GOLDEN ACRES DEVELOPMENT CORP. and THEODORE F. PEREZ v. BOARD of WATER COMMISSIONERS of the CITY of WESTFIELD, Lynn Boscher (Chairperson), Carol Berti, Kevin Bowler, Phillip McEwan, Anthony Petrucelli and Randall Racine as the PLANNING BOARD of the CITY OF WESTFIELD, and THE CITY OF WESTFIELD

This matter is before the Court on the Defendant City of Westfield’s Motion for Summary Judgment, filed on December 17, 2009. Consequent to Defendant’s Motion for Summary Judgment, the Plaintiffs, Golden Acres Development C orp. and Theodore Perez, filed a Motion for a Remand on December 23, 2009. In this Motion to Remand, the Plaintiffs seek to have this Court remand the definitive subdivision plan, revised in light of the change in circumstances since filing of this action, to be considered by the Planning Board of the City of Westfield (“Planning Board”) under the ordinances, rules and regulations which were in effect at the time this action was commenced.

The Plaintiffs originally filed their Complaint on January 28, 2003 appealing the Planning Board’s decision, apparently pursuant to G.L. c. 41 § 81BB, to disapprove the Plaintiffs’ subdivision plan known as “Fairway Club Estates” (Count I) and seeking declaratory judgment (Count II). Count II was dismissed by this Court on October 31, 2003 for lack of jurisdiction; Count I persists as the remaining count.

Defendant’s Motion for Summary Judgment was heard on March 16, 2009, and the parties’ respective arguments were taken under advisement by the Court.

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Based on the record as assembled by the parties pursuant to Mass. R. Civ. P. 56 and submitted to the Court, the following facts appear to be without dispute:

1. The Planning Board consists of six (6) members. As of December 17, 2009, only two (2) members of the Planning Board, Phillip McEwan and Anthony Petrucelli, were also members at the time the Plaintiffs’ filed their complaint, January 28, 2003.

2. On September 30, 2002, the Plaintiffs prepared a definitive subdivision plan proposal, entitled “Fairway Club Estates,” for a subdivision of their land in the City of Westfield, Hampden County, Massachusetts (“the City”). Prior to creating this subdivision plan proposal, the Plaintiffs combined both of their contiguous parcels of land into a single subdivision.

3. On October 4, 2002 the Plaintiffs submitted to the Planning Board an application for approval of a definitive plan to subdivide 188.21 acres of land contained within the deeds listed in said application, zoned as rural residential, into 189 residential building lots.

4. Following receipt of the subdivision plan, the Planning Board, in accordance with its rules and regulations, solicited comments from all interested municipal boards and commissions.

5. On November 25, 2002, Daniel Reardon, Director of the City’s Health Department, submitted a letter to the Planning Board stating two concerns: first, the Health Department could not approve the subdivision until soil evaluations of the subdivision were completed. Second, the use of an on-site disposal system within this subdivision would be a design concern; therefore, it would be preferable for the subdivision to tie-in to the city water supply.

6. Sometime prior to January 7, 2003, the Westfield Water Superintendent, Charles Darling, reviewed the Plaintiff’s subdivision plan and advised the Planning Board that the subdivision’s proposed use of on-site waste disposal systems would adversely affect the quality of the municipal drinking water, because of the subdivision’s permeable soil and the fact that the City’s wells draw water from the underlying aquifer.

7. On January 7, 2003, the Planning Board voted 4-0 to disapprove the Plaintiffs’ definitive subdivision plan. Among the stated reasons for disapproval were concerns over the on site septic disposal, the effect on the town water supply, the insufficiently small lot sizes, and the possible adverse effects on the adjacent Chapin Pond dam.

8. On May 7, 2003, Water Superintendent Charles Darling submitted an application to the Massachusetts Department of Environmental Protection requesting its approval of the City’s acquisition, by eminent domain, of a 32 acre parcel, owned by Plaintiff Perez, for the purpose of protecting the town drinking water supply.

9. On June 18, 2003, the Massachusetts Department of Environmental Protection approved the City’s acquisition of a 32 acre parcel of land owned by Plaintiff Perez.

10. On October 30, 2003, the City took by eminent domain a 26.9 acre parcel of land owned by Plaintiff Perez for the amount of Four Hundred Thirty Thousand Dollars ($430,000.00). The parcel taken was a portion of the land that was a part of Plaintiffs’ subdivision for which approval was denied. Specifically, this parcel is in the southeast corner of the Index Sheet of the subdivision plan.

