WALKER DEVELOPMENT CORP. vs. ROBERT GORE, ROBERT FORD, HOLLY LANGER, ELLEN NESTERVICH, ROBERT STEVENS, JOSEPH HILL, and STEVE MERRIAM, as they are Members of the PLANNING BOARD FOR THE TOWN OF BOXFORD

Plaintiff filed its unverified Complaint on March 23, 2007, pursuant to G.L. c. 41, § 81BB, appealing a decision of Defendant Planning Board for the Town of Boxford which denied Plaintiff’s request to grant “approval under the subdivision control law not required” (“ANR”) for land located on Bennett Road in Boxford, MA (“Locus”). A Case Management Conference was held on May 8, 2007. Plaintiff filed its Motion for Summary Judgment on July 16, 2007, together with supporting memorandum and Statement of Undisputed Facts. On August 13, 2007, Defendant filed its Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Legal Elements, and Statement of Additional Material Facts. Plaintiff filed its Reply Brief on September 19, 2007, together with Motion to Supplement Summary Judgment Record. [Note 1] On September 28, 2007, Defendant filed its Opposition to Plaintiff’s Motion to Supplement Summary Judgment Record. At a hearing on all motions held on October 24, 2007, both parties requested that this court remand the matter to Defendant, and this court issued a Remand Order on October 31, 2007.

After a public hearing, Defendant issued a Decision on Remand Hearing on November 28, 2007. The parties filed a joint status report on November 30, 2007, and January 9, 2008, at which time this court scheduled another summary judgment hearing. On January 14, 2008, Plaintiff filed Supplemental Affidavit of Thomas E. Neve. Defendant filed Supplemental Affidavit of Leonard Philips on March 20, 2008. [Note 2] A new summary judgment hearing on this matter was held on March 24, 2008, at which Plaintiff filed a Motion to Strike Supplemental Affidavit of Leonard Philips. Defendant filed its Opposition to Plaintiff’s Motion to Strike on March 25, 2008. On April 10, 2008, Defendant filed its Supplemental Memorandum in Support of its Motion for Summary Judgment, and on April 11, 2008, Plaintiff filed its (Supplemental) Memorandum in Support of its Motion for Summary Judgment, at which time the matter went under advisement.

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).

This court finds that the following facts are not in dispute:

1. Plaintiff is the proposed Buyer of Locus under a purchase and sale agreement with Seller, Farr Better Homes, Inc., with a purchase price of $475,000. [Note 3] Locus contains approximately twenty acres on Bennett Road and is located in the R-A Zoning District (with portions also located within the Conservancy Overlay District) under the Town of Boxford Zoning Bylaw (the “Bylaw”). A significant portion of Locus contains interior wetlands. Section 196-24.D(3) of the Bylaw includes a so-called “Frontage Exception,” which provides that, in an R-A Zoning District, a lot containing at least six acres shall require a frontage of only fifty feet. Locus contains approximately 622 feet of frontage on Bennett Road. Bennett Road is a public way. Each of the three lots shown on the 2003 Plan, as hereinafter defined, had adequate lineal frontage on Bennett Road.

2. Plaintiff prepared an ANR Plan titled “Plan of Land in Boxford, Mass. Prepared for Walker Development, Corp.” dated July 16, 2003, and drawn by Thomas E. Neve Associates, Inc. (the “2003 Plan”), which showed the division of Locus into three lots with frontage on Bennett Road. [Note 4] The 2003 Plan also showed a common driveway (the “Common Driveway”) across Lot 21A providing access to the rear of the other two lots utilizing a single wetland crossing on Lot 21A. The Common Driveway was approximately 1160 feet long and twelve-feet wide. [Note 5]

3. The interior wetlands on Locus (a perennial stream known as Fish Brook and associated marsh) are approximately fifty-five to one hundred feet from Bennett Road. The location of the proposed houses on the 2003 Plan were to the rear of the lots beyond the wetlands because the upland for two of the lots contiguous to Bennett Road was insufficient to build a structure pursuant to the Bylaw. [Note 6]

4. On July 24, 2003, the Boxford Zoning Board of Appeals (the “ZBA”) approved a special permit for the Common Driveway. This special permit required that a conservation restriction relative to Locus be created and approved by the Massachusetts Executive Office of Environmental Affairs, which would prohibit development of the area marked as “Dedicated Conservation Restricted Area” on the 2003 Plan.

