BROCKTON POWER COMPANY LLC vs. PLANNING BOARD OF THE CITY OF BROCKTON

Plaintiff Brockton Power Company LLC filed its Verified Complaint on December 10, 2009 (09 MISC 417926), seeking (1), pursuant to the provisions of G.L. c. 249, § 5, a mandamus order to require Defendant City of Brockton Planning Board (the “Planning Board”) to allow site plan technical review to proceed pertaining to property owned by Plaintiff and located in the Oak Hill Industrial Park in Brockton, MA (“Locus”), and (2), pursuant to the provisions of G.L. c. 231A, § 1, a declaratory judgment relative to the Planning Board’s denial of the site plan technical review process. Plaintiff filed its Motion for Summary Judgment on January 13, 2010, together with supporting memorandum, Statement of Material Facts, and Appendix including the Affidavit of Barry P. Fogel, Esq. The Planning Board filed its Answer on January 20, 2010. A case management conference was held on February 16, 2010, at which time the Planning Board filed its Opposition to Motion for Summary Judgment, together with supporting memorandum and Appendix. On March 1, 2010, Plaintiff filed a Motion to transfer the case to the permit session, which was heard and allowed on March 11, 2010 (10 PS 424887). Plaintiff filed its Reply to Defendant’s Summary Judgment Opposition on March 22, 2010. Plaintiff filed its Verified Amended Complaint on June 24, 2010, adding to the two existing counts requests for a mandamus order and a declaratory judgment for a final Planning Board decision relative to site plan review. Plaintiff filed its Amended Motion for Summary Judgment on July 27, 2010, together with supporting memorandum and Appendix including Affidavit of Barry P. Fogel. The Planning Board filed its Opposition on August 27, 2010, together with Appendix including the Affidavits of Katherine M. Feodoroff (Assistant City Solicitor), Wayne McAllister (Chairman of the Planning Board), and Pamela Gurley (Secretary of the Planning Board). Plaintiff filed its Reply on September 10, 2010. A hearing was held on the summary judgment motion on November 29, 2010, 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 Plaintiff is entitled to bring an action in the nature of mandamus, inasmuch as the City of Brockton Zoning Ordinance (the “Ordinance”) does not excuse the Planning Board from any duty it has to review the Application through its Technical Review Committee or from any duty the Planning Board has to issue a final decision relative to site plan review, and because Plaintiff does not have an adequate alternative remedy if the Planning Board has either such duty.

ORDERED and ADJUDGED that the requirements in the Planning Board letters dated April 22, 2010 and April 30, 2010 relative to Planning Board review are not required by the Ordinance or by the City of Brockton Rules and Regulations of the Planning Board.

ORDERED and ADJUDGED that Plaintiff is entitled to technical review by the Planning Board through its Technical Review Committee.

ORDERED and ADJUDGED that Plaintiff is entitled to site plan review and final action by the Planning Board, and that the Planning Board may condition any approval on an unappealable approval of the Superseding Order of Conditions (the “SOC”).

ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is ALLOWED IN PART, inasmuch as Plaintiff is entitled to technical review by the Planning Board through its Technical Review Committee, and inasmuch as Plaintiff is entitled to final action on the Application by the Planning Board, except that the Planning Board may condition its approval on an unappealable approval of the SOC.

ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is DENIED IN PART, inasmuch as Plaintiff is not entitled to unconditioned final action by the Planning Board with respect to issues raised by the appeal of the SOC to the Appeals Court, prior to final resolution of that appeal.

By the court. (Sands, J.)