WALL STREET DEVELOPMENT CORP. v. GEORGE P. HASEOTES, JEFFREY S. TEMKIN, MICHAEL R. PAPETTI, SHARON D. PAPETTI, THOMAS R. HILLER, and KELLY L. HILLER.

Plaintiff Wall Street Development Corp. filed its unverified Complaint (Misc. Case No. 371518) on February 19, 2008, pursuant to G. L. c. 231A, seeking a declaratory judgment relative to an access easement connecting Plaintiff’s proposed subdivision (“Morgan Farm Estates”) and an adjoining subdivision (“Powissett Estates”), both located in Westwood, MA. The named individual Defendants are homeowners in Powissett Estates (“Homeowners”). Plaintiff also sought specific performance under the Easement, as hereinafter defined, requiring Homeowners to execute Plaintiff’s application for modification of the definitive subdivision plan for Powissett Estates. On April 14, 2008, Defendant Jeffrey S. Temkin (“Temkin”) filed his Answer and Counterclaim for misrepresentation. Defendants Michael R. Papetti and Sharon D. Papetti (“Papetti”) filed their Answer on May 1, 2008, as did Defendants Thomas R. Hiller and Kelly L. Hiller (“Hiller”). On May 5, 2008, Defendants George P. Haseotes (“Haseotes”) and Adga Realty, LLC (“Adga”) filed their Answer, and on the same day Plaintiff filed its Answer to Counterclaim of Temkin. [Note 1]

Plaintiff filed its unverified Complaint (Misc. Case No. 381211) on May 21, 2008, appealing, pursuant to G. L. c. 41, § 81BB, the decision of Defendant Westwood Planning Board (the “Planning Board”) that denied Plaintiff’s application for approval of a modification of the definitive subdivision plan for Powissett Estates and for approval of a definitive subdivision plan for Morgan Farm Estates. The Planning Board filed its appearance on June 16, 2008, and an Answer on August 18, 2008.

Plaintiff filed its Motion for Partial Summary Judgment relative to Misc. Case No. 371518 on November 25, 2008, together with supporting memorandum, Statement of Undisputed Material Facts, and Affidavit of Louis Petrozzi. Papetti and Hiller filed their Opposition on December 24, 2008, Temkin filed his Opposition on December 30, 2008, and Haseotes and Agda filed their Opposition on January 5, 2009. Plaintiff filed its Reply Brief on January 21, 2009. Plaintiff also filed its Motion for Summary Judgment relative to Misc. Case No. 381211 on November 25, 2008, together with supporting memorandum and Statement of Undisputed Material Facts. On January 21, 2009, the Planning Board filed its Opposition. A hearing was held on both motions on March 2, 2009, at which time all motions were taken 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. Mass. R. Civ. P. 56(c). See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976).

The following facts are not in dispute:

1. Plaintiff owns a parcel of land (“Locus”) containing 20.6 acres located adjacent to Morgan Farm Road in Westwood, MA. Locus abuts to the south an existing twelve-lot residential subdivision (Powissett Estates), formerly owned by Nicholas Stivaletta, Jr. (“Stivaletta”). [Note 2] A portion of Locus approximately 470 feet long and twenty-feet wide, shown as Parcel A (“Parcel A”) and Parcel B (“Parcel B”) on Powissett Subdivision Plan 1, as hereinafter defined, separates Powissett Estates from Morgan Farm Road, a public road serving as access to Powissett Estates.

2. By Agreement dated May 30, 1997 (the “Agreement”), Boruch Frusztajer (“Frusztajer”), former owner of Locus, agreed to convey Parcel B to Stivaletta in return for an easement to allow access from Locus to the subdivision roads in Powissett Estates. [Note 3] The Agreement was not recorded with the Norfolk County Registry of Deeds (the “Registry”) and was never consummated.

