Plaintiff Donald J. Piquette filed his unverified complaint on March 15, 2010, appealing, pursuant to the provisions of G. L. c. 41, § 81BB, Defendant Town of Granby Planning Boards (the Planning Board) denial of Plaintiffs approval not required plan (the ANR Plan) pertaining to property located at 288 East Street in Granby, Massachusetts (Locus). Defendants the Town, the Planning Board, and the Board of Selectmen filed their Answer on April 2, 2010. A case management conference was held on April 28, 2010. Plaintiff filed his Motion for Summary Judgment on May 25, 2010, together with supporting memorandum. The Town and the Planning Board filed their Opposition on June 28, 2010. Plaintiff filed his Rebuttal on July 9, 2010. A hearing was held on the motion on October 13, 2010, and the matter was taken under advisement.
I find the following material facts are not in dispute:
1. Locus contains approximately 8.32124 acres (362,473 square feet) of land. Such land has 149.96 feet of frontage on East State Street, a public way. Locus is zoned single family residential (RS) under the Bylaws of the Town of Granby (the Bylaws).
2. Under Table 2 of the Bylaws, Locus is classified as a Single Family Estate Lot because it contains at least 80,000 square feet and has frontage of at least forty feet. In an RS district, a lot that is not a Single Family Estate Lot requires a minimum lot size of 40,000 square feet and a minimum frontage of 150 feet.
3. Section 5.41 of the Bylaws states that [n]o more than two (2) estate lots may be adjacent to each other at the street line.
4. On February 8, 2010, Plaintiff submitted the ANR Plan to the Planning Board. The ANR Plan, dated January 14, 2010, and prepared by Durkee, White, Towne and Chapdelaine, created three lots: Lot A-1 contains 4.08456 acres (177,924 square feet) and has 50.74 feet of frontage on East State Street; Lot A-2 contains 4.18782 acres (182,421 square feet) and has frontage of 50.55 feet on East State Street; and Lot A-3 contains .04886 acres (2,128 square feet) and has frontage of 48.67 feet on East State Street. Lot A-3 is located between Lot A-1 and Lot A-2. The ANR Plan states that Lot 3-A is not a building lot. [Note 2]
5. The lot immediately adjacent to Lot A-1 on the east is a Single Family Estate Lot owned by another party.
6. On February 23, 2010, the Planning Board voted to deny (the Denial) the ANR Plan. The Denial states that the Planning Board reached its decision [a]s a result of its review and based on the legal opinion of Attorney David J. Martel [the Martel Letter]. Attached to the Denial is a copy of the Martel Letter, which states that the ANR Plan does not qualify for ANR endorsement because Lot A-3 does not meet the minimum frontage or minimum lot size requirements for either a Single Family Estate Lot or a regular residential lot, and as a result the lots shown on the ANR Plan require subdivision approval.
Plaintiff argues that the ANR Plan is valid because Lot A-3 is labeled as a non-buildable lot and as a result does not need to meet the requirements of a lot as defined in the subdivision statute. The Planning Board argues that the ANR Plan is not valid because not all the lots shown on the ANR Plan meet the requirements of a lot. Plaintiff also argues that the Planning Board is guilty of bad faith in its Denial. I shall examine each issue in turn.
A. The ANR Plan.
G. L. c. 41, § 81P states that
any person wishing to cause to be recorded a plan of land situated in a city or town in which the subdivision control law is in effect, who believes that his plan does not require approval under the subdivision control law, may submit his plan to the planning board of such city or town [for endorsement] . . . . Such endorsement shall not be withheld unless such plan shows a subdivision.
G. L. c. 41, § 81L defines a subdivision as
the division of a tract of land into two or more lots . . . provided, however, that the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision within the meaning of the subdivision control law if, at the time that it is made, every lot within the tract so divided has frontage on (a) a public way . . . . Such frontage shall be of at least such distance as is then required by zoning . . . for erection of a building on such lot, and if no distance is so required, such frontage shall be of at least twenty feet.
G. L. c. 41, § 81L defines lot as an area of land in one ownership, with definite boundaries, used, or available for use, as the site of one or more buildings.
