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 todays date (the Decision) has been rendered. In accordance with the Decision it is:
ORDERED and ADJUDGED that the Planning Boards 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 Boards 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.)
[Note 1] The Planning Board, however, is not without a remedy. If the Planning Board is truly concerned, and articulates its concern with a particular reason, that the safety of the current and future residents of West Tisbury will be endangered by the existence of both the Modified Subdivision Road and the Subdivision Road, the Planning Board is free to impose a condition of approval in the Modified Subdivision Plan requiring Plaintiff to remove or block access to the Subdivision Road.
[Note 2] The Planning Board is not without a remedy in this instance either. If the Planning Board is truly concerned, and articulates its concern with a particular reason, that the safety of the current and future residents of West Tisbury will be endangered by the hammerhead shape of the Modified Subdivision Road, the Planning Board may impose a condition in Planning Board Decision 3 mandating that the closed end of the Modified Subdivision Road have a turnaround with an outside diameter of at least one hundred feet and a property line diameter of at least one hundred and fifteen feet, i.e. strict compliance with Rule 5.1-4.