3. Stivaletta, the Woodland Road Trust, and Frusztajer (as owner of Parcel B) filed a twelve-lot subdivision application for Powissett Estates with the Planning Board on August 11, 1998. By Certificate of Vote dated October 27, 1998 (“Powissett Decision 1”), the Planning Board approved Powissett Estates, as shown on plan titled “Definitive Subdivision Plan Powissett Estates in Westwood, Mass.” dated August 7, 1998, and prepared by Guerriere & Halnon, Inc. (“Powissett Subdivision Plan 1”), which contained two cul-de-sac subdivision roads, Road A (“Road A”) (1,167.86 feet long extending from Morgan Farm Road) and Road B (“Road B”) (532.36 feet long extending from Woodland Road). Road A and Road B were connected by a connector right-of-way (the “Connector ROW”) approximately 200 feet long by fifty feet wide. Powissett Decision 1 granted a number of waivers, including a waiver of the maximum length of a dead-end street for both Road A and Road B. Powissett Decision 1 referenced the Connector ROW as an “emergency vehicle access connecting the two cul-de-sac roadways,” and provided that the Connector ROW be paved to a width of twelve feet. [Note 4], [Note 5] Powissett Decision 1 also stated that “[t]he Planning Board determined that the road and lot layout of this Plan most closely met the intent and purposes of the Subdivision Control Law, as compared to the other alternative plans that were reviewed by the Board including the through street plan.” As shown on Powissett Subdivision Plan 1, Road A connected with Morgan Farm Road across Parcel B; a fifty-foot wide right-of-way (the “Easement ROW”) connected Road A and Locus.

4. On December 4, 1998, Plaintiff, as buyer under a purchase and sale agreement with Frusztajer, filed an eleven-lot subdivision application for Locus with the Planning Board (“Morgan Farm Subdivision 1”). [Note 6] The primary access was from an extension of Morgan Farm Road, and the secondary access was from the Easement ROW through Road A in Powissett Estates.

5. By Certificate of Vote dated May 19, 1999 (“Morgan Farm Decision 1”), the Planning Board denied Morgan Farm Subdivision 1, citing, as one of the primary reasons, the lack of proper access (both primary and secondary) to the subdivision due to a violation of the 500 foot length dead-end street requirement in the Rules and Regulations. Plaintiff filed an appeal of this denial (Misc. Case No. 256953) on June 9, 1999, which was dismissed without prejudice on December 16, 2003.

6. By deed dated July 12, 2000, Frusztajer conveyed Locus to Plaintiff.

7. On November 13, 2000, Plaintiff granted Stivaletta and the Woodland Road Trust a perpetual easement over Parcel A and Parcel B, including the right to construct a subdivision roadway thereon. This easement was recorded with the Registry in Book 14626, Page 552.

8. On December 12, 2000, Stivaletta, individually and as Trustee of the Fairway Realty Trust, and the Woodland Road Trust, granted Plaintiff a perpetual easement titled Grant of Easements and Agreement (the “Easement”) for the benefit of Locus to use Road A, Road B, the Connector ROW, and the Easement ROW “for all purposes for which streets and ways are now or may hereafter be used in the Town of Westwood,” including the right to install and replace utilities. [Note 7] Paragraph 3 of the Easement states, in part:

Following execution and delivery of this Grant of Easements and Agreement, Grantor shall promptly commence and diligently prosecute to completion, construction of the Subdivision Roads in accordance with the Definitive Subdivision Plan, as it may be amended. In any event, Grantor shall complete such construction within three (3) years following the date hereof. . . . The design and construction of the Subdivision Roads and [C]onnection Right of Way shall be such that any vehicles that can use the public streets in the Town of Westwood can use the Subdivision Roads and Connection Right of Way.

