This case involves an appeal by the plaintiff, Southwest Corporation, pursuant to G.L.c.41, §81BB from the decision of the Planning Board of the Town of Sudbury ("the Board") disapproving the plaintiff's definitive subdivision plan for its parcel of land in Sudbury. The plaintiff's original complaint was amended on August 30, 1989, adding counts II and III. The plaintiff then filed a motion for partial summary judgment on Count II of its complaint and the motion was argued by counsel. The Board agrees that there exists no substantial and genuine issue of material fact and that judgment should enter as a matter of law. The Board maintains, however, that it, rather than the plaintiff, is entitled to partial summary judgment on Count II.
Under Mass. R. Civ. P. 56(c), a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that a party is entitled to a judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976). After reviewing the pleadings and the one affidavit in this case, I rule that there is no genuine issue as to any material fact relevant to Count II and therefore, the case is ripe for partial summary judgment on Count II. The undisputed facts are as follows:
1. The plaintiff, Southwest Corporation., is the owner of a parcel of land known as and numbered 11 Peakham Road, Sudbury, Massachusetts. The plaintiff is the applicant for approval of a definitive subdivision known as Southwest Estates.
2. The individually named defendants in this action are all members of the Planning Board of the Town of Sudbury.
3. On October 31, 1988, the plaintiff submitted its definitive subdivision plan to the Board and paid a filing fee in the amount of $2,000.
4. On November 4, 1989, the plaintiff paid to the Board an additional filing fee of $2,000 upon the resubmission of its definitive subdivision plan to include an additional parcel of land.
5. On April 26, 1989, the Board disapproved the plaintiff's definitive subdivision plan by a decision in writing, which was recorded with the Town Clerk on April 28, 1989.
6. On May 11, 1989, the plaintiff filed the instant appeal in the Land Court pursuant to the provisions of G.L. c.41, §81BB.
7. On August 30, 1989, the plaintiff amended its original complaint, adding Counts II and III. In count II, the plaintiff alleges that section IV.C.2 of the Board's Rules and Regulations, which provides for a filing fee to cover the administrative costs incurred by the Board in the review of definitive subdivision plans, is void and unenforceable pursuant to G.L. c.41, §81Q, which section the plaintiff maintains, contains no provision specifically authorizing the Board to charge a filing fee.
8. Section IV.C.2 of the Board's Rules and Regulations ("section IV.C.2") provides, in pertinent part:
Filing Fees: A minimum deposit in an amount equal to $1.00 per linear foot of proposed roadway as shown on the plan, or two thousand dollars, ($2,000), whichever is greater, to cover administrative costs incurred by the Town for review of the definitive subdivision plan. . . If prior to Planning Board action on the plan, the Board finds that the amount of deposit, as prescribed above, is not sufficient to cover the actual costs incurred, the applicant shall be required to submit forthwith the additional amount deemed necessary to cover such costs.
9. Pursuant to section IV.C.2, the plaintiff paid $4,000 in filing fees to the Board as a condition of the submission of its definitive subdivision plan.
10. The By-Laws of the Town of Sudbury contain no specific provisions authorizing the Board to impose filing fees.
The issue before this Court is whether the Board is empowered to charge a fee to cover the administrative costs for review in connection with the filing of an application for the approval of a definitive subdivision plan. In reviewing the undisputed material facts related to this issue, I rule that the plaintiff is not entitled to relief on its motion for partial summary judgment, and that partial summary judgment on Cont II should issue for the defendant.
G.L. c.41, §81Q ("section 81Q") requires a planning board, after proper notice and public hearing, to adopt reasonable rules and regulations relative to subdivision control "not inconsistent with the subdivision control law or with any other provision of a statute or of any valid ordinance or by-law of the city or town." Section IV.C.2 of the Board's Rules and Regulations provide for the imposition of a filing fee as a condition to subdivision plan approval. The plaintiff contends that the Board is precluded from imposing filing fees for subdivision plan applications because section 81Q does not specifically "require or allow" the imposition of such a fee.
Section 81Q does not mandate that a planning board charge a filing fee as a condition of subdivision plan approval, nor does it expressly prohibit the imposition of such a fee. In fact, section 81Q makes no specific mention of rules and regulations regarding filing fees. The plaintiff maintains that this omission amounts to a "clear absence of statutory authority" for the imposition of filing fees because section 81Q otherwise provides for certain provisions which may be incorporated in such rules and regulations. Therefore, argues the plaintiff, section IV.C.2 is void and unenforceable because it exceeds the Board's statutory authority granted by section 81Q .
There appears to be no authority on whether section 81Q authorizes a planning board to adopt a rule or regulation imposing filing fees for subdivsion plan approval applications. However, the Supreme Judicial Court recently upheld the imposition of a filing fee by the rent control board of Cambridge where, as here, the fee was challenged on the ground that the authority to charge filing fees was not granted to the board under the enabling legislation. Southview Co-operative Housing Corp. v. Rent Control Board of Cambridge, 396 Mass. 395 (1985). In Southview, the fee was charged by the rent control board in connection with the filing of petitions for individual rent adjustments. Id. Under the rent control enabling act, the board was authorized to promulgate regulations in furtherance of the purposes of the act. Id. at 396. The Court found that the board's regulatory authority was expressly limited only by the requirement that the board's regulations promote the purposes of the act. Id. at 399. The filing fee was found to be a permissible regulation because it could not reasonably be contended that the imposition of filing fees did not further the goal of rent control. The Court stated that the authority to regulate "includes the authority to exact fees to defray the cost of conducting hearings and performing other services in conjunction with individual rent adjustment petitions." Id. at 400. Therefore, the rent control board was authorized to charge fees in connection with the services it performed, provided the fees were "reasonably designed to compensate the board for the anticipated expenses." Id. at 404.
Section 81Q requires the Board to adopt reasonable rules and regulations "relative to subdivision control not inconsistent with the subdivision control law or with any other provisions of a statute or of any valid ordinance or by-law of the city or town." I rule that the imposition of filing fees to cover the administrative costs incurred by the Town for review of definitive subdivision plans is relative to subdivision control and is not inconsistent with the subdivision control law or with any other provision of a statute or of any valid ordinance or by-law of the Town of Sudbury and is therefore within the Board's regulatory authority. Accordingly, I rule that the Board's authority to regulate the subdivision of land includes the authority to charge reasonable filing fees to compensate the Board for the costs occasioned by its review of applications for definitive subdivision plan approval. [Note 1] I further rule that the plaintiff's motion for partial summary judgment on Count II is hereby denied and that partial summary judgment on Count II is to be entered in favor of the defendant Board.
Partial Judgment on Count II accordingly.
SOUTHWEST CORPORATION v. RUSSELL P. KIRBY, LAEL M. MEIXSELL, JAMES P. WATTERSON, RICHARD A. BROOKS and PETER H. ANDERSON, as they are and constitute the Members of the Planning Board of the Town of Sudbury.