S. DAVID GRABER, ARLENE J. GRABER, BURTON JAY POLANSKY, FAY MARCIA POLANSKY, and PENNY ANN TAYLOR v. SHERMAN EPRO, JERALD SAVAGE, GEORGE EICHORN, STEVEN D. MITCHELL, MARK HAUSAMMANN, HERBERT MUSMON, ROBERT O’REGAN, WILLIAM FRANCIS, and PETER BARRON, as they are members of the STOUGHTON ZONING BOARD OF APPEALS;

Plaintiffs, S. David Graber, Arlene J. Graber, Burton Jay Polansky, Fay Marcia Polansky, and Penny Ann Taylor, commenced Land Court Case Number 07 MISC 344259 (Zoning Appeal), on April 2, 2007, as an appeal, pursuant to G.L. c. 40A, § 17, from a decision of the Defendant, the Stoughton Zoning Board of Appeals, granting a variance of the minimum lot frontage requirements of the Town of Stoughton Zoning By-law, concerning a parcel of real property and building, known as and numbered 50 Barnes Road in Stoughton, owned of record by Defendants, Peter Tsinzo and Linda Tsinzo.

On March 19, 2008, Plaintiffs filed Land Court Case Number 08 MISC 375002 (Subdivision Appeal), as an appeal, pursuant to G.L. c. 41, § 81BB, from a decision of the Defendant in that case, the Town of Stoughton Planning Board, approving a subdivision plan dividing 50 Barnes Road into two lots. The Defendant Planning Board answered the Complaint on April 3, 2008.

On July 31, 2009, Plaintiffs filed a Motion for Summary Judgment in each of the two cases. The municipal defendants opposed the motions on September 1, 2009, and filed Cross-Motions to Dismiss or for Summary Judgment in each case. [Note 1] The motions were argued on October 28, 2009, and are the matters presently before the Court. While the cases have not been consolidated, the Court considers them together, here.

After reviewing the record before the court, I find that the following facts are not in dispute:

1. Defendants, Peter Tsinzo and Linda Tsinzo (Tsinzos), are the owners of a parcel of real property and building, known as and numbered 50 Barnes Road in Stoughton (Property). The Property is identified as Lot 31 on Town of Stoughton Assessor’s Plan 91.

2. The Property comprises 178,596.4 square feet of land.

3. The Property is a “pork-chop” shaped lot, consisting of a strip of land, approximately 50 feet wide, extending from the building envelope to Turnpike Street to the west.

4. The Property fronts on Barnes Road to the south. A Decision Sketch is attached.

5. In or about February 1998, title to the Property was held by the heirs of Lola T. Railey.

6. At that time, the Property did not meet the minimum lot frontage requirement of the Town of Stoughton Zoning By-law.

7. The Tsinzos entered into a purchase and sale agreement with the heirs of Ms. Railey, subject to the Tsinzos obtaining a variance of the minimum lot frontage requirement.

8. Subsequently, the heirs of Ms. Railey filed an application with the Town of Stoughton Zoning Board of Appeals, for a variance of the minimum lot frontage requirements of the Town of Stoughton Zoning By-law. On March 5, 1998, the Board of Appeals voted to grant the variance on the condition, among others, that the Property would remain a single lot. The Board filed a written decision with the Town Clerk on March 23, 1998 (1998 Variance). No appeal was taken from this decision.

9. Subsequently, Plaintiffs purchased the Property and constructed a single-family house thereon.

10. The Property is presently located in the Residential-Suburban B (RB) Zoning District of the Town of Stoughton Zoning By-law.

11. The RB Zoning District requires a minimum of 125 feet of lot frontage for a buildable lot.

12. In or about 2006, the Tsinzos applied for two variances of the minimum lot frontage requirement, in order to divide the Property into two lots and construct a second single-family house on the unimproved lot.

13. On February 15, 2007, the Board of Appeals voted to grant the variances on the condition, among others, that the lots not be further subdivided. The Board filed a written decision with the Town Clerk on March 16, 2007 (2007 Variance). Plaintiffs appealed from this decision in Land Court Case Number 07 MISC 344259.

14. Subsequently, the Tsinzos submitted a plan titled “Plan of Land in Stoughton, MA., 50 Barnes Road – Stoughton, MA.” dated October 10, 2007, to the Stoughton Planning Board for subdivision approval.