(emphasis added.) [Note 8] Paragraph 4 of the Easement states that “Grantor acknowledges that Grantee intends to subdivide Grantee’s Land and the use of the easement areas by Grantee or the future lot owners of Grantee’s Land shall not be considered overburdening the Easements or easement areas by Grantor or its successors and assigns.” Paragraph 5 of the Easement states, in part: It is Grantee’s intent to file an application for a definitive subdivision of Grantee’s Land with the Westwood Planning Board. Grantor agrees to cooperate with Grantee in connection with such application and agrees to sign any application that may reasonably be required in order to facilitate Grantee’s proposed subdivision of Grantee’s Land and Grantee’s exercise of the Easements granted herein, including, but not limited to, an application for modification of any approval of the Definitive Subdivision Plan . . . . Grantor’s agreement to sign any application to modify the Definitive Subdivision Plan shall be limited to those instances where such a modification is necessary to allow Grantee to obtain approval of a subdivision of Grantee’s Land, . . .

The Easement was recorded with the Registry in Book 14626, Page 533.

9. On January 18, 2001, Stivaletta, the Woodland Road Trust, and Plaintiff (as owner of Parcel B) filed an Application for Approval of Definitive Subdivision Plan relative to Powissett Estates with the Planning Board. This application proposed modifications to Powissett Estates as shown on a plan titled “Modification of Definitive Subdivision Plan Powissett Estates Major Residential Development in Westwood, Mass.” dated July 11, 2000, and prepared by Guerriere & Halnon, Inc. (“Powissett Subdivision Plan 2”). The modification resulted from negotiations with the Westwood Conservation Commission resulting from a denied Notice of Intent relative to Powissett Estates.

10. By Certificate of Vote dated May 7, 2001, the Planning Board approved modifications to Powissett Estates (“Powissett Decision 2”) pursuant to Powissett Subdivision Plan 2, reconfiguring a number of the lots, substantially shortening the length of Road A (from 1,167.86 feet to 735.10 feet), and expanding the length of the Connector ROW to more than 500 feet. As a result, the Easement ROW connected Locus to the Connector ROW, rather than Road A. On August 7, 2001, the Planning Board endorsed Powissett Subdivision Plan 2.

11. Powissett Decision 2 granted numerous waivers and provided that

[t]he [Connector ROW] shall be paved to a width of twelve (12) feet and shall provide access to one lot located on the westerly side of said right-of-way and shall also provide for use by emergency and public safety vehicles and for pedestrian and bicycle access at all times. . . . The purpose of this 12-foot roadway beyond the driveway serving the one building lot is for use by emergency and public safety vehicles only and for pedestrian and bicycle access at all times. . . .

Powissett Decision 2 further stated that the Connector ROW and the Easement ROW “shall remain private ways in perpetuity and shall not be proposed or accepted as public ways. There shall also be no non-emergency municipal services provided to said rights-of-way, which include snow and trash removal.” Powissett Decision 2 also required that

[t]he Applicant shall submit the final Articles of Association and Imposition of Covenants and Easements to the Planning Board for their final review and approval. These articles shall then be recorded at the Norfolk County Registry of Deeds and a copy of the recording be forwarded to the Planning Department.

Powissett Decision 2 was not appealed.

12. A Covenant dated January 2, 2002 (the “Covenant”), that secured the construction of ways and the installation of municipal services as shown on Powissett Subdivision Plan 2 was executed by the Fairway Realty Trust, the Woodland Road Trust, Matthew J. Tryder, and Plaintiff (as owner of Parcel B) and accepted by the Planning Board.

13. The “Articles of Association and Imposition of Covenants and Easements Powissett Estates Homeowners’ Association Westwood, Massachusetts” (the “Articles of Association”) dated November 21, 2002, and executed by the Fairway Realty Trust, Matthew J. Tryder, and Plaintiff, created the homeowners’ association for Powissett Estates, provided for the ownership and maintenance of the subdivision roads, and required compliance with Powissett Decision 2 and the Order of Conditions. The Articles of Association incorporated all of the conditions of Powissett Decision 2. Article V, Section 1.H of the Articles of Association states:

There is hereby imposed upon the Land all restrictions necessary to effectuate or permit compliance at all times with the Orders of Condition and the Planning Board Decisions as presently in effect. To the extent that the Orders of Condition and the Planning Board Decisions are amended hereafter so as to require less stringent restrictions in order to effectuate or permit compliance with the Orders of Condition and the Planning Board Decisions as so amended, such restrictions shall be deemed lessened accordingly.

