HARROWBY PROPERTY CO., LTD. vs. DAVID O. DOUGLAS, SUSAN S. SILVA, VIRGINIA C. JONES, LEAH SMITH, EILEEN MALEY and JAMES POWELL, as they constitute the Planning Board of the Town of West Tisbury, and THE PLANNING BOARD OF THE TOWN OF WEST TISBURY

Plaintiff filed its unverified complaint on July 10, 2009, appealing, pursuant to the provisions of G. L. c. 41, § 81BB, a decision (“Planning Board Decision 2”) of Defendant Town of West Tisbury Planning Board (the “Planning Board”) which denied approval of a modification to a subdivision plan. The Planning Board filed its Answer on July 31, 2009. A case management conference was held on September 16, 2009. This court issued a Remand Order (the “Remand Order”) dated October 30, 2009, for the limited purpose of having the Planning Board set forth findings and specific reasons for Planning Board Decision 2. The Planning Board issued a Supplemental Decision (“Planning Board Decision 3”) dated November 23, 2009. Plaintiff filed its First Amended Complaint on December 9, 2009, appealing Planning Board Decision 3. The Planning Board filed its Answer on December 24, 2009.

Plaintiff filed its Motion for Summary Judgment on January 20, 2010, together with supporting memorandum, Statement of Material Undisputed Facts, and Affidavit of Erica Mastrangelo (attorney). On March 1, 2010, the Planning Board filed its Cross-Motion for Summary Judgment, together with supporting memorandum and Affidavit of Simone A. DeSorcy (Board Administrator to the Planning Board). Plaintiff filed its Reply on March 26, 2010, together with Supplemental Affidavit of Richard Gallogly. On April 30, 2010, the Planning Board filed its Reply, together with Motion to Strike the Supplemental Affidavit, and Second Affidavit of Simone A. DeSorcy. Plaintiff filed its Opposition to Motion to Strike on May 10, 2010. A hearing was held on all motions on August 25, 2010, and at that hearing the parties discussed mediation. By letter to this court dated October 13, 2010, the parties reported that mediation would not be productive, and the matter was taken under advisement. A Decision of today’s date (the “Decision) has been rendered. In accordance with the Decision it is:

ORDERED and ADJUDGED that the Planning Board’s Motion to Strike the Supplemental Affidavit and the Plan of Land in West Tisbury, Mass. Prepared for Harrowby Property Co.” dated March 24, 2010 (the “2010 Plan”) is ALLOWED.

ORDERED and ADJUDGED that denying an Application for Approval of Modified Subdivision Plan (the “Modified Subdivision Plan”) because of a common driveway is arbitrary and capricious.

ORDERED and ADJUDGED that the proposed subdivision road (the “Modified Subdivision Road”) is a dead-end street.

ORDERED and ADJUDGED that denying the Modified Subdivision Plan because the Modified Subdivision Road is greater than 500 feet in length is arbitrary and capricious. [Note 1]

ORDERED and ADJUDGED that the Planning Board acted arbitrarily in denying the Modified Subdivision Plan on account of the Modified Subdivision Road not conforming with the letter of The Town of West Tisbury Planning Board Rules and Regulations Governing the Subdivision of Land (the “Rules”) Section 5.1-4. [Note 2]

ORDERED and ADJUDGED that the Planning Board’s denial of the Modified Subdivision Plan on the grounds that a Road Maintenance Agreement did not exist is arbitrary and unreasonable.

ORDERED and ADJUDGED that this matter is REMANDED to the Planning Board to issue a new decision in accordance with this Decision.

By the court. (Sands, J.)