JAMES LYONS and BERNADETTE LYONS vs. PAUL J. SALAFIA, LINN N. ANDERSON, JOHN J. McDONNELL, VINCENT A. CHIOZZI, JR., MARK YANOWITZ, JOAN DUFF, as they are members of the ANDOVER PLANNING BOARD, WILLIAM P. JOHNSON, individually and as Trustee of VALE REALTY TRUST, and TIMOTHY W. BARASH

Plaintiffs filed their nine count unverified Complaint (10 MISC 431830) on June 11, 2010, pursuant to G.L. c. 41, § 81BB, appealing a decision of Defendant Andover Planning Board (the "Planning Board") that denied Plaintiffs' Petition to Rescind (the "Rescission Denial") an approval of a subdivision of land entitled "Reynolds Street" (the "Subdivision Approval") granted to Defendant William P. Johnson, individually and as Trustee of Vale Realty Trust ("Johnson"). The Planning Board filed its Answer on June 23, 2010. Johnson filed his Answer on July 6, 2010.

Plaintiffs filed their eleven count unverified Complaint (10 MISC 435033) on July 29, 2010, appealing a decision of the Planning Board which re-affirmed the Subdivision Approval (the "Re-Affirmation"). A case management conference was held on August 4, 2010, at which the two cases were consolidated. The Planning Board filed its Answer on August 9, 2010. Johnson filed his Answer on September 23, 2010. On October 29, 2010, Johnson filed his Motion for Plaintiffs to post bond. By Order dated January 27, 2011, this court required Plaintiffs to post bond of $10,000. A pre-trial conference was held on June 16, 2011. At a status conference on November 18, 2011, this matter was converted to summary judgment.

Johnson filed his Motion for Summary Judgment on February 29, 2012, together with supporting memorandum and Concise Statement of Material Facts. Plaintiffs filed their Motion for Summary Judgment on March 1, 2012, together with supporting memorandum, Undisputed Material Facts, and Affidavits of Douglas Lees, P.E. and Plaintiff James Lyons. Defendant Timothy W. Barash ("Barash," and together with Johnson and the Planning Board, "Defendants") filed his Motion for Summary Judgment on March 2, 2012, together with supporting memorandum, Uncontested Material Facts, and Affidavit of Jacki Byerley, Planner for the Town of Andover ("Byerley"). On March 30, 2012, Johnson filed his Opposition to Plaintiffs' Motion for Summary Judgment, together with supporting memorandum. On April 2, 2012, Barash joined in Johnson's Opposition. On the same day, Plaintiffs filed their Opposition to Johnson's Motion for Summary Judgment and their Opposition to Barash's Motion for Summary Judgment. A hearing was held on all motions on April 30, 2012, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find that the following material facts are not in dispute:

1. Barash owns and resides at property located at 8 High Vale Lane, Andover, Massachusetts (the "Subdivision Property"). The Subdivision Property is registered land (see Registration Case No. 42451 (the "Registration Case") and Certificate of Title No. 13812.)

2. Plaintiffs own and reside at 12 High Vale Lane, Andover, MA ("Plaintiff Property"). The Subdivision Property abuts Plaintiff Property.

3. On May 18, 2004, Johnson submitted a definitive two lot subdivision plan entitled "Reynolds Street" dated May 12, 2004, and prepared by Land Engineering & Environmental Services, LLC to the Planning Board for the Subdivision Property. Johnson later submitted a second definitive subdivision plan entitled "Reynolds Street" dated June 28, 2004, and prepared by Land Engineering & Environmental Services, LLC (the "Subdivision Plan"). [Note 1] Pursuant to the Subdivision Plan, proposed Lot 1 contains a single-family home with frontage on High Vale Lane, where Barash resides. Proposed Lot 2 is a vacant lot on which Johnson proposes to construct a single-family home with frontage on Reynolds Street.

4. On January 11, 2005, the Planning Board issued the Subdivision Approval, approving the Subdivision Plan, subject to twelve conditions listed below: [Note 2] [Note 3]

5. On or about January 12, 2005, the Subdivision Approval was recorded in the office of the Town Clerk; however, it was not recorded with the Essex County (Northern Division) Registry of Deeds (the "Registry").