Article VII of the Articles of Association states:

Any and all provisions of this instrument shall be enforceable by the Association and also by any Lot Owner. The Municipality shall be deemed to have an interest in the provisions of this instrument insofar as such provisions relate to performance of the Storm Water Management System Activities, compliance with the Orders of Condition and the Planning Board Decisions, as the same may be amended from time to time, or the maintenance, until occurrence of the Account Responsibility Termination Event, of funds in the Assigned Account at a level of at least Twenty-Five Thousand Dollars ($25,000.00) (the “Municipality-Interest Covenants”), and the Municipality shall have the right to enforce the Municipality-Interest Covenants.

A paragraph on the signature page of the Articles of Association beneath the signature of Plaintiff states:

Wall Street Development Corp. (“Wall Street”) signs these Articles of Association solely in its capacity as the owners of 4,745 square feet of land within the Powissett Estates subdivision. By so signing, Wall Street does not waive, and expressly reserves (i) any and all rights that Wall Street has under that certain Grant of Easements and Agreement, dated December 12, 2000 and recorded with Norfolk County Registry of Deeds in Book 14626, Page 533, and (ii) any and all claims Wall Street has made, or in the future may make, in Land Court Misc. Case No. 256953, or in any subsequent litigation filed by Wall Street against the Westwood Planning Board or any other party.

14. On October 26, 2004, Plaintiff filed with the Planning Board an application for a special permit (the “Special Permit Application”) pursuant to the provisions of Section 8.5 of the Zoning By-law of the Town of Westwood (the “By-law”), which requires a special permit for residential divisions of land that create four or more lots. [Note 9] On May 31, 2005, the Planning Board denied the Special Permit Application (the “Morgan Farm Special Permit Decision”), finding that “since it has not been adequately demonstrated that the Conventional Plans can be expected to be developed without the use of bonuses or substantial waivers or variances from applicable development regulations, the Applicant has not met the required threshold for the Planning Board to consider the Alternative Plan.” [Note 10] The Morgan Farm Special Permit Decision was the basis for the appeal in Misc. Case No. 310559.

15. On June 10, 2005, Plaintiff filed with the Planning Board an application for approval of a nine residential lot definitive subdivision plan (“Morgan Farm Subdivision 2”), using as its primary access a lengthy extension of Morgan Farm Road and as its secondary access the Easement ROW connecting to the Connector ROW and the subdivision roads in Powissett Estates. The Planning Board denied the application on October 11, 2005 (“Morgan Farm Decision 2”), primarily on the basis for the need of a waiver for the length of dead-end streets, stating that the “proposed ±1,250-foot extension of the existing Morgan Farm Road dead-end street, which has an existing length of 500 feet, exceeds the 500-foot maximum length standard in Section IV.A.4.b.” Furthermore, relative to the Connector ROW, Morgan Farm Decision 2 states, “[t]his right-of-way between the dead-end streets of Little Boot Lane [formerly Road A] and Shoe String Lane [formerly Road B] is restricted to emergency and pedestrian access only and there has been no change in the adjoining subdivision’s definitive subdivision and special permit approvals to allow for a change in the use and/or construction standard of said right-of-way.” Morgan Farm Decision 2 was the basis for the appeal in Misc. Case No. 315094.

16. On July 20, 2005, Plaintiff filed with the Planning Board an application for approval of a three residential lot subdivision plan (“Morgan Farm Subdivision 3”), using a shorter extension of Morgan Farm Road (but longer than 500 feet) as access and deleting a secondary access across the subdivision roads in Powissett Estates. The Planning Board denied the application on November 15, 2005 (“Morgan Farm Decision 3”), primarily on the basis of the need for waiver of the length of dead-end street provision. Morgan Farm Decision 3 was the basis for the appeal in Misc. Case No. 316279.

