MISC 09-395547

May 2, 2011

DUKES, ss.

Long, J.




These cases present a common, dispositive issue, also present in another proceeding in this court. See Ridgeley Management Corp. v. Planning Bd. of the Town of Gosnold, et al., Land Ct. Case No. 09 MISC. 394288 (CWT) (“Ridgeley”). Each of these cases, as did Ridgeley, involves the submission of a preliminary subdivision plan to the Gosnold Planning Board, which approved them, and then submission of a definitive subdivision plan to that same board which returned them to the plaintiffs without taking any action. The board did so based on its contention that it was without jurisdiction to act on the definitive plans because it had not adopted rules and regulations pursuant to the subdivision control law, G. L. c. 41, §§ 81N and 81Q, at that time. It has since adopted such rules and regulations, mooting plaintiffs’ request for a writ of mandamus directing the board to do so.

Plaintiffs claim that the board was wrong to return their definitive plans without action and request an order (1) directing the board to approve those plans, in the form submitted, “in view of the absence of any regulations,” (2) declaring that the land shown on those plans is entitled to “a zoning process freeze pursuant to Chapter 40A, Section 6, and [thus] subject [only to] the zoning in effect as of the date of the filing of their Preliminary Subdivision Plan[s]”, and (3) finding and declaring that the land is “entitled to a Board of Health’s regulations freeze pursuant to Chapter 111, Section 127(p) and is [is thus] subject to the regulations in effect on the date of filing of plaintiff[s’] Preliminary Subdivision Plan.” Complaint in 10 MISC. 395547 at 5 (Mar. 20, 2009). [Note 1]

The dispute turns on the proper interpretation of G.L. c. 41, § 81N and, more specifically, the “effective date” of the subdivision control law in a municipality. Is it when a town “establishes a planning board…” (the plaintiffs’ position) or when that board “shall have notified the register of deeds and the recorder of the land court that the city or town has accepted the provisions of the subdivision control law and that the planning board has adopted its rules and regulations…” (the defendants’). G.L. c. 41, §81N. For the reasons set forth below, and in accordance with my colleague’s decision in Ridgeley, 19 LCR 172 (2011) (Trombly, J.), I find and rule that the defendants’ position is correct. Defendants’ motion for judgment on the pleadings is thus ALLOWED.

The Standard of Review

Motions for judgment on the pleadings are governed by Mass. R. Civ. P. 12(c). “A defendant’s rule 12(c) motion is actually a motion to dismiss that argues that the complaint fails to state a claim upon which relief can be granted.” Jarosz v. Palmer, 436 Mass. 526 , 529 (2002) (internal citations and quotations omitted). Thus, in ruling on the motion, the factual allegations of the complaint, as well as all reasonable inferences that may be drawn from those allegations, are taken as true. See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004); Fairneny v. Savogran Co., 422 Mass. 469 , 470 (1996); Eyal v. Helen Broadcasting Corp., 411 Mass. 426 , 429 (1991). Documents either attached to or referenced in the complaint may also be considered, as well as facts and documents of which judicial notice may be taken. [Note 2] If those documents differ from the allegations, the documents control. [Note 3] The court then “looks beyond the conclusory allegations in the complaint and focuses on whether the factual allegations plausibly suggest an entitlement to relief.” Curtis v Herb Chambers I-95, Inc., 458 Mass. 674 , 676 (2011) (internal citations and quotations omitted).

The Dispositive Facts

As the pleadings and associated documents show, there is no dispute on the following facts:


As noted above, this case turns on the proper interpretation of G.L. c. 41 §81N which provides, in relevant part, as follows:

Except as provided in section eighty-one EE, the subdivision control law shall be in effect in every city, except Boston, and every town, which prior to the first day of January, nineteen hundred and fifty-four, established a planning board as defined in section eighty-one L, or which after said date establishes a planning board under section eighty-one A unless such city or town by vote of its city council or town meeting at the time of establishment of such board shall vote not to accept the provisions of the subdivision control law……The subdivision control law, however, shall not become effective in any city or town in which it was not in effect on the first day of January, nineteen hundred and fifty-four, until [1] the planning board of such city or town shall have notified the register of deeds and the recorder of the land court that the city or town has accepted the provisions of the subdivision control law and [2] that the planning board has adopted its rules and regulations as provided in section eighty-one Q and shall have furnished the said register and recorder with a copy of the vote of the city council or town meeting under which the provisions of the subdivision control law were accepted in such city or town, certified by the city or town clerk, and a copy of such rules and regulations certified by said clerk.

