MISC 297426

April 23, 2009

Sands, J.


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 as a result of 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 the 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). This court held a hearing on Defendant’s Motion for Summary Judgment on October 6, 2008, at which Plaintiff did not appear and did not advise this court of his absence. [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. A decision of today’s date has been issued.

In accordance with that decision it is:

ORDERED and ADJUDGED that Defendant’s Motion to Strike is ALLOWED.

ORDERED and ADJUDGED that the definitive subdivision plan filed on December 10, 2003, and titled “‘Ryehill Estates’ A Definitive Subdivision located in Whitman, Massachusetts” dated September 3, 2003 failed to comply with the Town of Whitman Planning Board Rules and Regulations (the “Rules and Regulations”), and no waivers were requested in this regard.

ORDERED and ADJUDGED that despite given ample opportunity, Plaintiff failed to meet the conditions of the decision filed with the Whitman Town Clerk on February 19, 2004 (the “Decision”) and, thus, failed to comply with G. L. c. 81, § 41U and the Rules and Regulations.

ORDERED and ADJUDGED that Plaintiff’s claim of selective enforcement fails.

ORDERED and ADJUDGED that Defendant did not violate the Open Meeting Law and that there was no infringement upon Plaintiff’s right to due process.

ORDERED and ADJUDGED that Plaintiff provided no basis for his argument that the Decision was arbitrary, capricious or unreasonable, or beyond the scope of authority of Defendant.

ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is ALLOWED.

By the court. (Sands, J.)


[Note 1] Plaintiff also brought a count for injunctive relief to require Defendant to allow Plaintiff to bring the Subdivision into conformity with the stated conditions for denial. The Complaint stated, “Crosby was and is ready, willing and able to make each and every one of the changes to the Definitive Plan.”

[Note 2] A Revised Remand Order was issued on October 23, 2006. Defendant never issued a decision with respect to the Revised Remand Order.

[Note 3] On October 14, 2008, Plaintiff filed a letter with this court indicating that family medical issues prevented him from attending the hearing.