17. Plaintiff appealed the Morgan Farm Special Permit Decision, Morgan Farm Decision 2, and Morgan Farm Decision 3 to the Land Court, and by decision dated April 26, 2007, this court upheld these three Planning Board decisions (the “Land Court Decision”). Plaintiff appealed the Land Court Decision to the Massachusetts Appeals Court, and by decision dated October 14, 2008, the Appeals Court upheld the Land Court Decision and the three Planning Board decisions. Wall Street Dev. Corp. v. Planning Bd. of Westwood, 72 Mass. App. Ct. 844 (2008) (“Wall Street I”). Plaintiff further appealed Wall Street I to the Supreme Judicial Court (the “SJC”), and on January 29, 2009, the SJC denied further appellate review (the “FAR Denial”). Wall Street Dev. Corp. v. Planning Bd. of Westwood, 453 Mass. 1103 (2009).

18. On October 31, 2007, Plaintiff filed an application (the “Modification Application”) for a Second Modification of Definitive Subdivision of Powissett Estates (“Powissett Subdivision Plan 3”) with the Planning Board, and on December 21, 2007, Plaintiff filed an application for an eleven-lot Definitive Subdivision of Morgan Farm Estates (“Morgan Farm Subdivision 4”). Powissett Subdivision Plan 3 sought an amendment to allow construction of a full subdivision road within the Connector ROW so as to give Plaintiff full access to the Powissett Estates subdivision roads for its own access and to bypass the need for a waiver of dead-end street. Powissett Subdivision Plan 3 would not require the grant of any waivers.

19. By letters dated December 22, 2007, and January 29, 2008, Plaintiff wrote to Homeowners requesting that they sign the Modification Application. [Note 11] The Homeowners who have been dismissed from this case have signed the Modification Application. [Note 12]

20. By decision dated May 13, 2008, the Planning Board denied both Powissett Subdivision Plan 3 and Morgan Farm Subdivision 4. The stated reasons for disapproval of Powissett Subdivision Plan 3 were as follows:

1. The application has been determined to be incomplete, as it does not contain the signatures of all owners of lots within the Powissett Estates Subdivision and of all holders of mortgages on such lots, as required under Massachusetts General laws Chapter 41, Section 81W.

2. Notwithstanding the above disapproval, the Planning Board, without prejudice to its determination as set forth in paragraph 1, supra, chose to consider the proposed incomplete application as if it had been complete. In so doing and after public hearing and incorporating by reference the entire record of its decision in the approval of the Definitive Subdivision of Powissett Estates dated May 7, 2001, the Planning Board of the Town of Westwood did this date, by a vote of five to zero, vote to disapprove the Second Modification of Definitive Subdivision of Powissett Estates.

3. On the basis of the evidence presented, the Board determines that there is not sufficient reason to deviate from the result that is embodied in its decision of final approval of the Powissett Estates Subdivision.

The Planning Board disapproved Morgan Farm Subdivision 4 based on six reasons. The two reasons relevant to these motions state:

1. The right-of-way between the dead-end street of Little Boot Lane [formerly Road A] and Shoe String Lane [formerly Road B in the Powissett Estates subdivision] was originally approved with conditions restricting its use to emergency and pedestrian access only. This arrangement was designed, in part, to prevent access from Dover Road to Woodland Road through the Powissett Estates Subdivision. The applicant has not demonstrated sufficient cause for the Planning Board to amend the definitive subdivision and special permit approvals for Powissett Estates to remove these restrictions and allow for a change in the use and/or construction standard of said right-of-way.