15. The proposed subdivision divides the Property into two lots.

16. The proposed subdivision adds a cul-de-sac at the end of the cul-de-sac at the end of Barnes Road, as shown on the Decision Sketch.

17. On this plan, Lot 2, which contains the existing house, has 96.45 feet of frontage, while Lot 1 has 132 feet of frontage.

18. On February 28, 2008, the Planning Board voted to approve the subdivision plan. The Board filed a written decision with the Town Clerk, dated March 3, 2008. Plaintiffs appealed from this decision in Land Court Case Number 08 MISC 375002.

19. The Board’s decision waives Section VI of the Land Subdivision Regulations, for the construction of roadways.

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Motion to Dismiss

As an initial matter, in the Subdivision Appeal, Defendants move to dismiss Counts II and III of the Complaint for insufficiency of service of process, pursuant to Mass. R. Civ. P. 12(b)(5), and on the grounds that a writ of certiorari and equitable relief do not lie in an appeal from a planning board decision.

General Laws chapter 41, § 81BB is the exclusive remedy for a person aggrieved by a decision of a planning board concerning a plan of a subdivision of land. 41, § 81BB; Nantucket Land Council, Inc. v. Planning Bd. of Nantucket, 5 Mass. App. Ct. 206 , 212 (1977); see Stefanick v. Planning Bd. of Uxbridge, 39 Mass. App. Ct. 418 (1995). Moreover, certiorari is not available where a party has another avenue of relief. Boston Edison Co. v. Board of Selectmen of Concord, 355 Mass. 79 , 82-84 (1968); Cumberland Farms, Inc. v. Planning Bd. of Bourne, 56 Mass. App. Ct. 605 , 607-608 (2002) (citing St. Botolph Citizens Comm., Inc. v. Boston Redevelopment Auth., 429 Mass. 1 , 7 (1999)). Counts II and III of the Complaint are for declaratory relief, pursuant to G.L. c. 231A, and an action in the nature of a certiorari petition, pursuant to G.L. c. 249, § 4, respectively and, therefore, cannot lie. Accordingly, it is hereby ORDERED that Counts II and III of the Complaint in the Subdivision Appeal are DISMISSED.

In addition, in the Zoning Appeal, Defendants move to dismiss Count II of the Complaint for insufficiency of service of process and lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted, pursuant to Mass. R. Civ. P. 12(b)(1) and (6). The municipal defendant’s brief does not raise the issue of exclusive remedy; however both the municipal defendant and the Tsinzos made that argument as to both Counts II and III, at the hearing on this motion.

Like G.L. c. 41, § 81BB, G.L. c. 40A, § 17 is the exclusive remedy for a person aggrieved by a decision of a permit granting authority. 40A, § 17; Iodice v. Newton, 397 Mass. 329 , 334 (1986); Smith v. Bd. of Appeals of Plymouth, 340 Mass. 230 , 232 (1960); Elder Care Servs., Inc. v. Zoning Bd. of Appeals of Hingham, 17 Mass. App. Ct. 480 , 482 (1984). Counts II and II of the Complaint seek declaratory relief and, therefore, cannot lie.

Accordingly, it is hereby ORDERED that Counts II and III of the Complaint in the Zoning Appeal are DISMISSED.

Insufficiency of Process

Secondly, with regard to the Subdivision Appeal, the Defendant Planning Board moves to dismiss the Complaint for insufficiency of service of process, pursuant to Mass. R. Civ. P. 12(b)(5). [Note 2] While the Planning Board raised this issue initially in its Answer to the Complaint, no separate motion was made until this response to Plaintiffs’ Motion for Summary Judgment. Moreover, it is evident that the Defendant had knowledge of this litigation within the ninety day period, having answered the Complaint in under a month from the date of filing. Accordingly, the defense has been waived.