G.L. c. 41 §81N (emphasis added). “Our primary duty in interpreting a statute is to effectuate the intent of the Legislature in enacting it. We begin with the language of the statute, as the principal source of insight into legislative intent. Where the words are plain and unambiguous in their meaning, we view them as conclusive as to legislative intent.” Water Dep’t of Fairhaven v. Dep’t of Environmental Protection, 455 Mass. 740 , 744 (2010) (internal quotations and citations omitted). See also Martha’s Vineyard Land Bank Comm’n v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 28 (2004) (courts constrained to follow “plain wording” of statute “so long as its application would not lead to an absurd result”). Here, the statute is plain and unambiguous. In municipalities that did not establish a planning board prior to January 1, 1954, the subdivision control law will not “become effective” until the planning board has adopted rules and regulations in accordance with G.L. c. 41 § 81Q. It is undisputed that the Gosnold board was not established until May 2000, and undisputed that the board did not adopt rules and regulations and file them with the registry and recorder of this court until November/December 2009, a year after the plaintiffs’ preliminary plans were submitted. As a result, I find, as did Ridgeley before me, that the subdivision control law had not “become effective” in Gosnold prior to the filing of the plaintiffs’ plans and thus that the board had no authority to act on plaintiffs’ plans at the time of their filing.

This result is neither absurd nor unfair. It is not absurd because, without regulations, there are no standards by which the board can review submitted plans. It is not unfair because the plaintiffs could have brought their mandamus action much sooner, forcing the board to adopt regulations before the zoning change.

The plaintiffs argue that the board should be estopped from taking this position, pointing to the board’s endorsements of plans from the 1990’s to the time of these submissions “approval not required.” But past mistakes do not bind the board’s future actions. “The doctrine of estoppel is generally not applied to the government’s exercise of its public duties and is not applied where to do so would frustrate a policy intended to protect the public interest.” Highland Tap of Boston, Inc. v. Comm’r of Consumer Affairs & Lic. of Boston, 33 Mass. App. Ct. 559 , 568 (1992) (internal quotations and citations omitted). See also Del Gallo v. Sec’y of the Commonwealth, 442 Mass. 1032 , 1034 (2004) (rescript) (same). Here, the application of estoppel would clearly be contrary to the public interest. If the board were obligated to act on the plans, it would be compelled to approve them, regardless of whether the proposed improvements are appropriate, since there are no regulations imposing any standards for improvement. As the board pointed out in its brief, “not only would such approval give the lots shown on the plans protected status, but it would mean that the town could never again review the adequacy of the ways shown on any of the plans despite the fact that the plaintiffs have given the board no information about the roads, and propose no improvements to the roads.” Defendant’s Memorandum in Support of Their Motion for Judgment on the Pleadings at 6 (Jan. 22, 2010). This is because, under G.L. c. 41 § 81C, “the number, shape and size of the lots shown on a plan so approved may, from time to time, be changed without action by the board, providing every lot so changed shall have frontage on a public way or way shown on a plan approved in accordance with the subdivision control law.”


For the foregoing reasons, I find and rule that the subdivision control law had not “become effective” in the town of Gosnold prior to the filing of the plaintiffs’ plans and, accordingly, the board had no authority to act on those plans at the time of their filing. The defendants’ motion for judgment on the pleadings is thus ALLOWED and, since the mandamus count has been mooted by the board’s adoption of subdivision rules and regulations, the plaintiffs’ complaint is DISMISSED, in its entirety, WITH PREJUDICE.

Judgment shall issue accordingly.


By the court (Long, J.)


[Note 1] Each of the complaints makes parallel requests.

[Note 2] In addition to the well-pleaded factual allegations contained in the complaint, Rule 12(b)(6) permits the court to take into consideration matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint. Schaer v. Brandeis University, 432 Mass. 474 , 477-78 (2000). See also Jarosz v. Palmer, 436 Mass. 526 , 529-30 (2002); Jackson v. Longcope, 394 Mass. 577 , 580 n.2 (1985). Moreover, a 12(b)(6) evaluation properly can include the entirety of documents integral to, referenced in, or explicitly relied upon in the complaint, even if they were not attached. See, e.g. Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 n.4 (2004) (“Where, as here, the plaintiff had notice of…documents and relied on them in framing the complaint, the attachment of such documents to a motion to dismiss does not convert the motion to one for summary judgment.”); Shaw v. Digital Equipment Corp., 82 F.3d 1194, 1220 (1st Cir. 1996); Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 n.3 (1st Cir. 1991).

[Note 3] A party’s characterization of documents cannot contradict the documents themselves. See Ng Bros. Constr. Inc. v. Cranney, 436 Mass. 638 , 647-48 (2002).

[Note 4] Gosnold, originally a part of the town of Chilmark, was created as an autonomous municipality by act of the Legislature in 1864. It is comprised of the Elizabeth Islands, a chain of islands in Buzzards Bay lying between Martha’s Vineyard and the mainland of southeastern Massachusetts. Most of the islands are owned by trusts created by the Forbes family in the nineteenth century. One island, Cuttyhunk, was subdivided early in the twentieth century, has many landowners, is more densely settled than the other islands (approximately half of Gosnold’s year-round population lives there), and has several public ways. The parcels of land at issue in these cases are all located on Cuttyhunk.

Gosnold is divided into two zoning districts: Zone I—Village District which encompasses the village area and is generally served by existing public ways and Zone II—Other Areas served by unpaved roads and lanes.