2. Section IV.A.4.a. of the Rules and Regulations Governing the Subdivision of Land in the Town of Westwood, Massachusetts [adopted December 15, 1998] (hereinafter “the Subdivision Rules and Regulations”) specifies that a dead-end street shall include, without limitation, any street with only a single access onto an existing through street. Section IV.A.4.c. of the Subdivision Rules and Regulations requires that dead-end streets shall be no longer than five hundred (500) feet and Section IV.A.4.b. specifies that no new dead-end street shall originate from an existing dead-end street unless the total new length of the combined streets is less than five hundred (500) feet. This Definitive Plan’s proposed extension of the existing Morgan Farm road dead-end street, so as to connect Morgan Farm Road to the right-of-way between the dead-end streets of Little Boot Lane and Shoe String Lane, constitutes a dead-end street as defined in the Subdivision Rules and Regulations, which exceeds the 500-foot maximum length regulation.

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Plaintiff argues that the Planning Board was obligated to approve Powissett Subdivision Plan 3 and Morgan Farm Subdivision 4, as both subdivision plans complied with the Rules and Regulations and required no waivers, and that Homeowners were legally obligated by the terms of the Easement to execute the Modification Application. Homeowners and the Planning Board contend that the FAR Denial disposes of both Powissett Subdivision Plan 3 and Morgan Farm Subdivision 4 because it finalizes the decision of the Appeals Court and confirms that, to the degree that the Easement is inconsistent with Powissett Decision 2, the Easement is not valid.

The Modification Application.

To begin, Plaintiff claims that Homeowners were required to execute the Modification Application pursuant to its terms. [Note 13] Homeowners argue that their need to execute the Modification Application is moot because (1) the Planning Board denied the Modification Application on grounds independent of an incomplete application; and (2) the Appeals Court’s decision bars the current case as issue preclusion. [Note 14] With respect to the first argument, this court is not persuaded that the Modification Application is moot merely because the Planning Board considered Powissett Subdivision Plan 3 on its merits in denying the Application. “Litigation ordinarily is considered moot when the party claiming to be aggrieved ceases to have a personal stake in its outcome.” Taylor v. Bd. of Appeals of Lexington, 451 Mass. 270 , 274 (2008) (citing Attorney Gen. v. Commissioner of Ins., 442 Mass. 793 , 810 (2004)). In light of this generality it is clear that Homeowners’ duty relative to executing the Modification Application, pursuant to the Easement, is an issue in which Plaintiff continues to hold a personal stake. Thus, I find that the issue of whether Homeowners are obligated to execute the Modification Application is not moot.

With respect to Homeowners’ issue preclusion claim, issue preclusion prevents “relitigation of issues actually litigated in the prior action.” Kobrin v. Bd. of Registration in Medicine, 444 Mass. 837 , 844 (2005). It requires: “(1) 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. at 843 (quoting Tuper v. N. Adams Ambulance Serv., Inc., 428 Mass. 132 , 134 (1998)). Homeowners claim that the Appeals Court, in Wall Street I, resolved the issue of whether the Planning Board has the power to restrict Plaintiff’s use of the Connector ROW. However, the specific facts litigated in Wall Street I are different from those involved in the Modification Application. Because Morgan Farm Special Permit Decision, Morgan Farm Decision 2, and Morgan Farm Decision 3 involve different facts and legal issues than the Modification Application, I find that the Modification Application is not barred by issue preclusion.

Homeowners next contend that they were not required to sign the Modification Application because such execution would violate the terms of G. L. c. 41, § 81W, of which the second paragraph states, in part:

No modification, amendment, or rescission of the approval of a plan of a subdivision or changes in such plan shall affect the lots in such subdivision which have been sold or mortgaged in good faith and for a valuable consideration subsequent to the approval of the plan, or any rights appurtenant thereto, without the consent of the owner of such lots, and of the holder of the mortgage or mortgages, if any, thereon; . . . [Note 15]

This argument by Homeowners is unpersuasive as the Easement was executed in 2000, which was well (at least three years) before Homeowners were conveyed their deeds. [Note 16] Such deeds were expressly conveyed subject to the Easement. As a result, this court concludes that Homeowners knew of and consented to the terms of the Easement, including agreeing “to sign any application that may reasonably be required in order to facilitate Grantee’s proposed subdivision.” Homeowners cannot now claim protection under G. L. c. 41, § 81W. As such, I find that the Modification Application does not violate G. L. c. 41, § 81W.

