JAMES A. JENKINS, individually and as Trustee of JENKINS NOMINEE TRUST, and FRED S. JENKINS and BARBARA J. JENKINS, as managers of J.A. JENKINS & SON CRANBERRY CO., LLC v. PLANNING BOARD OF THE TOWN OF BARNSTABLE, and MARLENE WEIR, PATRICK PRINCI, FELICIA PENN, DAVID MUNSELL, RAYMOND LANG and PAUL CURLEY, as members of the PLANNING BOARD OF THE TOWN OF BARNSTABLE, and PETER P. JENKINS, JR., EDWIN B. JENKINS, and JOHN P. JENKINS

This action was filed by James A. Jenkins, individually and as Trustee of the Jenkins Nominee Trust, and by Fred S. Jenkins and Barbara J. Jenkins, as managers of J. A. Jenkins & Son Cranberry Co., LLC (collectively the “Plaintiffs”) on February 17, 2009, appealing pursuant to G.L. c. 41, § 81BB a decision of the Barnstable Planning Board (the “Board”) dated January 30, 2009, approving a five lot subdivision plan (the “Plan”) which had been submitted to it by Peter P. Jenkins, Jr., Edwin B. Jenkins and John P. Jenkins (“Defendants”). [Note 1]

This case has been litigated by the individual parties, the Planning Board having taken a passive stance. An Answer and Counterclaim were filed by Defendants Peter P. Jenkins and John P. Jenkins contending that Plaintiffs lacked standing to bring and prosecute this action, whereupon Plaintiffs filed a special motion to dismiss pursuant to G.L. c. 231, § 51H praying that the Court dismiss the counterclaim on grounds that it violated the so-called Anti-SLAPP Statute. Following a hearing, the Court entered an order on October 21, 2009 denying the special motion to dismiss, ruling that Partition Commissioner Dunning is not a “public official” within the meaning of that statute and that statements allegedly made to him therefore do not constitute “petitioning activity.”

Following a delay caused, in part, because of the parties' attempts to settle the dispute, trial took place in Boston on February 10 and 11, 2011. The testimony of eight witnesses was reported and 101 exhibits, some with multiple parts, were introduced into evidence. Post trial briefs were filed between April 19 and May 3, 2011. [Note 2]

Attached hereto are a reduced copy of the approved subdivision plan at issue in this case (Exhibit A) and a diagram plan depicting the subject property and surrounding area (Exhibit B).

FINDINGS OF FACT

Based on the testimony of witnesses, the exhibits in evidence, and reasonable inferences I draw therefrom, I find the following facts:

1. The Defendants are the owners of a certain tract of land consisting of 15.6 acres, more or less, in West Barnstable, Barnstable County, Massachusetts, shown on Barnstable Assessor's Map 176 as Parcel 21. The five-lot subdivision of this tract of land (the “Locus”) is the subject matter of this Appeal.

2. Plaintiff James A. Jenkins, Trustee of the Jenkins Nominee Trust, is the record owner of a certain tract of cranberry bog and surrounding upland consisting of 24.7 acres, more or less, in West Barnstable, by virtue of a deed recorded in the Barnstable County Registry of Deeds in Book 9994, Page 106. [Note 3] This land, known as the Woodland Bog, is shown on a plan recorded at the Barnstable County Registry of Deeds in Plan Book 321, Page 89, and is also shown as Lot 19 on Assessor's Map 176.

3. The Woodland Bog lies northeasterly of, and abuts, the Locus.

4. Plaintiff James A. Jenkins, Trustee of the Jenkins Nominee Trust, is also the record owner of another certain tract of cranberry bog and surrounding upland consisting of 44.0 acres more or less in West Barnstable, by virtue of a deed recorded in Book 9994, Page 100. This land, known as the New Enterprise Bog, is shown on a plan recorded in Plan Book 424, Page 42, and is also shown as Lot 10 on Assessor's Map 175.

