This matter was initially commenced by plaintiff, S. Tracy Eliades, as Trustee of the Kingsbury Realty Trust, on February 5, 2003, in Land Court Case No. 287351, seeking declaration, pursuant to G.L. c. 231A, that the plaintiffs definitive subdivision plan was constructively approved by the defendant, the Planning Board of the Town of Ayer, as a result of its failure to take final action on the plan within the required statutory time frame. The plaintiff also sought to annul the Planning Boards decision disapproving the subdivision plan on the grounds that the decision was arbitrary, capricious, and in excess of the Planning Boards authority.
On May 23, 2003, the plaintiff filed a second action, Land Court Case No. 290121, seeking declaration, pursuant to G.L. c. 231A, that the Planning Boards rescission of the alleged constructive approval of the subdivision plan is a nullity. On July 14, 2003, the Plaintiff filed, and the Court (Trombly, J.) allowed, an assented-to motion to consolidate the two cases.
On April 30, 2004, plaintiff filed a motion for summary judgment. On September 13, 2004, defendants filed a cross-motion for summary judgment. The motions were argued before the Court on September 22, 2004, and taken under advisement. The Court issued a Decision and Judgment, on May 6, 2005, allowing the plaintiffs motion for summary judgment and denying defendants cross-motion; the Court ruled that the plaintiffs subdivision plan was constructively approved and that, despite the Planning Boards attempt to rescind constructive approval of the plaintiffs definitive plan pursuant to G.L. c. 41, § 81W, mortgages given by plaintiff encumbering the land prevented it from doing so.
On June 13, 2005, defendants filed a motion for relief from judgment and a motion for reconsideration, relating to newly discovered evidence surrounding the good-faith basis of the mortgages. On July 11, 2005, plaintiff filed an opposition to the defendants motions. The motions were argued before the Court on July 14, 2005, and taken under advisement. The Court issued an Order on July 28, 2005, denying the defendants motions.
On August 22, 2005, defendants appealed. The Appeals Court found that the good-faith basis of the mortgages should not have been decided on summary judgment and accordingly reversed the Judgment and remanded the case to the Land Court on November 15, 2006, for further proceedings based on those findings.
On March 1, 2007, the case was before the Court for a status conference. There it was determined that trial would be held on the limited issue of the good-faith basis of the mortgages on the proposed subdivision land. The issues of the propriety of the actions of the Planning Board in their attempts to rescind, modify or amend the plans after constructive approval had taken place, and of whether the Planning Boards decision was arbitrary, capricious or in excess of their authority, would be reserved for future determination.
Trial was held on March 2, 2007; testifying were David J. Clapp, Stephen J. Mullaney, Rosalie Ryan Eliades, and S. Tracy Eliades; seventy-two exhibits were admitted into evidence and chalks from A through Y were marked for identification. On April 2, 2007, both parties filed post-trial briefs. On June 14, 2007, the Court issued a decision ruling that plaintiffs mortgages to the Lowell Five Cent Savings Bank and to the RTR Realty Trust were not made in good-faith and that, therefore, the Planning Board was not precluded from later voting to rescind the constructive approval of the plaintiffs definitive subdivision plan.
On June 25, 2007, plaintiff filed a motion for reconsideration. On July 13, 2007, defendants filed a memorandum in response to the plaintiffs motion. The Court denied the motion on July 2, 2007.
On April 4, 2008, defendants filed a motion for summary judgment on the issue of whether the Planning Board decision to rescind the constructive approval of the definitive subdivision plan exceeded its authority. On May 21, 2008, plaintiff filed an opposition to defendants motion as well as a cross-motion for summary judgment. On June 23, 2008, defendant filed an opposition to the plaintiffs cross-motion and, inter alia, an affidavit of Paul J. Hajec, in support thereof. On July 7, 2008, plaintiffs filed a motion to strike the Hajec Affidavit. On July 9, 2008, defendants filed an opposition to the plaintiffs motion to strike. On July 9, 2008, plaintiffs filed a reply to the defendants opposition to plaintiffs cross-motion. The motions were argued on July 10, 2008, and are the matters presently before the Court.
