PAUL E. LEARY, TRUSTEE OF II PROSPECT ROAD NOMINEE TRUST v. THOMAS M. TUCKER, KAREN FIELD, JOHN MATHIEU, LAURA MCLEAN, and LINDA MOFFATT, as they are and constitute MATTAPOISETT PLANNING BOARD

This action was filed by Paul E. Leary, Trustee of II Prospect Road Nominee Trust (“Plaintiff” or “Leary”), on April 1, 2008 appealing pursuant to G. L. c. 41, § 81BB the March 6, 2008 decision of the defendant Mattapoisett Planning Board (“Board”) denying endorsement of a plan he had submitted to it for Approval Not Required approval. [Note 2] The Mattapoisett Building Inspector had twice previously, on August 3, 2007 and September 13, 2007, denied building permit applications submitted by Plaintiff concerning the same parcel of land, located off Prospect Road in Mattapoisett (“the Property”), basing his denials on Plaintiff’s failure to prove adequate frontage. Plaintiff did not appeal these denials. In addition, the Planning Board had previously denied ANR endorsement to an earlier plan, stating that the driveway used to access the lot “did not meet the requirements for width construction” and ruling that “a conforming lot cannot be created” because it would not comply with Section 3.2.3.4 of the Board’s Rules and Regulations.

On March 3, 2008, Leary's representatives appeared before the Board regarding the ANR application at issue in this case and argued that the October 1, 2007 ruling was erroneous. In the decision being appealed in this action, dated March 6, 2008 and filed with the Town Clerk on March 13, 2008, the Board found that the way in question had “insufficient grade width, grade and construction to serve as an access road for another residence.” The Board added that the driveway is “currently of questionable adequacy to serve as access for existing houses and that any further development would intensify this problem and would be contrary to public health, safety and welfare.”

The defendant answered on April 18, 2008, contending that the Board had acted in good faith and within its lawful authority and discretion in denying endorsement of the plan. A Case Management Conference and several status conferences were held, following which the case was assigned for trial and a site visit. Trial was conducted in Boston on September 22, 2009 and October 20, 2009. The testimony was reported by a certified court reporter. A site visit to the Property was taken with counsel on September 23, 2009. Both sides have submitted post-trial memoranda.

After careful consideration of all the evidence, this Court issued a Decision today, ruling that the decision of the Board refusing to endorse the plan submitted by Leary was proper and that the actions of the board were not arbitrary or capricious. Accordingly, it is

ADJUDGED and ORDERED that the Decision of the Mattapoisett Planning Board, dated March 6, 2008 and filed with the Town Clerk on March 13, 2008, refusing to endorse the plan submitted to it by the Plaintiff for ANR endorsement was warranted and is affirmed. It is further

ADJUDGED and ORDERED that the Board did not exceed its authority or discretion in refusing to endorse the aforementioned plan.

By the Court (Trombly, J.)