5. The New Enterprise Bog lies southwesterly of, and abuts, the Locus.

6. Both the Woodland Bog and the New Enterprise Bog are occupied by Plaintiff Jenkins Cranberry Co., LLC, and are used exclusively for the commercial cultivation of cranberries.

7. On July 1, 2005, Edwin B. Jenkins, a Defendant in the present case, petitioned the Barnstable Probate And Family Court for partition and sale of the Locus. John P. Jenkins and Peter P. Jenkins, also Defendants in the present case, objected. On January 4, 2006, Attorney Michael A. Dunning was appointed Commissioner for Partition, and after posting bond on February 24, 2006, a Commissioner's Warrant was issued on March 3, 2006, ordering him to sell the Locus for not less than $850,000, and to distribute the proceeds equally between Edwin, John and Peter Jenkins.

8. Having determined that a subdivision of the Locus and sale as residential lots would result in a greater return than sale of the Locus as a single property, Attorney Dunning retained Cape and Islands Engineering to prepare a Subdivision Plan and initiated the subdivision process. During the pendency of the subdivision application and appeal, Attorney Dunning's appointment as Commissioner has been extended at least six times.

9. Subdivision 817 plan, as it is referred to in Planning Board files, was developed by Cape & Islands Engineering over a period of time during which various draft plans were shown to the Board. At these meetings, Attorney Dunning appeared both as representative of the Locus property owners and as the Commissioner appointed by the Probate Court. John Slavinsky represented Cape & Islands at several of these meetings. Summaries of the pertinent portions of these meeting follow:

10. The decision of the Board, approving the Subdivision, dated January 30, 2009, was filed that day with the Town Clerk. The present action was filed February 17, 2009.

11. The resulting Plan and Application for a five-lot subdivision, formally “Subdivision 817,” submitted on September 7, 2007 by Peter Jenkins and approved by the Board on January 26, 2009, is the focus of this case.

STANDARD OF REVIEW

In reviewing appeals brought pursuant to G. L. c. 41, § 81BB, the trial judge hears the matter de novo, makes independent findings of fact and, on the facts so found, determines whether the plan submitted to the planning board conforms to the reasonable rules and regulations of the board. Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 478, (1955). The developer would have the burden of proving that the planning board has exceeded its authority in disapproving the plan if such were the case. Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977) (citation omitted). While a trial judge may not substitute his or her own judgment for that of the planning board, see Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 21 (1977), the Board’s decision will not be sustained where it has acted outside of its authority under the subdivision control law. Section 81M of G. L. c. 41 “requires approval of any subdivision plan which conforms to the . . . reasonable rules and regulations of the planning board.” See Mac-Rich Realty Constr., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 84-85 (1976).

“A planning board may in any particular case, where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law, waive strict compliance with its rules and regulations.” G. L. c. 41, §81R. The decision whether to grant a waiver involves a great deal of discretion, and if “reasonable minds might in good faith differ, without doubting the reasonableness of the opposing view, the conclusion of the planning board should be sustained on judicial review.” Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 809 (1981). In the present case, while the initial plans submitted indicated that waivers might be required, the final Definitive Plan did not require them and none were granted.

DISCUSSION

STANDING

Under G. L. c. 40A, § 17, only “persons aggrieved” have standing to appeal a decision of a zoning board of appeals. The same is true in actions appealing decision of Planning Boards under G. L. C. 41, § 81BB. If a plaintiff’s legal or property rights will (or likely will) be infringed by a board’s action, then he qualifies as a “person aggrieved.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grill, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949). While the term “person aggrieved” is not to be narrowly construed, the plaintiff’s injury must be more than speculative, and must be particularized, distinct from general community interests. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that the violation must be “special and different from the concerns of the rest of the community”); Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989) (requiring that plaintiff show “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest”). In addition, the injury claimed by the plaintiff also must be “legitimately within the scope of the zoning laws.” Marashlian, 421 Mass. at 722.