After reviewing the record before the Court, I find that the following facts are not in dispute:
1. On October 12, 2001, plaintiff granted a mortgage, encumbering the Subdivision Property, to the Lowell Five Cent Savings Bank in the amount of one hundred and seventy thousand ($170,000) dollars.
2. On November 14, 2001, Rosalie T. Ryan, the then Trustee of Kingsbury Realty Trust, submitted to the Planning Board of the Town of Ayers an application for approval of a subdivision plan for a parcel of land in the Town of Ayer, depicted as parcels 13 and 14 on Ayer tax assessors map 4 (the Subdivision Property).
3. Presently, Culver Road is a public street in the Town of Groton. It is two thousand, one hundred feet in length and extends from Route 111/Farmers Road to a dead-end at the Groton/Ayer town line.
4. The nearest and only through-street that intersects Culver Road is Smith Street.
5. The length of Culver Road from Smith Street to the Groton/Ayer town line is one thousand, one hundred (1,100) feet.
6. The Subdivision Plan proposed to extend Culver Street four hundred and eighty-five (485) feet into Ayer and the Kingsbury Subdivision as the subdivisions only means of access. [Note 1]
7. The first subdivision plan proposed to end Culver Road in a cul-de-sac within the Kingsbury Subdivision. The proposed Culver Road extension would not make it a through-street, but maintain its status as a dead-end street.
8. The plan did not show a proposed connection to an existing public water system (a Decision Sketch is attached hereto).
9. Presently, there is a water supply located within four hundred (400) feet of the Proposed Subdivision, on Culver Road in the Town of Groton.
10. At a hearing on January 3, 2002, the Planning Board voted to disapprove the subdivision plan. On January 29, 2002, James Lucchesi, Chairman of the Ayer Planning Board, sent Ms. Ryan a letter stating three reasons for the disapproval of the preliminary plan. These three reasons were:
a. The subdivision plan does not provide adequate access to the development as defined in G.L. c. 41, § 81M. and the Town of Ayer Subdivision Regulations, Purpose Section;
b. The proposed dead-end street extends beyond five hundred feet without a waiver from the Planning Board which violates Section IV.A.4.a of the Town of Ayer Subdivision Regulations; and
c. The subdivision plan does not show a proposed connection to an existing public water system as required in the Town of Ayer Subdivision Regulations, Section IV.C.3.
11. On February 1, 2002, Ms. Ryan, as Trustee of Kingsbury Realty Trust, submitted a second subdivision plan. This second plan did not alter the proposed extension of Culver Street nor did it now show a proposed connection to an existing public water system. Instead, the application was accompanied by a letter from engineer, Stephen J. Mullaney, stating that the boards January 29, 2002 disapproval of the Subdivision Plan was legally incorrect and that the board should reverse that decision. At a hearing on March 4, 2002, the Planning Board voted to disapprove this second plan. On March 21, 2002, Mr. Lucchesi again sent a letter to Ms. Ryan repeating the three reasons stated in the January 29, 2002 disapproval letter.
12. On August 20, 2002 plaintiff, S. Tracy Eliades, having become the Trustee of the Kingsbury Realty Trust, submitted a third Kingsbury Circle subdivision plan (the Subdivision Plan). This third plan again did not alter the proposed extension of Culver Street, nor did it show a proposed connection to an existing public water system. Instead, plaintiff, supported by an affidavit of attorney John F. Gallant, stated that the proposed extension of Culver Street must be measured from the Groton/Ayer town line rather than the Smith Street intersection and that the Planning Board did not have the authority to require a subdivision in the Town of Ayer to connect to the water system in another municipality.
13. On January 9, 2003, the Planning Board voted to disapprove the third subdivision plan. On January 16, 2003, the board issued a certificate of disapproval of the Subdivision Plan, repeating the three reasons stated in the January 29, 2002 and March, 21 2002 disapproval letters.