Finally, Homeowners argue that while they may be obligated to execute “any application that may reasonably be required in order to facilitate Grantee’s proposed subdivision of Grantee’s Land and Grantee’s exercise of the Easements granted herein,” it would be unreasonable to require them to sign the Modification Application given Wall Street I and the Planning Board’s denial of Powissett Subdivision Plan 3. Here, however, Homeowners appear to conflate the issues between the two consolidated cases at bar. The Planning Board was obligated to review the merits of Powissett Subdivision Plan 3, a charge independent of Homeowners. Conversely, whether Homeowners are contractually bound to execute the Modification Application is not ultimately dependent upon the conduct of the Planning Board. Had the Planning Board approved Powissett Subdivision Plan 3, Homeowners could not stand behind their defense of unreasonability, and this court is not convinced that the fact that the Planning Board denied Powissett Subdivision Plan 3 makes the Modification Application unreasonble. In light of the foregoing, I find that Homeowners are legally obligated to execute the Modification Application.

Morgan Farm Subdivision 4.

Both the Land Court and the Appeals Court found that Morgan Farm Subdivision 2 and Morgan Farm Subdivision 3 were validly denied by the Planning Board because they required a waiver of the dead-end street provision which the Planning Board had discretion to either grant or deny. The same holds true for Morgan Farm Subdivision 4. As such, the Planning Board’s denial of Morgan Farm Subdivision 4 was legitimate if the Planning Board’s denial of Powissett Subdivision Plan 3 was valid. Conversely, and as the Planning Board acknowledges, if the Planning Board approves the modification of Powissett Subdivision Plan 3, then Morgan Farm Subdivision 4 does not require any waivers from the Rules and Regulations. That said, the core issue in the case at bar is the validity of Powissett Subdivision Plan 3.

Powissett Subdivision Plan 3.

Even though the Easement requires Homeowners to execute the Modification Application (if reasonable), the Easement certainly did not obligate the Planning Board to approve the Modification Application. [Note 17] The only way that the Easement ROW could connect to the Powissett Estates subdivision roads without a waiver request was if such subdivision roads were through streets and not dead-end streets; i.e. if the Connector ROW were a full subdivision road and not an emergency road. Plaintiff attempted to achieve this by means of Powissett Subdivision Plan 3.

At oral argument, the Planning Board acknowledged that the Connector ROW could be physically constructed as a full subdivision road in compliance with the Rules and Regulations. In other words, the Planning Board admits that there is sufficient space on the ground for such construction within the Connector ROW. Plaintiff argues that this acknowledgment requires the Planning Board to approve Powissett Subdivision Plan 3 since such plan does not require a waiver. Plaintiff notes that the denial of Morgan Farm Subdivision 4 states that “[t]he applicant has not demonstrated sufficient cause for the Planning Board to amend the definitive subdivision plan and special permit approvals for Powissett Estates to remove these restrictions and allow for a change in the use and/or construction standard of said right-of-way.” While Plaintiff argues that the past should be ignored and the Planning Board should look at the Connector ROW through a new lens, the Planning Board reasons that Plaintiff is bound by its past actions.

Plaintiff relies on the established standard that a subdivision application that complies with reasonable subdivision rules and regulations cannot be denied. In response, the Planning Board interprets the phrase “so far as apt” within G. L. c. 41, § 81W as conferring discretion upon a reviewing board in context of subdivision modifications. [Note 18] G. L. c. 41, § 81W’s phrase “so far as apt” was interpreted by the Appeals Court in Sergi v. Planning Bd. of Kingston, 60 Mass. App. Ct. 918 (2004), where an abutter sought to annul a subdivision modification under G. L. c. 41, §§ 81BB and 81W on grounds that the modified subdivision plan failed to show various means of access from the subdivision to the plaintiff’s adjoining property. Id. at 919. The Appeals Court found that the abutter’s failure to appeal the original subdivision approval was fatal because the modified plan “did not bear upon the plaintiffs property” and agreed that, in context of G. L. c. 41, § 81W, “the words ‘so far as apt’ apply to the provisions [of Subdivision Control Law] which are relevant to the particular modification . . . .” Id. at 920. While such general guidance is not determinative of the case at bar, it appears inconsistent with Plaintiff’s view that Powissett Subdivision Plan 3 is to be reviewed by the Planning Board with no regard for Powissett Decision 1 or Powissett Decision 2. [Note 19]

