RIDGELEY MANAGEMENT CORPORATION, General Partner of RIDGELEY FARM LIMITED PARTNERSHIP v. PLANNING BOARD OF THE TOWN OF GOSNOLD, BOARD OF HEALTH OF THE TOWN OF GOSNOLD, and THE TOWN OF GOSNOLD

Plaintiff initiated this action on February 26, 2009 by filing a three-count complaint appealing, pursuant to G. L. c. 41, § 81BB, from the Planning Board of the Town of Gosnold’s (Planning Board) failure to act on Plaintiff’s definitive subdivision plan (Plaintiff’s Plan), which sought to divide property owned by Plaintiff. Plaintiff also seeks a declaration, pursuant to G. L. c. 240, § 14A and G. L. c. 231A, that (1) zoning amendments adopted by the Town of Gosnold after the filing of Plaintiff’s Plan do not apply to Plaintiff’s property and (2) the freeze on the Board of Health regulations imposed by G. L. c. 111, § 127P runs from the date the Board approves Plaintiff’s Plan. Finally, Plaintiff seeks a writ of mandamus, pursuant to G. L. c. 249, § 5, requiring the Planning Board (1) to complete the process of formally adopting subdivision rules and regulations as outlined G. L. c. 41, § 81N (Rules and Regulations) and (2) to thereafter approve Plaintiff’s Plan, without application of the newly adopted Rules and Regulations.

On April 28, 2010, the Town filed an answer to Plaintiff’s complaint. That same day, the Town submitted a Motion for Judgment on the Pleadings. Plaintiff opposed this motion through a written opposition filed on June 1, 2010, together with Plaintiff’s cross-motion for summary judgment. On June 8, 2010, the Town filed a Response to Plaintiff’s Opposition to Defendant’s Motion for Judgment on the Pleadings, but did not otherwise respond to Plaintiff’s cross-motion for summary judgment. A hearing was held on June 8, 2010, at which all parties were heard.

Defendants have moved for a judgment on the pleadings. The pleadings establish the following facts:

1. Plaintiff is a Delaware corporation, duly qualified to do business in the Commonwealth of Massachusetts and is the General Partner of Ridgeley Farm Limited Partnership.

2. Ridgeley Farm Limited Partnership is a Delaware limited partnership, duly qualified to do business in the Commonwealth of Massachusetts.

3. Ridgeley Farm Limited Partnership is the owner of record of certain real estate on Cuttyhunk Island, Gosnold, Dukes County, Massachusetts, generally known as the Ridgeley Farm (Plaintiff’s Property). Plaintiff’s Property is located within a residential zoning district.

4. The Planning Board is a municipal board of the Town of Gosnold with a usual place of business at Gosnold Town Hall, 28 Tower Hill Road, Cuttyhunk Island, Dukes County, Massachusetts.

5. The Town is a municipality chartered and organized under the laws of the Commonwealth of Massachusetts with a usual place of business at Gosnold Town Hall 28 Tower Hill Road, Cuttyhunk Island, Dukes County, Massachusetts.

6. The Board of Health is a municipal board of the Town of Gosnold with a usual place of business at Gosnold Town Hall, 28 Tower Hill Road, Cuttyhunk Island, Dukes County, Massachusetts.

7. At its annual town meeting on May 20, 2000, the Town voted to allow the Board of Selectmen to act as the Planning Board. Under G. L. c. 41, § 81N, that vote had the effect of accepting the Subdivision control law.

8. The Planning Board did not adopt Rules and Regulations at the May 20, 2000 meeting and no Rules and Regulations had been adopted at the time that Plaintiff initiated this action. However, the Planning Board did adopt Rules and Regulations on November 13, 2009.

9. Prior to being authorized to act as the Planning Board, the Board of Selectmen would sporadically endorse plans “approval not required” under the Subdivision control law. This practice continued after the vote to allow the Board of Selectmen to act as the Planning Board.

10. In mid-May 2008, Plaintiff filed a Preliminary Subdivision Plan with the Planning Board, which sought to subdivide Plaintiff’s Property.

11. In May 2008, at the annual town meeting, the Town enacted amendments to the Zoning Bylaw (Bylaw). Additionally, after the filing of Plaintiff’s preliminary subdivision plan, the Board of Health adopted new regulations.

12. On July 7, 2008, the Planning Board voted to approve Plaintiff’s Preliminary Subdivision Plan.

13. On December 3, 2008, Plaintiff filed Plaintiff’s Plan with the Planning Board.

14. By letter dated February 9, 2009, the Planning Board returned Plaintiff’s Plan to Plaintiff, without acting thereon, and asserted that it was without jurisdiction to act on Plaintiff’s Plan because it had not adopted Rules and Regulations pursuant to the Subdivision control law.

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When a defendant moves for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c), the motion is treated as a motion to dismiss. See Jarosz v. Palmer, 436 Mass. 526 , 529 (2002). Consequently, a motion for judgment on the pleadings determined solely on the facts contained in the pleadings, without review of additional facts. Tanner v. Bd. of App. of Belmont, 27 Mass. App. Ct. 1181 , 1182 (1989); Clarke v. Metropolitan Dist. Comm., 11 Mass. App. Ct. 955 , 955 (1981) (“A judgment on the pleadings under Mass. R. Civ. P. 12(c) is appropriate only where there are no material facts in dispute on the face of the pleadings.”). In ruling on a motion for judgment on the pleadings, the court accepts as true any well-pleaded factual allegations in the plaintiff’s complaint and any inferences favorable to the plaintiff that can reasonably be drawn from those allegations. Boston Water & Sewer Commission v. Commonwealth of Massachusetts, 64 Mass. App. Ct. 611 , 614 (2005). The court may consider “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint.” Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008) (holding that a judge’s used of extrinsic material in deciding a motion brought under Mass. R. Civ. P. 12(b)(6) was proper).

Plaintiff argues that the first sentence of G. L. c. 41, § 81N mandates that the Subdivision control law becomes effective when a town “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.” Defendants counter that the last sentence of G. L. c. 41, § 81N expressly provides that the Subdivision control law shall not go into effect until “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 that the planning board has adopted its rules and regulations as provided in section eighty-one Q. . . .” For the reasons set forth herein, the court agrees with Defendants.

G. L. c. 41, § 81N provides, in relevant part

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 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 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). “Conflicting provisions of a statute should, if possible, be construed in a way that is harmonious and consistent with the legislative design.” Peters v. Michienzi, 385 Mass. 533 , 537 (1982). The first sentence of G. L. c. 41, § 81N is clear. It specifies in which jurisdictions the Subdivision control law will be in effect, however it does not provide the effective date of such application. The last sentence of G. L. c. 41, § 81N makes clear that, 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 Planning Board did not adopt Rules and Regulations pursuant to G. L. c. 41, § 81Q until November 13, 2009, well after Plaintiff had initiated the instant action.

Consequently, this court finds that the subdivision control law had not “become effective” in the Town of Gosnold prior to the filing of Plaintiff’s Plan. As a result, the Planning Board had no authority to act on Plaintiff’s Plan at the time of its filing. Accordingly, Defendants’ motion for judgment on the pleadings hereby is GRANTED. [Note 1] Plaintiff’s complaint hereby is DISMISSED. [Note 2]

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: February 18, 2011