14. The Planning Board did not timely file the certificate wit the Town Clerk. This Court has previously ruled that as a result, on January 15, 2003, the Subdivision Plan was constructively approved. [Note 2]
15. On February 3, 2003, the Lowell Five Cent Savings Bank modified the terms of the October 12, 2001 Commercial Term Promissory Note executed by plaintiff. This note had not been paid by October 12, 2002. The modification required repayment of the note by December 12, 2003, and reduced the interest to be paid by plaintiff from 8% to 6%. There was no consideration in exchange for the extension.
16. On February 5, 2003, after the expiration of the twenty-day appeal period, plaintiff presented to the Town Clerk a certificate of constructive approval and the a copy of the subdivision plans for endorsement.
17. The Town Clerk did not endorse the certificate or plans.
18. On February 5, 2003, plaintiff granted a mortgage, encumbering the Subdivision Property, to the RTR Realty Trust in the amount of eleven thousand ($11,000) dollars.
19. On February 5, 2003, plaintiff granted a mortgage, encumbering the Subdivision Property, to the Law Office of Gallant & Ervin, LLC.
20. On February 5, 2003, plaintiff granted a mortgage, encumbering the Subdivision Property, to himself, as Trustee of the Orchard Realty Trust, in the amount of fifty thousand ($50,000) dollars.
21. On March 11, 2003, plaintiff executed a guaranty in favor of the Lowell Five Cent Savings Bank, which was secured by a mortgage, encumbering the Subdivision Property. No monetary consideration was paid in exchange for the guarantee and mortgage.
22. On April 16, 2003 and April 23, 2003, the Planning Board caused to be published, notice of a hearing in the Public Spirit, a newspaper of general circulation in the Town of Ayer.
23. On April 14, 2003, the Planning Board sent notice of this hearing to Tracy Eliades, at 30 Country Hollow Road, Haverhill, MA 01832.
24. The Subdivision Plan includes a list of abutters, which was certified by the Board of Assessors of the Town of Ayer. The Abutters are:
a. Fox Meadow Trust;
b. Cowfield Trust; and
c. Tracy Eliades.
25. The Planning Board also sent notice of this hearing by mail, return receipt requested, to Fox Meador[sic] Tr., Cowfield Trust, and Tracy Eliades.
26. At the May 1, 2003 hearing, the Planning Board voted to rescind the constructive approval and to disapprove the Subdivision Plan. On May 5, 2003, the board made a written decision, containing a slightly expanded version of the reasons stated in the three prior disapprovals. [Note 3]
I. PLAINTIFFS MOTION TO STRIKE THE AFFIDAVIT OF PAUL J. HAJEC
As a preliminary matter, plaintiff makes a motion to strike the affidavit of Paul J. Hajec, filed by defendants in support of their opposition to plaintiffs cross-motion for summary judgment. Mr. Hajec is a traffic engineer and transportation consultant; his affidavit concerns whether the proposed extension of Culver Road provides safe or adequate means of vehicular travel. Plaintiff argues that the Mr. Hajec does not have personal knowledge of the Planning Boards decision to rescind the Subdivision Plan and that, although, his evidence may be credible as an expert, it has no relevance to the boards knowledge and reasoning at the time of their decision.
The Hajec affidavit is clearly evidence regarding the safety of the proposed means of access to the subdivision. This is the first stated reason of the Planning Board for rescinding the Subdivision Plan. As previously noted, the Court will not consider the merits of that issue in this decision. Therefore, the controversy over the Hajec affidavit is moot. However, even if the Court were to consider this controversy, the affidavit would be admitted. The Planning Board rescinded the Subdivision Plan based, in part, on their finding that the proposed access would be unsafe. Defendants offer relevant testimony of an expert regarding why the proposed access is unsafe. Although the evidence does not show that the Planning Board was in possession of this specific information at the time it made its decision, it does show that the boards decision was not unreasonable or arbitrary. As this Court is charged with determining whether the Planning Board of the Town of Ayer acted on untenable grounds in deciding to rescind the plaintiffs Subdivision Plan, this evidence is certainly relevant and is, therefore, admissible.
