MARC J. GARRETT, MALCOLM A. MACGREGOR, LARRY ROSENBLUM, PAUL F. MCALDUFF, and WILLIAM S. WENNERBERG III, as members of the PLYMOUTH PLANNING BOARD vs. PETER CONNER, DAVID PECK, MICHAEL BUSTER MAIN, EDWARD C. CONROY, and RYAN J. MATTHEWS, as members of the PLYMOUTH ZONING BOARD OF APPEALS, and SUNNA, LLC

Plaintiff Plymouth Planning Board (the “Planning Board”) filed its unverified Complaint on October 27, 2009, appealing pursuant to G. L. c. 40A, § 17 a decision of Defendant Plymouth Zoning Board of Appeals (the “ZBA”) approving a zoning permit application filed by Defendant Sunna, LLC (“Sunna”) to construct a car dealership on Sunna’s property located at 9 Long Pond Road, Plymouth (“Locus”). On November 19, 2009, the ZBA filed a Motion to Strike Appearance of Counsel for the Planning Board and Dismiss Complaint. The Planning Board filed its Opposition to the Motion to Dismiss on December 14, 2009. [Note 1] A hearing was held on the motion on December 22, 2009, and continued to the case management conference which took place on December 30, 2009. At such time the motion was taken under advisement.

The following facts are not in dispute:

1. On June 9, 2009, Sunna filed a zoning permit application with the Plymouth Director of Inspectional Services (“DIS”) to construct a car dealership on Locus. On July 1, 2009, the DIS denied the application (the “DIS Decision”).

2. On July 29, 2009, Sunna filed an appeal of the DIS Decision to the ZBA. As part of such appeal, the Planning Board recommended that the ZBA uphold the DIS Decision. On September 30, 2009, the ZBA voted to overturn the DIS Decision (the “ZBA Decision”).

3. On October 27, 2009, the Planning Board appealed the ZBA Decision to this court. By Affidavit dated December 9, 2009, and filed with this court on December 14, 2009, Francis J. Veale, Jr. stated that “I am representing the Plymouth Planning Board pro bono in this action.”

4. Pursuant to G. L. c. 4, § 7, the “chief executive officer,” in context of “the operation of municipal governments,” “shall include the mayor in a city and the board of selectmen in a town unless some other municipal office is designated to be the chief executive officer under the provisions of a local charter.” Section 3-2-1 of the Town of Plymouth Charter (the “Charter”) states that “[t]he Board of Selectmen shall be the chief executive body of the town.”

5. Section 3-2-6 of the Charter states that “[t]he Board of Selectmen shall be responsible, through the Town Manager, for the efficient and orderly operation of all agencies of the town except those under the direction of another elected town agency.” [Note 2]

6. Section 3-3-1 of the Charter states that “The Board of Selectmen shall appoint . . . town counsel . . . except as otherwise provided in this Charter and/or the town by-laws.”

7. Section 3-14-5 of the Charter states that “[t]he Planning Board shall make recommendations to . . . the Board of Selectmen on all matters concerning the planning of the physical, environmental, community, and economic development of the town as prescribed by general law, this Charter, and applicable town by-laws . . . .”

8. At a meeting on December 29, 2009, the Plymouth Board of Selectmen (the “Board of Selectmen”) voted unanimously (the “Board of Selectmen Vote”) “to deny the request of the Planning Board for permission to retain counsel, pro bono or otherwise, for the purpose of appealing the [ZBA Decision].”

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The ZBA argues that the Planning Board has not been authorized by the Board of Selectmen to initiate this action or to retain counsel in this action, and relies on the Board of Selectmen Vote. The ZBA cites Board of Public Works of Wellesley v. Board of Selectmen of Wellesley, 377 Mass. 621 , 624 (1979), which states,

It is conventional learning that a municipal department is not permitted to bring suit for the town without specific authorization from the town or from agents entitled to act for it - unless, indeed, there is governing legislation conferring the power on the department. The rule serves to prevent confusion or conflict in the direction and management of municipal litigation.

See O’Reilly v. Scituate, 328 Mass. 154 , 155 (1951) (“In the absence of legislative authority, it is settled that a department of a city or town has no authority to employ counsel.”). [Note 3]

As evidence that it has standing to bring this action, the Planning Board relies on G. L. c. 40A, § 17, which states that

[a]ny person aggrieved by a decision of the board of appeals . . . or any municipal officer or board may appeal to the land court department . . . by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk.

The ZBA responds that the third paragraph of this statute states that “[a] city or town may provide any officer or board of such city or town with independent legal counsel for appealing, as provided in this section, a decision of a board of appeals . . .” and argues that the Town did not do this. The Planning Board argues that where it hired its own attorney pro bono, such hiring did not affect the Town financially. This position was recently commented on in Twenty Wayland, LLC v. Wayland Historic District Commission, Middlesex Superior Court, Civil Action No. 2009-02967 (November 17, 2009) (Kern, J.), which was upheld by a single justice of the Massachusetts Appeals Court on December 21, 2009. In that case, the Appeals Court pointed out that “extraordinary circumstances” prevailed. [Note 4] In the case at bar, there are no “extraordinary circumstances,” as the ZBA has counsel hired by the Board of Selectmen, and the Planning Board, which by Charter is authorized to report to the Board of Selectmen in an advisory capacity, has hired its own counsel in direct violation of the Board of Selectmen Vote.

As a result of the foregoing, this court ALLOWS the ZBA’s Motion to Strike Appearance of Counsel for the Planning Board and Dismiss Complaint.

Judgment to enter accordingly.

Alexander H. Sands III

Justice

Dated: January 7, 2010