Home BELLINGHAM RESIDENTIAL #2 REALTY, LLC v. ROLAND R. LAPRADE, BRIAN J. SUTHERLAND, EDWARD W. GUZOWSKI, GLENN C. WOJCIK, THOMAS J. GUERIN, DAVID H. BROWN, and KATE BUYUK, as they are members of the TOWN OF BELLINGHAM PLANNING BOARD and the TOWN OF BELLINGHAM

MISC 322796

January 28, 2009

NORFOLK, ss.

Long, J.

JUDGMENT

This case is plaintiff Bellingham Residential #2 Realty, LLC’s 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 Board’s decision disapproving the plaintiff’s Definitive Subdivision Plan for a twenty-four-lot subdivision in Bellingham. [Note 1] It also appeals, pursuant to G.L. c. 40A, § 17, the Board’s decision denying the plaintiff’s 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 court’s Memorandum and Order on the Plaintiff’s Motion for Summary Judgment of this date, I ALLOW the plaintiff’s motion in part and DENY the plaintiff’s motion in part. Specifically, I find and rule that Bylaw Article IV, § 4300 is invalid and, therefore, the Board’s decision denying the plaintiff’s application for a Major Residential Development special permit is hereby ANNULLED. I also find and rule that the Board’s decision disapproving the plaintiff’s Definitive Subdivision Plan was proper, within its authority, and is thus upheld. [Note 4]

SO ORDERED.

By the court (Long, J.)

Attest:

Deborah J. Patterson, Recorder

Dated: 28 January 2009

FOOTNOTES

[Note 1] The plaintiff has characterized the subdivision as containing twenty-four lots. However, as discussed in the analysis section in the court’s Memorandum and Order on Plaintiff’s Motion for Summary Judgment of this date, the plaintiff’s 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] Bellingham’s 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 plaintiff’s 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).