II. MOTION FOR SUMMARY JUDGMENT
Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989).
In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Anderson v. Liberty, 477 U.S. 242, 247-48 (1986). As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment. Id. at 248. In order to determine if a dispute about a material fact is genuine, the court must decide whether [ ] the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party. Id.
With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponents case, or [ ] by demonstrating that proof of that element is unlikely to be forthcoming at trial. Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). However, the party opposing summary judgment [ ] cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment. LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).
When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not [ ] pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts. Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from [ ] pleadings, [Note 4] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with [ ] affidavits, if any [ ]. Mass. R. Civ. P. 56(c).
In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment. Rule 56(c).
When reviewing the decision of a municipal board regarding a subdivision plan, [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. G.L. c. 41, § 81BB; see Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 809 (1981). Thus, if the Court finds any substantial reason given by the planning board for its decision was proper, the action must be affirmed. See Mac-Rich Realty Construction, Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 80-81 (1976). The burden of proof is on the [challenger] (developer) to show that the board exceeded its authority and acted improperly in disapproving the subdivision plan. Mac-Rich Realty Construction, Inc., 4 Mass. App. Ct. at 83.
I. PROCEDURAL REQUIREMENTS
a. Compliance with G.L. c. 41, § 81W
In the instant matter, Plaintiff contends that the town failed to comply with certain statutory procedural requirements for rescinding a definitive plan, pursuant to G.L. c. 41, § 81W. Specifically, plaintiff argues that the Planning Board could not properly rescind the constructive approval of the Subdivision Plan without the Town Clerk first issuing a certified copy of that approval and without the plaintiff first recording the approved Subdivision Plan.
The procedure and timing requirements on board action in the Subdivision Control Law was intended [ ] to set up an orderly procedure for definitive action within stated times, and for notice of that action in offices or record within stated times, so that all concerned may rely upon recorded action or in the absence thereof within such times. Bd. of Selectman of Pembroke v. R. & P. Realty Corp., 348 Mass. 120 , 128 (1964); see G.L. c. 41, § 81V; Kay-Vee Realty Co. v. Town Clerk of Ludlow, 355 Mass. 165 (1969). When a subdivision plan has been approved, either constructively or otherwise, the Town Clerk is obligated under G.L. c. 41, § 81V, to certify the approval and endorse the plan, once the appeal period has expired. 41, § 81V; Kay-Vee Realty Co., 355 Mass. 165 . Under G.L. c. 41, § 81W, no [ ] rescission of the approval of a plan nor change in a plan under this section shall take effect until (1) the plan as originally approved, [ ], [has] been recorded, [ ]. 41, § 81W.
Plaintiffs argument is novel and one that ignores a relevant body of case law which carves out an exception for constructive approval cases to the otherwise strict requirements of § 81W. In Dennis v. Planning Bd. of Winchester, the Appeals Court ruled that a rescission is valid and procedurally proper, even in circumstances where the Town Clerk had not previously issued a Certificate of Constructive Approval, pursuant to G.L. c. 41, § 81V, or the plan had not previously been recorded in the appropriate registry of deeds. 71 Mass. App. Ct. 179 , 182 and 184 (2008).
The reason for this rule is that a planning board must be allowed to correct errors through rescission. Kay-Vee Realty Co., Inc., 355 Mass. at 169-70; Windsor v. Planning Bd. of Wayland, 26 Mass. App. Ct. 650 , 656 (1988); see Vitale v. Planning Bd. of Newburyport, 10 Mass. App. Ct. 483 , 487 (1980). The purpose of the certification and recordation requirements is to provide notice to interested third parties. Without this exception for constructively approved plans, a town would be required to issue a certificate and await recording by the developer of a plan, which the town knows to be erroneous and which the town plans to rescind. Such strict application of § 81W would be unfair to third parties fairly expected to rely on the record and would, thus, defeat the intent of the statute. Moreover, without this exception, the statute would allow a developer to hold up the boards correction of the error indefinitely by delaying application to obtain a Certificate of Constructive Approval from the Town Clerk, again delaying the recording of the subdivision plan. In that time, the developer could seek a good-faith lien against the Subdivision Property which would foreclose the boards authority to rescind altogether. The Subdivision Control Law cannot possibly countenance such a scheme.
b. Notice of Public Hearing
Plaintiff also argues that the Planning Board did not send proper notice of the public hearing at which the board voted to rescind the constructive approval. Specifically, plaintiff argues that the Planning Boards notice contained the wrong date of the Subdivision Plan and that the board failed to send the notice to the owner, mortgage holders, or abutters.
