This matter involves an appeal under G.L. c. 40A, §17 from a denial by the defendant Planning Board of the Town of Pepperell ("Board") of the plaintiff's application for a special permit to construct four two-family residences on certain lots in the Town of Pepperell. The plaintiff appears to argue that the lots are a portion of land shown on a plan endorsed by the Board and recorded in 1970, at least a portion of which was the subject of litigation from 1981 through 1985, during which period further plans were endorsed, thereby protecting the land from any zoning changes during such litigation and for a certain period thereafter by the language of G.L. c. 40A, §6.
There appear to be material facts before the Court which defeat the defendants' motion for summary judgment, as well as the plaintiff's cross motion, including questions as to the prevailing party in the 1981 litigation, and whether or not such litigation precluded the plaintiff's use of the subject land, as well as whether or not all, or any portion of, the land was affected by the litigation.
The foregoing notwithstanding, I find and rule that:
Under the provisions of G.L. c. 40A, §7A, the plaintiff's 1970 definitive subdivision plan ("1970 plan") effectively "froze" the then-existing zoning to 1977. Thereafter, the land shown on the 1970 plan had no such protection regardless of the filing of any amended plan or further subdivision, it appearing that no waiver, as required under G.L. c. 40A, §6, to extend such "freeze" was timely filed, nor did the 1981 litigation extend the freeze which had expired several years prior to the instigation of such suit.
Accordingly, I rule that the zoning protection acquired by the 1970 plan expired in 1977 and was not extended by the filing of subsequent plans. All other aspects the defendants' motion for summary judgment and plaintiff's cross motion are denied.
By the Court
MILLBROOK REALTY TRUST vs. APRIL H. BABBITT, DOUGLAS SIKUL, THOMAS HAMILTON, SCOTT BLACKBURN, PAMELA RICHARDS and LINDA A. MOODY, as they are members of the PLANNING BOARD OF THE TOWN OF PEPPERELL.