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 at 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. 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. A decision of today’s date has been issued.

In accordance with that decision it is:

ORDERED and ADJUDGED that 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; 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.

ORDERED and ADJUDGED that Lot 1’s frontage and at least fifty feet of Lot 2’s frontage, as shown on Plaintiff’s revised ANR plan for Locus dated February 9, 2007, and submitted on February 21, 2007, on Bennett Road, with respect to threshold access, is not illusory.

ORDERED and ADJUDGED 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.

ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is ALLOWED and Defendant’s Cross-Motion for Summary Judgment is DENIED.

By the court. (Sands, J.)