Failure to comply with the requirements of G.L. c. 31, §§ 81T, , 81V, and 81W, to provide appropriate notice for a public hearing prior to vote to rescind a definitive plan, pursuant to § 81W, renders any such decision a nullity. See Young v. Planning Bd. of Chilmark, 402 Mass. 841 , 844 (1988).
Under G.L. c. 41, § 81T, [ ] a public hearing shall be held by the planning board, notice of the time and place of which and of the subject matter, sufficient for identification, shall be given by the planning board. 41, § 81T. In the instant matter, plaintiff argues that because the notice contained the incorrect date of the Subdivision Plan, the notice was deficient, and it, therefore, constituted a procedural violation sufficient to defeat the boards decision made at that meeting. The subject matter as described in that notice otherwise describes both the plan and the Subdivision Property. The notice, as read completely, gives notice sufficient for a reasonable person to identify the subject matter of the hearing. The Court will not allow such an insignificant error to defeat the decision of a Planning Board.
General Laws c. 41, § 81T requires that notice of a hearing be mailed to the owner and to abutters. 41, § 81T. I am unable to understand the plaintiffs dissatisfaction with the notice that was sent to him. The board has shown that service was made by mail, return receipt requested, on plaintiff Tracy Eliades, at his mailing address in Haverhill. Plaintiff appears to allege that the notice was received, instead, by his attorney, John F. Gallant, who has represented the plaintiff throughout this litigation. This allegation is unsubstantiated, and I am not convinced that even if it were true, that it is sufficient to hold the Planning Boards notice improper.
The plaintiffs allegation that the abutters to the Subdivision Property were not notified is unfounded. The Planning Board has presented the Court with return receipts for notices sent to abutters, Fox Meador[sic] Tr., Cowfield Trust, and Tracy Eliades, pursuant to the plaintiffs list of abutting property owners as included with his Subdivision Plan and certified by the Board of Assessors of the Town of Ayer.
The Subdivision Control Law requires that mortgagees consent to a rescission in cases where some or all of the subdivision property has been mortgaged in good-faith and for a valuable consideration. G.L. c. 41, § 81W. This Court has previously determined that the plaintiffs mortgages to the Lowell Five Cent Savings Bank and the RTR Realty Trust did not serve to preclude the Planning Board from rescinding the constructive approval of the Subdivision Plan. At trial, plaintiff did not pursue this issue with respect to the remaining two mortgages, encumbering the property. Accordingly, the Planning Board had no legal obligation to notify the mortgagees of the Subdivision Property about the rescission hearing.
For all the above reasons, I rule that the Planning Board met all procedural requirements in rescinding the plaintiffs Subdivision Plan.
II. COMPLIANCE WITH SECTION IV.A.4.a
As a general rule, a planning board has the power to approve, disapprove, or modify any definitive subdivision plan that does not conform to local subdivision rules and regulations. G.L. c. 41, § 81U. This power is discretionary, and a planning board may waive strict compliance with its rules and regulations [ ] where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law [ ]. G.L. c. 41, § 81R.