6. Abutters to the Subdivision Property (including Plaintiffs) appealed the Subdivision Approval to the Land Court. The appeal was dismissed by the Land Court on the basis of insufficient service. The Land Court dismissal was upheld by the Massachusetts Appeals Court on January 5, 2007. [Note 4]

7. On November 10, 2009, Johnson filed with the Planning Board, inter alia, an "updated" plan entitled "Reynolds Street," dated April 16, 2009, and prepared by Land Engineering & Environmental Services, LLC depicting the Subdivision Property "as-built" as of April 16, 2009 (the "As-Built Plan"). Other than the As-Built Plan, all materials submitted to the Planning Board on November 10, 2009, were dated either May 12, 2004 or June 28, 2004 (including the Subdivision Plan). [Note 5]

8. On February 12, 2010, Plaintiffs filed with the Planning Board a Petition to Rescind (the "Petition to Rescind") the Subdivision Approval, based on violations of conditions established in the Subdivision Approval.

9. Hearings were held on or about April 13, 2010, May 11, 2010, and May 25, 2010. On May 25, 2010, the Planning Board issued the Rescission Denial, stating that "at this time the Board has not made a determination that the developer has violated the conditions of subdivision approval," and "rescission of a subdivision approval is an inappropriate enforcement action." On May 28, 2010, the Rescission Denial was recorded in the offices of the Town Clerk.

10. On July 13, 2010, [Note 6] the Planning Board voted 4-0 to re-affirm the Subdivision Approval (the Re-Affirmation, defined supra). [Note 7] A Certificate of Action of the Andover Planning Board, dated September 22, 2010 (the "Certificate of Action"), which was recorded with the Registry at Document Number 101674, on Certificate of Title 13812, and signed by Paul Materazzo ("Materazzo"), the Director of Planning, states that the purpose of the Re-Affirmation was "to re-affirm [the Subdivision Approval] and Special Permit for Earth Removal...for the sole purpose of recording the record plan and documentation at the [Registry]." The Certificate of Action also states that "said vote is not an affirmation that what is constructed is in accordance with the approved plan."

11. At some point between July 13, 2010, and October 13, 2010, Byerley endorsed the Subdivision Plan for recording purposes as "APPROVAL REAFFIRMED BY VOTE OF THE BOARD JULY 13, 2010." Byerley's uncontested Affidavit indicates that she was the "authorized agent of the [Planning Board]" for purposes of endorsement of the Subdivision Plan. On October 13, 2010, the Subdivision Plan was recorded with the Registry as Plan 42451B. On its face, the Subdivision Plan recorded with the Registry contains a certification by the Town Clerk of Andover that "no notice of appeal was received during the twenty days next after receipt and recording of notice from the planning board of the approval of the plan, or, if an appeal was taken, that a final decree has been entered by the court sustaining the approval of the plan." As noted, supra, the Certificate of Action was recorded at the Registry on October 13, 2010. Also recorded at the Registry at Document Number 101675, on Certificate of Title 13812, on October 13, 2010, was as instrument that states it "is intended as a restriction on the Subdivision Plan" (the "Restriction"). The Restriction, which was signed by Materazzo on October 1, 2007, states that the Subdivision Plan was approved on January 11, 2005. The Restriction then lists the aforementioned twelve conditions of the Subdivision Approval. A document entitled "CERTIFICATION OF DISMISSAL OF PLANNING BOARD APPEAL" (the "Certification of Appeal") was recorded with the same Document Number as the Restriction. The Certification of Appeal, signed by the Town Clerk on February 14, 2007, states that the initial appeal of the Subdivision Approval by Plaintiffs (and others) had been dismissed by the Appeals Court.

12. Prior to the Re-Affirmation, neither Barash nor Johnson gave notice to the Andover Town Clerk that the As-Built Plan had been submitted to the Planning Board. With respect to the Re-Affirmation, the Planning Board did not post notice of a public hearing in a general newspaper and the Planning Board did not send notice of a public hearing to Plaintiffs, as abutters to the Subdivision Property. After the Re-Affirmation, the Planning Board failed to send notice of the Re-Affirmation Decision to Plaintiffs, as abutters.