11. As a result of the taking of the Perez land, access to East Mountain Road from Plaintiffs’ definitive subdivision plan was no longer available, thus eliminating one of the two planned points of egress from the subdivision. The taking of the Perez land also resulted in the loss of approximately sixteen (16) lots from the planned subdivision. Consequently, the Plaintiffs’ definitive subdivision plan was no longer representative of the property to be subdivided.

12. The Plaintiffs’ have not submitted a new subdivision plan to the Planning Board since the disapproval on January 7, 2003.

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Standard of Review

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 weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006); Molly A. v. Comm’r of the Dept. Of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

The court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. At 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings [Note 1], depositions, answers to interrogatories, and responses to requests for admissions under rule 36, together with ... affidavits, if any.” Mass. R. Civ. P. 56(c).

In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), because Plaintiffs have failed to submit any evidence beyond allegations and assertions of disputed facts. Therefore, this case is proper for summary judgment.

Planning Board Appeal

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.” The Supreme Judicial Court has interpreted this language to require that a court hearing an appeal pursuant to § 81BB 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).

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 , 23-24 (1977). 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). 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). Therefore, 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. Ap. Ct. 68, 72 (2003).

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Analysis

I. The Westfield Health Department’s Report Did Not Require Disapproval by the Planning Board

Pursuant to G.L. c. 41, § 81U, a planning board, upon receipt of an application for a definitive plan of subdivision, must file a copy with the board of health. [Note 2] The board of health must approve or disapprove the plan, and specific findings must be given to explain a disapproval. If the board of health disapproves and gives specific findings, then the planning board may either modify and approve or disapprove the proposed subdivision. If the planning board disapproves, then it must state in detail the shortcomings of the plan or cite the recommendations given in the board of health’s disapproval.

The law thus stated, its application to the case at hand, according to the Defendant, seems to turn on whether the report from the Director of the City’s Health Department, Daniel Reardon, to the Planning Board acts as a disapproval of Plaintiffs’ proposed subdivision. His report states that the land in question is an environmentally sensitive area, such that the use of on site disposal in the density stated in the plan would be a design concern. Therefore, “[t]he Department can not approve this subdivision, pending the conduct of soil examinations on the parcel. The percolation season opens in Westfield on February 1, 2003.”

This statement seems to be neither a disapproval nor an approval, but rather a neutral explanation that, until soil the percolation season opens and examinations can take place, approval cannot be given because the land is in an environmentally sensitive area. It would seem both hasty and preemptive for a planning board to claim that this statement is a disapproval, and moreover that it is a disapproval that requires the Planning Board to disapprove. If it were considered otherwise, it would establish the rule that an automatic disapproval is required of any definitive subdivision plan that requires soil percolation testing that is brought when the percolation season is closed.

The Defendant argues that this report is a disapproval of the subdivision plan, and further, that this disapproval requires the Planning Board’s disapproval. Even if this report was an explicit disapproval, G.L. c. 41, § 81U states that a planning board, in face of a disapproval by the Health Department, is not required to also disapprove – they “shall modify and approve or shall disapprove such plan” (emphasis added).

Defendant further relies on the holding in Kilpatrick, et al. v. The Planning Board for the Town of Bolyston, et al., 2003 WL 21500555, where the board of health issued a report to the planning board regarding a proposed subdivision; in this report, it articulated concerns about the on site septic system, and stated, “[b]eyond that, we can neither approve, nor deny the application.” Id. At 5. The Defendant then cites to the ruling in Kilpatrick that “it would not require a tortured reading of the report to view it as a disapproval.” Id.

However, the Defendant in her brief failed to note additional facts in the board of health’s report in Kilpatrick that make it distinguishable from the case at hand. First, that “it was the usual practice of the Boylston Board of Health to write letters such as was received in the instant case; i.e. neither approving nor disapproving the plan.” Id.

Second, the board of health in Kilpatrick was making a much more definitive statement about the proposed septic system, “the design employed by the Developer in the Subdivision Plan is unconventional, has no precedent in the Towns of Shrewsbury or Boylston, and is not the only design available to the Developer.” Id. As noted in footnote one on that same page, “the Director of Public Health for the Town of Shrewsbury . . . expressed opinions that the clustering of leach fields . . . in the Proposed Subdivision Plan violates public policy, would circumvent the protective requirements of a “shared system” under Title V, and is an unreasonably dangerous design.” Id. (emphasis added).