There is an initial presumption that an individual who is entitled to notice of board hearings is a “person aggrieved,” [Note 4] although that presumption will fall away if standing is challenged, and evidence offered in support of such challenge, the question then to be decided on all the evidence. See Kenner v. Zoning Bd. of Appeals, 459 Mass. 115 , 118 (2011); Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006); Marashlian, 421 Mass. at 721; Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203-04 (1957). The plaintiff in such a circumstance must provide facts from which the court may find the aggrievement necessary to constitute standing. Standerwick, 447 Mass. at 33-35; Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). To establish standing a plaintiff “must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721.

While a plaintiff does not need to provide a preponderance of evidence at the trial of the case, the evidence provided “must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board’s action.” Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). To meet the standard of “credible evidence,” the evidence offered must provide specific factual support for each of the claimed injury (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Butler, supra, at 441. “Conjecture, personal opinion, and hypothesis” are insufficient. Butler, supra, at 441. To meet the standard of "injury," the evidence offered must show that the plaintiff “will be injured or harmed by proposed changes to an abutting property, not whether they simply will be 'impacted' by such changes.” Kenner, 459 Mass. at 122. Such burden may be met by showing that a sufficient nexus between the claimed injury to the plaintiff and the harm to an interest protected by statute. Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 520-21 (2011).

In the present case, the Plaintiffs are the owners of two properties abutting the Locus and as such are presumed to have standing to challenge the Board’s decision. The Defendants have asserted a challenge to the presumption but have not presented evidence sufficient to sustain that challenge. Accordingly. the Plaintiffs’ presumption of standing remains.

The Plaintiffs have further demonstrated the existence of a nexus between an injury they will suffer if the subdivision is developed and the issue of wetlands protection, which is clearly a matter with which the Board must be concerned. The Locus wetlands, hereafter referred to as “Wetland A,” “Wetland B,” “Wetland C” and “Wetland D” as labeled on the Revised Definitive Plan, are linked to the Plaintiffs’ cranberry bogs. Witness testimony, wetlands surveys and plans indicate a system in which local ponds feed cranberry bogs, which are either directly connected to the Locus wetlands as the Woodland bog is to Wetland A, or connected by groundwater percolation as the New Enterprise Bog is to Wetland B. The Barnstable Wetlands Protection ordinance states that the “values and functions” of wetlands include, among others, public and private water supply, groundwater and “agricultural values.” Exhibit 95, § 237-1. The Code of Massachusetts Regulations discusses benefits of bordering vegetative wetlands, the type of wetlands found on the Locus, including removal of pollutants and toxic substances, storm damage prevention and flood control. 310 CMR 10.55(1). Issuing authorities reviewing a proposal to remove, fill, dredge or alter bordering vegetated wetlands are directed to presume that the wetland at issue is significant to these interests, absent a clear showing to the contrary. 310 CMR 10.55(3). The Plaintiffs’ interest in protecting these abutting wetlands clearly relates to the public interest in wetlands preservation, but beyond that, also lies an individual interest in Plaintiffs’ continuing ability to maintain and use their cranberry bogs.

Defendants’ Contract Claim

In addition to contesting Plaintiffs’ standing, Defendants also contend that Plaintiffs are precluded from bringing this action or from in any way contesting the subdivision plan at issue by a settlement agreement allegedly entered into by the parties. Correspondence in evidence shows that Attorney Dunning and Attorney Sunderland conducted negotiations toward arriving at a resolution of the dispute. At issue here is a purported offer and acceptance of an agreement that if the Barnstable Conservation Administrator, Robert Gatewood, inspected the Locus and concluded that a site plan provided by the Plaintiffs “adequately and accurately depicted the wetlands,” Plaintiffs’ objections would be satisfied. (See Ex. 54; Ex. 55.) The plan provided was a version of the December 6, 2007 plan that did not include Wetland B, and Mr. Gatewood was not, after two inspections of the Locus, persuaded of the adequacy and accuracy of the plan. Though further correspondence between the parties followed, including the drafting and execution of an easement for access and passage over a cart path that has been held in escrow by Defendants’ counsel, the Court does not find that a final agreement was ever reached. The negotiations were just that, “negotiations,” which did not result in a binding settlement. Therefore, Defendants’ preclusion argument cannot be sustained.