5. The 2003 Plan was filed with Defendant on August 20, 2003. On August 21, 2003, Defendant denied the 2003 Plan (“August 2003 Planning Board Decision”). [Note 7] Such denial stated that

6. As a result of a remand order, Plaintiff refiled the original 2003 Plan with Defendant on November 9, 2004. A remand hearing was held by Defendant on December 1, 2004, and by decision dated December 2, 2004 (the “December 2004 Planning Board Decision”), Defendant denied the 2003 Plan. This decision stated:

7. On December 16, 2004, Plaintiff filed an appeal of the December 2004 Planning Board Decision with the Land Court (Misc. Case No. 304598).

8. On February 9, 2005, the Department of Environmental Protection (the “DEP”) issued a Superceding Order of Conditions with respect to Lot 21A, altering the design of the Common Driveway crossing from a culvert to a bridge span. On September 2, 2005, the Town of Boxford Conservation Commission (the “Conservation Commission”) issued an Order of Conditions consistent with the DEP Superceding Order of Conditions which contained a condition requiring a conservation restriction (the “Conservation Restriction”) in perpetuity to prevent construction in the wetlands on Lots 21B and 21C. [Note 9] Plaintiff has neither applied for nor received any approvals for such bridges.

9. By decision dated May 10, 2006 (the “Land Court Decision”), this court found “that the steep slope between Lots 21B and 21C and Bennett Road, and the resulting guardrail in front of a portion of Lot 21B, do not provide present adequate access, and therefore, access to Lot 21B and Lot 21C is illusory.” Walker Dev. Corp. v. Gore, 14 LCR 280 , 284 (2006) (Misc. Case. No. 304598) (Sands, J.). [Note 10]

10. On February 21, 2007, Plaintiff submitted a revised plan for Locus dated February 9, 2007 (the “February 2007 Plan”), to Defendant, proposing to divide Locus into two lots. As shown on such plan, Lot 1 contained 6 acres with a frontage of 67.55 feet, and Lot 2 contained 14.25 acres with a frontage of 554.80 feet. Both Lot 1 and Lot 2 have sufficient acreage and lineal frontage under the Bylaw.

11. By decision dated March 9, 2007 (the “March 2007 Planning Board Decision”), Defendant refused to endorse the February 2007 Plan. The March 2007 Planning Board Decision stated:

Plaintiff appealed the March 2007 Planning Board Decision to this court on March 23, 2007, and a case management conference was held on May 8, 2007. At that conference a summary judgment hearing was set up for October 24, 2007. In that regard, both sides filed summary judgment motions and briefs.

12. Plaintiff filed a revised plan dated September 25, 2007 (the “September 2007 Plan”), adding topographical lines to the February 2007 Plan, and showing an access road from Bennett Road onto each lot. The access road into Lot 1 shows a 10% grade; the access road into Lot 2 shows a 12% grade.

13. At the joint request of both parties, this court issued a Remand Order to Defendant dated October 31, 2007. As a result, the previously scheduled summary judgment hearing scheduled for October 24, 2007, was postponed.

14. Plaintiff submitted a new topographical plan to Defendant titled “Access and Frontage Informational Plan” dated November 8, 2007, and prepared by Neve (the “November 2007 Plan”), which added a reference to the Frontage Exception. By decision dated November 29, 2007, Defendant voted 2-2 to refuse to endorse this plan. This decision stated that

15. In response to the issues Defendant raised relative to the accuracy of the November 2007 Plan, Neve amended the November 2007 Plan by revised plan dated December 5, 2007 (the “December 2007 Plan”) (all 2007 Plans together, the “2007 Plans”). In this revised plan, Neve extended topographical lines throughout the entirety of the upland area and added a second proposed driveway access location for Lot 2 and calculated the existing grade in that location to be 10%. Although this plan was discussed at a Planning Board meeting on December 12, 2007, Defendant did not take another vote.