The case at bar highlights the competing interests between a municipality and a land owner in context of the subdivision of land. Compare G. L. c. 41, § 81M (“The subdivision control law has been enacted for the purpose of protecting the safety, convenience and welfare of the inhabitants of the cities and towns . . . regulating the laying out and construction of ways in subdivisions providing access to the several lots therein, . . . and ensuring sanitary conditions in subdivisions and in proper cases parks and open areas.”), with Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548 (1975) (“[O]ne is entitled to have a definitive subdivision plan approved unless it is shown to be in conflict with recommendations of the board of health . . . or the reasonable rules and regulations of the planning board.”). While it is true that an application for the subdivision of land may not be denied as a matter of right if such application does not require waivers from the town, the problem for Plaintiff is twofold. First, and as noted by the Appeals Court in reviewing the history of Locus, “[i]t should be evident from what has been said above that the plaintiff is in a highly disadvantageous position to launch a subdivision of the locus.” Wall Street I, 72 Mass. App. Ct. at 849. The court then pointed to the town’s policy “as reflected in the major residential development by-law, . . . not to consider a larger (four or more houses) subdivision that cannot comply with all the board’s rules and regulations,” and noted that Plaintiff’s “cannot build even a short subdivision road that is itself a dead-end road without a waiver.” Id. The Appeals Court expressly acknowledged the power of the Planning Board to set its own standards for town growth in Wall Street I, 72 Mass. App. Ct. at 850, when it stated that

[t]he rights of an easement holder to the full benefit of its easement can rise no higher than the right of a fee holder to the full benefit of its land; yet even the latter is subject, in the context of subdivision control, to the supervening power of a planning board to refuse to approve a subdivision plan that will disrupt the standards for orderly growth of the community expressed in its rules and regulations, the subdivision control law, and other applicable constraints, such as zoning laws, regulating growth.

The second, and more troubling, problem for Plaintiff is that Plaintiff was aware, when it purchased Locus in 2000, that Powissett Decision 1 had already declared the Connector ROW an emergency road and not a through road. [Note 20] It is clear that Plaintiff executed the application for Powissett Plan 2 and failed to appeal Powissett Decision 2. As the Appeals Court pointed out, Powissett Plan 2 “was in effect a consent judgment, agreed to by all parties to the Powissett Estates development, one of which was the plaintiff, together with the conservation commission, the [Planning Board], and the town.” Id. [Note 21] It is this court’s opinion that Plaintiff cannot unilaterally annul its prior agreement with the conservation commission, town, and the Planning Board simply by filing a new, now-compliant subdivision plan. [Note 22] Cf. Matthews v. Planning Bd. of Brewster, 72 Mass. App. Ct. 456 , 463 (2008) (“[I]nterlocking documents [that] are part of a single transaction and are ‘interrelated in purpose,’ must be read together to effectuate the intention of the parties.”) (quoting Striar v. American Med. Intl., Inc., 45 Mass. App. Ct. 87 , 95 (1998)). As a result of the foregoing, I find that the Planning Board did not act in an arbitrary, capricious, or unreasonably manner in denying Morgan Farm Subdivision 4 or Powissett Subdivision Plan 3.

Plaintiff’s Motion for Partial Summary Judgment (relative to the Modification Application) is ALLOWED IN PART. [Note 23] Plaintiff’s Motion for Partial Summary Judgment (relative to the validity of the Planning Board’s denial of Morgan Farm Subdivision 4 and Powissett Subdivision Plan 3) is DENIED.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: September 17, 2009