Delineation of the Wetlands

Two sets of wetland boundaries are delineated in the Revised Definitive Plan based on two definitions of wetland boundaries found in the Barnstable Code, one pertaining to Chapter 240, “Zoning,” and the other to Chapter 237, “Wetlands Protection.” [Note 5] These differing definitions may lead to two different delineations of the wetland areas. Each has some support in state law, the Chapter 240 definition being similar to that found in the statutes, while the Chapter 237 definition reflects language used in the state regulations. [Note 6]

If it were the case that certain of the wetland areas on the Locus property meet the Regulatory definition of Wetlands, but not some other definition supportable by law, with the result (as the Defendants assert) that the delineation based on the Zoning definition were inclusive of less wetland area than the Regulatory definition would indicate, the Court would interpret the Zoning definition as incorporating the Regulatory definition to maintain compliance with State statute. [Note 7] Such a case would be differentiated from precedent cases in which a municipal bylaw delineates more wetland area than applicable State law, where the local law was found not to be precluded by State law and was controlling. [Note 8] However, the Defendants' wetlands inspector does not appear to have based his conclusion that certain of the Wetlands areas, in particular the important “Wetland B,” failed to meet the Zoning criteria on any identified difference between statutory, regulatory and local law, but on “soil pit” tests erroneously given higher precedence than vegetation surveys. [Note 9]

The Court finds no reasonable basis for Mr. DiGregorio's differentiation between “Zoning Wetlands” and “Conservation Wetlands.” The Court is satisfied that the “Conservation Wetlands” definition provided in Chapter 237 is sufficiently consistent with the CMR definition to be considered controlling in this case. Both Mr. DiGregorio, who the Defendants put forward as their authority on wetlands, and Mr. Gatewood, the Barnstable Conservation Administrator and a witness for the Plaintiffs, agree that the Chapter 237 wetlands delineations labeled on the Revised Definitive Plan are correct.

The Court therefore finds that the areas labeled “Wetland A,” inclusive of the “4,430 SF. Vegetated Wetland Per Barns. Chap. 237" on its southwesterly corner; “Wetland B;” “Wetland C;” and “Wetland D,” inclusive of the surrounding “5,200 SF. Vegetated Wetland Per Barns. Chap. 237,” are all Wetlands. The Court is satisfied that the “250 SF. Vegetated Wetland” located in Lot 3 is not material to this case. [Note 10]

When the correctly delineated wetlands are subtracted from the lots depicted on the Revised Definitive Plan, it becomes evident that Lot 1 and Lot 2 are not buildable lots. All parties agree that under the applicable zoning, including the § 240-36 Overlay District, 87,120 square feet of contiguous upland are required. [Note 11] According to the Revised Definitive Plan, prepared by registered surveyor Sanicki, Lot 2 includes 96,703 gross square feet. 11,400 square feet of wetland are identified on the Plan. [Note 12] Total upland is therefore 85,303 square feet, falling short of the requisite 87,120. Lot 1 totals 109,557 square feet, with 19,780 square feet of wetland; the total upland is therefore 89,777 square feet. This upland, however, is not entirely contiguous. Wetland B breaks continuity, separating the main body of the lot from the “porkchop” shaped portion. [Note 13] When the oddly shaped isolated portion is deducted from the total upland square footage, consistent with the zoning ordinance, only 64,138 contiguous square feet remain. This being substantially less than the 87,120 square feet required, Lot 1 is also not a buildable lot. [Note 14]

Having concluded that the Planning Board based its decision approving the Plan on an incorrect opinion and ruling as to the amount of wetlands on the property sought to be subdivided, it follows that Lot 1 and Lot 2 are not buildable lots and should not have received Planning Board approval. [Note 15] The by-laws applicable to the lots shown on Defendants’ subdivision plan require that each lot consist of at least two acres of contiguous upland area. Lot 1 and Lot 2 do not meet this requirement.

For all the above reasons, Defendants’ plan should not have been approved because doing so exceeded the authority of the Board. The Board’s Decision must be annulled.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: July 7, 2011