In light of these facts, it is understandable that the court in Kilpatrick viewed such a report as a disapproval. Compared to the report in question in the case at hand, i.e. postponing approval or disapproval pending soil testing, it is evident that the ruling in Kilpatrick does not compel the Planning Board to disapprove the Plaintiffs’ proposed subdivision plan based solely on a health report that, on its face, is neither an approval nor a disapproval. However, while the decision is not compelled, the Planning Board is by no means precluded from basing its disapproval of the subdivision plan on the lack of approval from the Health Department.

II. The Planning Board’s Disapproval of Plaintiffs’ Definitive Subdivision Plan is Valid

When a party is appealing the decision of a planning board to disapprove a subdivision plan, the burden of proof is on the appealing party “to show that the planning board acted improperly.” Board of Selectmen of Ayer v. Planning Board of Ayer, 3 Mass. App. Ct. 545 , 548 (1975). If a subdivision plan is in conformance with the subdivision rules and regulations of the board and the recommendations of the board of health, the appealing party must demonstrate that the board has exceeded its authority in denying the plan. Similarly, the burden of proof is on the appealing party when challenging a denial of a waiver by the planning board. Windsor v. Planning Bd. Of Wayland, 26 Mass. App. Ct. 650 , 657 (1988). In the case at bar, Plaintiff has failed to demonstrate that the subdivision plan conforms to all rules and regulations of the Planning Board, and Plaintiff has failed to demonstrate any concrete evidence of inconsistency of denial of waiver. Therefore, Summary Judgment in favor of the Defendant should be and is granted.

Plaintiffs’ memorandum in opposition to Defendant’s Motion for Summary Judgment raises numerous issues regarding the motives of the City, the Planning Board and the water and sewer commissioners; while troubling, these issues are nonetheless irrelevant to the legal issue in the case at bar. For example, the denial by the sewer and water commissioners of Plaintiff’s application for a tie-in to municipal water and sewer, while seemingly unfair, is irrelevant because a separate action appealing that decision was filed and consequently dismissed by the Hampden County Superior Court, and further appeal was denied. The taking of the Perez land by the City may also raise suspicions, but this is not the proper forum to challenge its legitimacy.

Rather, it is the purview of this Court to evaluate Plaintiffs’ claim that the Planning Board exceeded its authority by substantially deviating in applying its rules and regulations. It is worth noting that in a zoning context, when the governmental body presents a valid reason for denial, all other reasons for such denial are immaterial. See S. Volpe & Co., Inc. V. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 (1976). Accordingly, it is enough for the Defendant to merely present one valid reason for denial to compel this Court to accept the validity of the decision. The Defendant has prevailed by submitting the Planning Board’s five page decision listing each reason for disapproval in detail, supported by the Health Department’s report and the affidavit of Water Commissioner Charles Darling.

In its January 7, 2003 disapproval of Plaintiffs’ definitive subdivision plan, the Planning Board lists seven reasons in support of its disapproval of the subdivision plan, each supported by specific findings of fact, or references to specific deficiencies in the subdivision plan. For example, the plan as submitted shows that 181 of 189 (96%) of the proposed lots in the plan are less than the required minimum lot size.

Moreover, Plaintiffs have failed to submit concrete evidence to support their claims that the Planning Board is deviating from its normal application of its rules and regulations. Plaintiffs’ allege that they were denied waivers that are normally granted “as a matter of practice,” and make allegations that the Water and Sewer Commissioners granted town sewer and water access to other developers without the same restrictions and obligations imposed upon the Plaintiffs. However, the Plaintiffs’ have not put forth any evidence to support these allegations. When reviewing a Motion for Summary Judgment, the party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976).

Put simply, the Plaintiffs have done little more than make allegations; more importantly, they have failed to show that the subdivision plan is in conformance with the subdivision rules and regulations of the Planning Board and the recommendations of the Health Department. Therefore, Summary Judgment for the Defendant must be and is granted.

The Planning Board’s disapproval of Plaintiffs’ subdivision proposal thus held valid, the Plaintiffs’ Motion to Remand to Planning Board is denied.

Conclusion

The Plaintiffs’ appeal of the Planning Board’s disapproval lacks evidence to show that there is any issue of material fact that speaks to the validity of the decision. Plaintiffs’ argument relies on allegations of bias, providing examples of water and sewer officials’ alleged bias and questioning the validity of the taking of the Perez land; however, these actions do not speak to the validity of the decision of the Planning Board that cites numerous shortcomings of Plaintiffs’ proposed subdivision plan. Furthermore, this Court finds no reason to remand the case to the Planning Board given the lack of genuine issue of material fact.

For the foregoing reasons, this Court concludes that the Defendant’s Motion for Summary Judgment is ALLOWED, and the Plaintiffs’ Motion to Remand is DENIED.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: June 14, 2010