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As a preliminary matter, this court must first address Plaintiff’s Motion to Strike the (Supplemental) Affidavit of Leonard Philips. [Note 11] Plaintiff argues that the Affidavit is untimely, prejudicial, irrelevant, inadmissible hearsay, and unsupported opinion testimony. Plaintiff’s Motion to Strike the (Supplemental) Affidavit of Leonard Philips is ALLOWED IN PART, as follows: with respect to the timeliness and prejudicial effects of the Affidavit, since both parties were given two and one-half weeks to file supplemental briefs, the timeliness of the Philips Affidavit is not a problem; I shall ignore all information relative to the chronology of the hearings as such information is not relevant to the issue in this case; and I shall give no weight to a reference to a plan prepared by Philips, as such plan is not in evidence before this court, but I shall allow evidence as to the specific grades shown on the 2007 Plans as specified in paragraphs 6 and 7 of the Supplemental Affidavit.

Plaintiff’s appeal comes to this court pursuant to G. L. c. 41, § 81BB, which states that “[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.” 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 deny the plan. Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 84-85 (1976).

In the prior action related to the three-lot 2003 Plan (Misc. Case No. 304598), this court found that access to two of the three lots (Lots 21B and 21C) was illusory due to steep slopes onto Lots 21B and 21C and the presence of a guardrail across a portion of Lot 21B. However, this court did not find that Lot 21A had illusory frontage. In the present action, Plaintiff has submitted a two-lot ANR plan (the 2007 Plans), with both lots showing adequate lineal frontage on Bennett Road. [Note 12] As such, the sole issue for this case is whether access at the frontage of Lots 1 and 2 as shown on the 2007 Plans is illusory.

Plaintiff argues that the reconfiguration on the 2007 Plans from three lots to two lots results in the frontage of all of Lot 1 and a portion of Lot 2 in the area where the frontage of Lot 21A on the 2003 Plan existed. In other words, Plaintiff suggests that the frontage for all of Lot 1 and a portion of Lot 2 is in an area that is not excessively steep and is not blocked by a guardrail. As a result, Plaintiff argues, access is not illusory and Defendant must approve the December 2007 Plan. Finally, in its Reply to Defendant’s Opposition and Motion for Summary Judgment, Plaintiff points to the Common Driveway, which is fully designed and permitted and which would provide access to the buildable portions of Lots 1 and 2, respectively. [Note 13] In Defendant’s Cross-Motion for Summary Judgment, it argues that Plaintiff had not submitted any evidence (i.e., topography) as part of the February 2007 Plan addressing the illusory access issues of the Land Court Decision. Moreover, Defendant argues that, even if there was adequate threshold access to the front portion of the two lots, interior wetlands prevented actual access to the rear buildable portions of the two lots. Defendant also asserts that the Conservation Commission, in approving the Common Driveway, forbade any wetlands crossings for any other area on Locus.

When Plaintiff filed a Motion to Supplement the Summary Judgment record and to add new evidence from its engineer (Neve), Defendant requested that a complete topographic plan be submitted by Plaintiff indicating that access was not illusory as found in the earlier decision. Plaintiff, in fact, did this by filing the September 2007 Plan [Note 14] together with an affidavit of Neve which stated that “[i]n both cases the existing grade is reasonable for a residential driveway and would provide acceptable vehicular access onto each of the lots according to good engineering practice.” [Note 15] Plaintiff also filed the November 2007 Plan and the December 2007 Plan, which added a second proposed access onto Lot 2, an explanation of valid linear frontage based on the Frontage Exception, and a supplemental affidavit from Neve which stated that he had amended the 2007 Plans “to extend topographical lines throughout the entirety of the upland area on the Locus adjacent to Bennett Road.” Neve’s Supplemental Affidavit goes on to state that he “also added a second proposed driveway access location for Lot 2 and calculated the existing grade in that location to be 10%.” [Note 16]