Under Section IV.A.4.a of the Subdivision Control Regulations of the Town of Ayer, [d]ead-end streets shall not be longer than five hundred feet [ ]. § IV.A.4.a. Generally, the length of a proposed dead-end street is measured from its intersection with the nearest through-street. The purpose of regulating dead-end streets is out of [ ] concern that the blocking of a dead-end street, as by a fallen tree or an automobile accident, will prevent access to the homes beyond the blockage particularly by fire engines, ambulances, and other emergency equipment. Nahigian v. Lexington, 32 Mass. App. Ct. 517 , 521 n.3 (1992). The farther the terminus of a dead-end street from a through-street, the more likely a blockage will prevent emergency vehicles from reaching residents on the other side. See id.; Federline v. Planning Bd. of Beverly, 33 Mass. App. Ct. 65 , 68-69 (1992); Lakeside Builders, Inc. v Planning Bd. of Franklin, 56 Mass. App. Ct. 842 , 850 (2002).
The Nahigian case is strikingly similar to the instant matter; in Nahigian, plaintiff proposed a subdivision in Lexington with access over an existing dead-end street, known as Tracer Lane. Tracer Lane commenced at an intersection with Trapelo Road in Waltham and the plaintiff proposed an extension. The Trial Court measured the proposed extension of Tracer Lane from its intersection with Trapelo Road in Waltham, rather than the Lexington town line. On appeal, plaintiff argued that the measurement should be taken from the town line. 32 Mass. App. Ct. 517 . The Appeals Court ruled that given the safety concern that underlies the regulation of dead-end street, [ ] it would make no sense to measure the length of a dead-end way other than from the nearest intersecting through street. 32 Mass. App. Ct. at 521 n.3. Accordingly, this rule must apply even if the applicant proposes to extend an existing dead-end street from one municipality into another. See id.
In the instant case, it is undisputed that Culver Road is a dead-end street and that the plaintiffs proposed extension of Culver Road will not alter that fact. It is also undisputed that the proposed extension of Culver Road, as measured from before the cul-de-sac to the nearest through-street is one thousand, five hundred and eighty-five (1,585) feet. This is well over the five hundred foot limitation fixed by the regulation. Accordingly, the Planning Board had the authority to deny the Subdivision Plan and such authority was properly exercised.
Plaintiff argues that although a planning board may take into consideration ways outside a proposed subdivision, it may do so only if it is granted such authority under a properly drawn local subdivision regulation. Under Castle Estate, Inc. v. Park & Planning Bd. of Rockland, a regulation must be [ ] comprehensive, reasonably definite and carefully drafted, so that owners may know in advance what is or may be required of them and what standards and procedures will be applied to them. 423 Mass. 690 , 696 (1996). Plaintiff contends that the use of the term dead-end in Section IV.A.4.a, without further definition, is unclear and that the standard of measurement imposed by the Planning Board on the proposed extension of Culver Road is, therefore, beyond the boards authority.
A dead-end street is defined as a street that is closed at one end. Federline, 33 Mass. App. Ct. at 66 n.2, citing Blacks Law Dictionary, 378 (6th ed. 1990) (defining cul-de-sac as [a] blind alley; a street which is open at one end only. A street closed at one end.); Wheatley v. Planning Bd. of Hingham, 7 Mass. App. Ct. 435 , 450-51 (1979). This common understanding of what constitutes a dead-end street necessitates not only a closed end, but also an opening, by way of an intersection with a through-street. In the case of a dead-end street lying completely within the Town of Ayer, Section IV.A.4.a clearly requires a measurement to be taken from the terminus of the street to the nearest intersection with a through-street. See § IV.A.4.a. There is no reason that this standard should change when the dead-end street lies in two municipalities. This reasoning holds true especially when considered in light of the safety rational of dead-end street regulation. Section IV.A.4.a of the Ayer Subdivision Control Regulations is comprehensive, reasonably definite, and carefully drafted such that a reasonable owner would know what standard will be applied to a dead-end street in a proposed subdivision.
Plaintiff cites two prior Town of Ayer Planning Board decisions, in which the board approved subdivision plans containing proposed dead-end streets, which would similarly violate Section IV.A.4.a. However, it is clear that decisions of municipal boards do not carry precedential weight, operating to obligate future decisions by the board. In fact, under G.L. c. 41, § 81U, a planning board may modify, approve, or disapprove any definitive subdivision plan that does not conform to local subdivision rules and regulations. 41, § 81U. Accordingly, the Planning Board was well within its statutory authority to approve prior violation of the Section IV.A.4.a and to disapprove that of the plaintiffs Subdivision Plan.
