Note 16] Moreover, independent of such allegations, each subdivision application is to be decided on its own particular facts, and Plaintiff must demonstrate that Plan 1 meets the relevant criteria of the Rules and Regulations.

Within his count for injunctive relief, Plaintiff also argues a violation of the Open Meeting Law and due process infringements. Plaintiff claims that the letter of PMP given to Defendant prior to the public hearing, in which PMP recommending denying Plan 1, indicates prior action by Defendant. However, Plaintiff presented no facts in its summary judgment opposition to establish such violation. [Note 17] In its argument, Defendant assumes that Plaintiff’s allegations were based on the fact that Defendant, prior to the public meeting, asked PMP to review Plan 1 and submit comments. As Defendant states, such review is a common practice in a subdivision review. Moreover, the record shows that representatives of PMP were at the public hearing and that Defendant discussed the PMP letter at the public hearing. Moreover, while Defendant voted at the close of the public hearing, it did not file its decision with the Town Clerk until two days later. As a result, I find that Defendant did not violate the Open Meeting Law and that there was no infringement upon Plaintiff’s right to due process.

As a result of the foregoing, I find no basis for Plaintiff’s argument that the Decision was arbitrary, capricious or unreasonable, or beyond the scope of authority of Defendant. I ALLOW Defendant’s Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: April 23, 2009