Agreement for Judgment

At oral arguments, counsel for the Plaintiffs pointed out that the Defendants do not appear to object to the annulment of the 2007 decision of the Board of Appeals and, therefore, requested that the Court annul that decision. Counsel for the Board of Appeals stated that the Board does not actively defend its decision. Counsel for the Tsinzos informed the Court that subsequent to this appeal, they sought to withdraw their 2007 variance application from the Board of Appeals. The Board appropriately did not act on the request because it no longer had jurisdiction over the matter, at that time. Counsel for the Tsinzos stated that they do not object to the Plaintiffs’ request that the 2007 decision of the Board of Appeals be annulled. Accordingly, I rule that the decision of the Zoning Board of Appeals is ANNULLED. This forecloses the Zoning Appeal, leaving only Count I of the Subdivision Appeal to be decided.

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. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l 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 viewing the record before it, the court reviews “the evidence in the light most favorable to the nonmoving party.” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

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.

General Laws chapter 41, § 81BB provides in relevant part that “[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.” This language tracks the language of G.L. c. 40A, § 17. The Supreme Judicial Court has interpreted this language to require that a court hearing an appeal pursuant to § 81 BB apply a combination of de novo review and deference to the judgment of the municipal authority. Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 479 (1955); Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). The Trial Court must review the evidence and make findings of fact without deference to the board’s findings. Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953) (and case cited); Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987); see G.L. c. 41, § 81BB. In this review, the court is not limited to the evidence that was before the board. Bicknell Realty Co., 330 Mass. at 679; Marr v. Back Bay Architectural Cmm’n, 32 Mass. App. Ct. 962 , 963 (1992); Crittenton Hastings House of the Florence Crittenton League v. Bd. of Appeal of Boston, 25 Mass. App. Ct. 704 , 713-24 (1988).

However, this review is circumscribed by the requirement to defer to the judgment of the municipal board. Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 23024 (1977); Mac-Rich realty Constr. V. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 80-81 (1976); Fairbairn, 5 Mass. App. Ct. at 173. The court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing a § 81BB appeal is not authorized to make administrative decisions. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979). If reasonable minds may differ on the conclusion to be drawn from the evidence, the board’s judgment is controlling. ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). However, in limited circumstances, the Trial Court may substitute its judgment for that of the board’s, where “justice and equity” require. G.L. c. 41, § 81BB; Pendergast, 331 Mass. at 558.

The court may overturn the board’s decision only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); accord MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246. Moreover, where the court’s findings of fact support any rational basis for the municipal board’s decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.

Plaintiffs first argue that the decision of the Planning Board was procedurally improper. Specifically, Plaintiffs state that there is no record of a Planning Board vote or a final written decision. Instead, Plaintiffs point out that there is only a letter from the Planning Board to the Town Clerk evidencing the proceedings. I find and rule that this letter is a written decision and that there is no requirement that the decision contain a record of the vote.

Plaintiffs argue secondly that the condition of the 1998 Variance is binding on the Planning Board and that, therefore, the decision of the Planning Board to approve the subdivision of the Property was improper. The 1998 Variance was conditioned on the Property remaining a single lot. As agreed by the parties, the 2007 Variance, which might have removed this condition, was annulled. Accordingly, the condition of the 1998 Variance remains effective. General Laws chapter 41, § 81Q provides, in relevant part, that “no rule or regulation [of a planning board] … shall be inconsistent with the regulations and requirements of any other municipal board acting within its jurisdiction.” It follows that a planning board lacks authority to alter the terms of a variance granted by the permit granting authority. 41, § 81Q; Silva v. Planning Bd. of Somerset, 34 Mass. App. Ct. 339 , 344-45 (1993); see G.L. c. 41, § 81M; Wyman v. Zoning Board of Appeals of Grafton. 47 Mass. App. Ct. 635 , 637 (1999) (conditions imposed by the permit granting authority on a variance or special permit have the effect of ordinance or by-law, under which they are promulgated; “they are part of the zoning law to be enforced.”). Accordingly, I rule that the condition of the 1998 Variance is binding on the Planning Board.

Conclusion

For the foregoing reasons, this Court concludes that the Planning Board exceeded its authority when it approved the subdivision plan of the Property. The condition of the 1998 Variance remains in effect and has the effect of a provision of the Zoning By-law, which the Planning Board has no authority to waive. Accordingly, the Plaintiffs’ Motion for Summary Judgment is ALLOWED IN PART and the Defendant Planning Board’s Motion to Dismiss or for Summary Judgment is DENIED IN PART. The Defendant Tsinzos’ Motion for Summary Judgment is DENIED.

Judgments to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: January 7, 2010