The Planning Board argues that the ANR Plan shows a subdivision because Lot A-3 does not meet the frontage and lot size requirements for a lot in an RS zone. As a result, Lot A-3 cannot separate Lot A-1 and Lot A-2, which would then leave three Single Family Estate Lots adjacent to each other in violation of Section 5.41 of the Bylaws. The ANR Plan shows a division of Plaintiffs property into three lots. One of the lots (A-3) does not have adequate frontage on a public way as required by the Bylaws. Lot A-3, however, is labeled on the ANR Plan as not a building lot, and as a result does not fall under the definition of a lot in the subdivision statute as an area of land . . . used, or available for use, as the site of one or more buildings. In Bloom v. Planning Bd. of Brookline, 346 Mass. 278 , 283-84 (1963), the Supreme Judicial Court stated that
We construe lot for purposes of the definition of subdivision in § 81L in the terms of the definition of lot, that is, an area used, or available for use, as the site of one or more buildings . . . the owners have recorded and acted under a plan which, with its indorsement, shows that lot B is not an area which, in the absence of further zoning action, can be built on. Their only right to act under the plan is on the construction that it is not a plan of a subdivision because of the anomalous character of lot B. In effect they have recorded a plan which disavows any claim of existing right to use lot B as a zoning by-law lot. [Note 3]
As a result of the foregoing, I find that the ANR Plan shows a three-lot division of land in which two lots meet the dimensional requirements of a valid lot under the Bylaws and the requirements for an exception to the subdivision statute pursuant to G. L. c. 41, § 81L, and the third lot, because it is non-buildable, also meets the requirements for an exception to the subdivision statute. [Note 4] Since the ANR Plan does not show a subdivision, I find that the ANR endorsement cannot be withheld from the ANR Plan. I remand this matter to the Planning Board an endorsement of the ANR Plan.
As a result of the foregoing, Lot A-3 separates Lot A-1 and Lot A-2 and prevents them from being adjoining Single Family Estate Lot parcels. Consequently, I find that there is no violation of Section 5.41 of the Bylaws. [Note 5]
B. Bad Faith.
Plaintiff argues that the Planning Board is guilty of bad faith or malice in issuing the Denial. The summary judgment record, however, does not disclose any evidence of malice or bad faith. The Denial relies on the Martel Letter, which states that my opinion is based on my interpretation of the definition of subdivision . . . . This opinion, while erroneous, does not show any basis in bad faith or malice. [Note 6] As a result, I cannot find any evidence of bad faith or malice on behalf of the Planning Board.
As a result of the foregoing, I ALLOW IN PART Plaintiffs Motion for Summary Judgment (with respect to the validity of the ANR Plan) and DENIED IN PART (with respect to the issue of bad faith of the Planning Board).
Judgment to enter accordingly.
Alexander H. Sands, III
Dated: November 5, 2010
[Note 1] Plaintiff originally named as a Defendant Mary McDowell, Mark Bail and Wayne Tack, Sr. as they comprise the Granby Board of Selectmen (the Board of Selectmen), but filed a Motion to Voluntarily Dismiss them as a Defendant on May 25, 2010. It is unclear as to why Plaintiff named the Town of Granby (the Town) as a Defendant.
[Note 2] None of the parties makes a distinction between the designation of the lot as A-3 on the lot itself and 3-A on the notation in the ANR Plan.
[Note 3] See also Cricones v. Planning Bd. of Dracut, 39 Mass. App. Ct. 264 (1995). The Planning Board appears to focus on the fact that Bloom and Cricones involve the division of land into one buildable lot, thus not meeting the definition of a subdivision as the division of land into two or more lots. The case at bar, however, involves the division of land into two buildable lots, each of which meets the requirements of § 81L as an exception to the subdivision requirement, i.e. a lot with adequate frontage on a public way. The Planning Board also cites Seguin v. Planning Bd. of Upton, 33 Mass. App. Ct. 374 (1992), where the Appeals Court found a subdivision where one of the lots did not meet the requirements of § 81L. Cricones, however, points out that Seguin
treats a plan showing a division of land into two parcels, one of which did not meet the frontage requirement of the applicable zoning by-law, as showing a subdivision and thus requiring planning board approval. Apparently, nothing on the submitted plan indicated that the parcels could not be used for building, while in the case before us there are clear statements on the face of the plan that two of the parcels are not buildable. Cricones, 39 Mass. App. Ct. at 268, n. 5.
[Note 4] The Planning Board also argues illusory access if the ANR Plan is valid, as discussed in Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 (1978). There is nothing in the summary judgment record, however, to suggest that the access to any of the ANR lots in the case at bar is illusory.
[Note 5] The Planning Board argues that the intent of the Bylaws is thwarted by the ANR Plan. There is no evidence of this in the summary judgment record, specifically the intent of Section 5.41. Moreover, it would appear that the Planning Boards argument that the purpose of the Bylaws was to prohibit contiguous access driveways is not thwarted, as Lot A-3 is not a buildable lot and cannot be the location for another driveway.
[Note 6] The fact that the Planning Board argues that the creation of Lot A-3 is a ruse does not give any additional weight to Plaintiffs arguments.