This case is plaintiff Bellingham Residential #2 Realty, LLCs appeal from two decisions of the defendant Town of Bellingham Planning Board (the Board). The plaintiff first appeals, pursuant to G.L. c. 41, § 81BB, the Boards decision disapproving the plaintiffs Definitive Subdivision Plan for a twenty-four-lot subdivision in Bellingham. [Note 1] It also appeals, pursuant to G.L. c. 40A, § 17, the Boards decision denying the plaintiffs application for a Major Residential Development special permit. [Note 2] Finally, the plaintiff seeks a declaratory judgment (pursuant to G.L. c. 231A, §1, G.L. c. 240, § 14A, and G.L. c. 185, § 1(j1/2)) that the Town of Bellingham Code of By-Laws Division II Zoning (the Bylaw) Article IV, § 4300 is invalid.
The plaintiff has filed a motion for partial summary judgment. [Note 3] For the reasons set forth in the courts Memorandum and Order on the Plaintiffs Motion for Summary Judgment of this date, I ALLOW the plaintiffs motion in part and DENY the plaintiffs motion in part. Specifically, I find and rule that Bylaw Article IV, § 4300 is invalid and, therefore, the Boards decision denying the plaintiffs application for a Major Residential Development special permit is hereby ANNULLED. I also find and rule that the Boards decision disapproving the plaintiffs Definitive Subdivision Plan was proper, within its authority, and is thus upheld. [Note 4]
By the court (Long, J.)
Deborah J. Patterson, Recorder
Dated: 28 January 2009
[Note 1] The plaintiff has characterized the subdivision as containing twenty-four lots. However, as discussed in the analysis section in the courts Memorandum and Order on Plaintiffs Motion for Summary Judgment of this date, the plaintiffs submissions clearly show the property as containing twenty-five lots. The definition of a lot in G.L. c. 41, § 81L also indicates that the remaining land would be a lot of the proposed subdivision.
[Note 2] Bellinghams zoning bylaw requires a special permit for Major Residential Developments: subdivisions for either the [d]evelopment of ten or more dwelling units on a single lot, or [o]ne or more divisions of land (whether or not a subdivision requiring Planning Board approval) that would cumulatively result in an increase by ten or more lots (excluding any restricted from residential use) above the number existing twenty-four months earlier on a parcel or a set of contiguous parcels which were in common ownership as of October 10, 2001, except that if each resulting lot has both lot area and frontage at least 50% greater than that required under Section 2600 Intensity of Use Schedule the land division shall not be considered to be a Major Residential Development.
Town of Bellingham Massachusetts Code of By-laws Division II Zoning Article V.
[Note 3] Although the motion is framed as one for partial summary judgment, the plaintiffs memorandum and the relief it seeks appear to seek summary judgment on all counts.
[Note 4] Although the defendants did not file a cross-motion for summary judgment, [s]ummary judgment, when appropriate, may be rendered against the moving party. Mass. R. Civ. P. 56(c).