Finally, plaintiff argues that the Planning Board exceeded its authority in measuring the proposed Culver Street Extension from the intersection of Culver Street and Smith Street in the Town of Groton, because a town does not have the authority to regulate outside its jurisdiction or to subject a proposed subdivision to the regulation of another jurisdiction. Plaintiff further argues that the G.L. c. 41, § 81M states that the purpose the Subdivision Control Law is [ ] for coordinating the ways in a subdivision with each other and with the public ways in the city or town in which it is located [ ]. 41, § 81M (emphasis added). Plaintiff contends that this inclusive language implicitly excludes the opposite; in other words, the purpose is to coordinate the layout of streets in the town in which the planning board is located and, therefore, not the town in which the planning board is not located. However, plaintiff misconstrues the nature of the Planning Boards decision in the instant case. Here, the board simply took measurement of the proposed Culver Road extension from its terminus in Ayer to the nearest intersection with a through-street, which happens to be with Smith Street in the Town of Groton. The Planning Boards decision in no way subjects plaintiff to the regulation of the Town of Groton, nor does it attempt to regulate in that municipality. The board merely measured the length of that road in order to determine whether it was within the limitations for a dead-end street allowable in the Town of Ayer. Accordingly, I rule that the Planning Boards stated second reason for rescinding the constructive approval of the plaintiffs Subdivision Plan was proper.
Defendants claim further that their decision to rescind the plaintiffs plan based on its failure to provide for a connection to the public water supply within four hundred feet of the proposed subdivision, pursuant to Section IV.C.3 of the Ayer Subdivision Control Regulations was proper. However, as the Court rules herein that one of the substantial reasons given by the board for its rescission is proper, it need not consider this stated third reason.
For the foregoing reasons, this Court concludes that the Planning Board of the Town of Ayer complied with the procedural requirements of G.L. c. 41, §§ 81T, 81W, and 81V in conducting the May 1, 2003 hearing, following which it rescinded the constructive approval of the Subdivision Plan. The board properly published and sent notice to all persons required to receive such notice. This Court further concludes that the Subdivision Plan proposes an extension of Culver Street which would violate Section IV.4.A.a of the Town of Ayer Subdivision Regulation, a regulation limiting the length of dead-end streets in a subdivision to five hundred feet. The proposed extension, as measured from the Smith Street intersection is well over this limit. Given the safety concerns that underlie dead-end street regulation, the Planning Board properly measured the proposed street and rescinded approval of the plaintiffs Subdivision Plan. These being matters of law, the defendants motion for summary judgment is hereby ALLOWED and the plaintiffs motion for summary judgment is DENIED.
Judgment shall issue accordingly.
Charles W. Trombly, Jr.
Dated: January 15, 2009
[Note 1] This measurement is taken from the Groton/Ayer town line to the beginning of the proposed cul-de-sac, but does not include the length of the cul-de-sac, itself.
[Note 2] The Planning Board appealed this judgment on another ground, and prevailed. However, the Appeals Courts decision did not affect the Courts ruling that a constructive approval occurred.
[Note 3] Defendants have intentionally omitted any argument involving the first finding in the Planning Boards rescissioninadequate accessin their present motion for summary judgment, in order to avoid raising an issue of fact rendering the case inappropriate for summary judgment. Instead, defendants rely on other theories of the case, without such disputed fact. Plaintiff raises this issue in its cross motion. However, the Court believes that the matter may be resolved on other grounds. Therefore, for the purposes of this summary judgment decision only, the Court finds the issue of access to be a matter of fact not material to the case and, accordingly, does not consider it further.
[Note 4] A motion for summary judgment can rest in whole or in part on facts set forth in the moving partys pleadings if, but only if, they are conceded in the opposing partys pleadings. Cmty. Natl Bank, 369 Mass. at 557 n.6. It may also rest on the allegations contained in the opposing partys pleadings. G. L. c. 231, § 87 (in any civil action pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them).