Based on the foregoing, Plaintiff, through the 2007 Plans, provided Defendant with evidence that such plans addressed the problems of the 2003 Plan, which plan was rejected by Defendant and Defendant’s decision was upheld by the Land Court Decision. In the Land Court Decision, this court indicated that the threshold obstructions to frontage access (steepness and barriers) did not apply to Lot 21A. Lot 1’s frontage, as shown on the 2007 Plans, is located entirely within Lot 21A’s frontage, as shown on the 2003 Plan; a portion of Lot 2’s frontage, as shown on the 2007 Plans, includes frontage that compromised Lot 21A’s frontage, as shown on the 2003 Plan. The summary judgment record reveals that Lot 2 has at least fifty feet of frontage with an immediate adjacent slope of 10%-12% along the westerly portion of its frontage, and Lot 1 has frontage with an immediate adjacent slope of 10% along the westerly portion of its frontage. Furthermore, the record indicates that both lots have adequate lineal frontage under the Bylaw. As a result, I find that Lot 1’s frontage and at least fifty feet of Lot 2’s frontage on Bennett Road, with respect to threshold access, is not illusory.

Defendant next argues that the wetlands remain an issue as to adequate access, because any structure on either lot would have to be located on the rear buildable portions of such lots, and one must cross significant wetlands to access such portions. The issue of wetlands with respect to adequate access was discussed extensively in the Land Court Decision, which relied primarily on Corcoran v. Planning Bd. of Sudbury, 406 Mass. 248 (1989). See Walker Dev. Corp., 14 LCR at 282-83. [Note 17] In Corcoran, the Supreme Judicial Court (the “SJC”) noted that “[t]he presence of wetlands on the lots does not raise a question of access from the public way, but rather the extent to which interior wetlands can be used in connection with structures to be built on the lots.” Corcoran, 406 Mass. at 251. The SJC then affirmed the trial court’s reversal of a local planning board’s denial of ANR endorsement, holding that

Id. at 251-52.

Defendant cites Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394 (2000), in which the Appeals Court overturned a trial court’s reversal of a local planning board’s denial of ANR endorsement involving interior wetlands. Id. at 401. In Gates, however, the Appeals Court also relied on the “peculiar shapes” of the lots rather than the wetlands themselves. Id. at 399-400 (describing the lot shapes at issue as “a boomerang, an ‘L,’ an arch and a labyrinth”). In Gates, after finding the lots at issue peculiar in shape, the Appeals Court looked to the “length and errant routes” that needed to be traversed to travel from the public way to the buildable portion of the lots. Id. at 400. Because of the severity of such paths, the developer was reduced to accessing the lots from alternate routes and conceded that approaching the lots from the public way would be an “‘environmental disaster’ as well as an economic calamity.” Id.

The odd lot shapes in Gates were a result of soil conditions (i.e., wetlands). Id. at 399. Contrastingly, the shape of Lot 2 is jagged due to the existing easterly boundary line, not as a result of a proposed lot line between Lots 1 and 2. Additionally, whereas the 2007 Plans show that Lot 1 and Lot 2 have upland directly adjacent to Bennett Road (but not in quantities sufficient to build upon under the Bylaw), in describing eight of the twelve the lots at issue in Gates, the Appeals Court found “the front land is wetland and unsuitable for residential construction.” Id. at 399 (emphasis added). [Note 18] While such use of the phrase “front land” is somewhat vague in this context, this court again points to Corcoran’s clear distinction (which was articulated by the SJC prior to Gates) between the mere existence of interior wetlands and the presence of physical impediments to threshold access or extreme lot configurations. Corcoran, 406 Mass. at 251. Neither Lot 1 nor Lot 2 suffer from such defects when compared to the facts of Gates. Finally, Gates involved a proposed extension and use of an existing private way for lot access, which the Appeals Court noted “g[a]ve the game away.” Id. at 401. This is not the case here for the character of the Common Driveway is far different from the “road system” proposed in Gates.

In the case at bar, both Lot 1 and Lot 2 feature non-rectangular shapes, but not to the degree that the shapes create long narrow necks from the frontage to the buildable portion of the lot, unsafe directional changes, and inadequate site distances and angles at the frontage on the access way. Contra Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 , 805-06 (1978). As such, I find that the presence of the wetlands on Locus does not, by itself, result in illusory access with respect to Lots 1’s and Lot 2’s frontage on Bennett Road. As a result of the foregoing, I ALLOW Plaintiff’s Motion for Summary Judgment and DENY Defendant’s Cross-Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: May 13, 2009