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 the matters were taken under advisement. A decision of today’s date has been issued.

In accordance with that decision it is:

ORDERED and ADJUDGED that the issue of whether Homeowners are obligated to execute Plaintiff’s application on October 31, 2007 (the “Modification Application”) is not moot.

ORDERED and ADJUDGED that the Modification Application for a Second Modification of Definitive Subdivision of Powissett Estates (“Powissett Subdivision Plan 3”) is not barred by issue preclusion.

ORDERED and ADJUDGED that the Modification Application does not violate G. L. c. 41, § 81W.

ORDERED and ADJUDGED that Homeowners are legally obligated to execute the Modification Application.

ORDERED and ADJUDGED that the Planning Board did not act in an arbitrary, capricious, or unreasonably manner in denying Plaintiff’s application for an eleven-lot Definitive Subdivision of Morgan Farm Estates dated December 21, 2007 (“Morgan Farm Subdivision 4”) or Powissett Subdivision Plan 3.

ORDERED and ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment (relative to the Modification Application) is ALLOWED IN PART. [Note 2] 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.

By the court. (Sands, J.)