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Plaintiffs argue the Subdivision Approval should be rescinded for two reasons: (1) the Subdivision Plan was not timely recorded with the Registry, pursuant to G.L. c. 41, §81X, and (2) Johnson has violated several conditions of the Subdivision Approval. In response, Defendants argue that they complied with G.L. c. 41, § 81X, and that G.L. c. 41, § 81X governs the recording, rather than the validity, of subdivision plans. Moreover, Defendants argue that it is the Planning Board's responsibility to enforce conditions of the Subdivision Approval, and Plaintiffs therefore do not have standing to bring an action to enforce covenants between the Planning Board and Johnson. To wit, Defendants argue that it is not mandatory, but it is within the discretion of the Planning Board, to enforce conditions of the Subdivision Approval.

Next, Plaintiffs argue that they are entitled to summary judgment because the Planning Board should have considered the Re-Affirmation to be a modification of the Subdivision Plan. With respect to the Re-Affirmation, Plaintiffs allege several defects in notice and public hearings, which Plaintiffs argue are required by G.L. c. 41, § 81K et. seq. (the Subdivision Control Law). In response, Defendants maintain that the Re-Affirmation was issued for the exclusive purpose of recording the Subdivision Plan with the Registry. Accordingly, Defendants believe that notice and public hearing requirements are not applicable to the hearings giving rise to the Re-Affirmation. To an extent, Defendants argue that this entire appeal is merely an attempt to re-litigate the initial appeal of the Subdivision Approval, thus this case should be dismissed on res judicata grounds. Finally, Plaintiffs claim that the Planning Board exceeded its authority because Barash and Johnson do not have rights in Reynolds Street, which Plaintiffs allege is part of the Subdivision Plan. I shall discuss each of these issues in turn. [Note 8]

A. Rescission Denial

1. Subdivision Plan Not Timely Recorded

Plaintiffs argue that the Subdivision Approval should have been rescinded because the Subdivision Plan was not timely recorded with the Registry in accordance with G.L. c. 41, § 81X.

G.L. c. 41, § 81X states in relevant part:

No register of deeds shall record any plan showing a division of a tract of land into two or more lots, and ways, whether existing or proposed, providing access thereto, in a city or town in which the subdivision control law is in force unless (1) such plan bears an endorsement of the planning board of such city or town that such plan has been approved by such planning board, and a certificate by the clerk of such city or town, is endorsed on the plan, or is separately recorded and referred to on said plan, that no notice of appeal was received during the twenty days next after receipt and recording of notice from the planning board of the approval of the plan, or, if an appeal was taken, that a final decree has been entered by the court sustaining the approval of the plan, or (2) such plan bears an endorsement of the planning board that approval of such plan is not required, as provided in section eighty-one P, or (3) the plan is accompanied by a certificate of the clerk of such city or town that it is a plan which has been approved by reason of the failure of the planning board to act thereon within the time prescribed, as provided in sections eighty-one U and eighty-one V, or that it is a plan submitted pursuant to section eighty-one P and that it has been determined by failure of the planning board to act thereon within the prescribed time that approval is not required, and a reference to the book and page where such certificate is recorded is made on said plan; and, unless, in case of plans approved, the endorsement or certificate is dated within six months of the date of the recording, or there is also endorsed thereon or recorded therewith and referred to thereon a certificate of the planning board or city or town clerk, dated within thirty days of the recording, that the approval has not been modified, amended or rescinded, nor the plan changed. Such certificate shall upon application be made by the board of by the clerk unless the records of the board or clerk receiving the application show that there has been such modification, amendment, rescission or change. The planning board of a city or town which has authorized any person, other than a majority of the board, to endorse on a plan the approval of the board or to make any other certificate under the subdivision control law, shall transmit a written statement to the register of deeds and the recorder of the land court, signed by a majority of the board, giving the name of the person so authorized.

This statute is specifically directed to the Registry and prohibits recording of a subdivision plan unless certain pre-requisites have been satisfied. The statute provides at least two avenues for recording plans. First, one can submit a subdivision plan that has been endorsed by the Planning Board within six months of its presentment for recording, together with a certificate by the town clerk that either no notice of appeal was received within twenty days of approval, or if an appeal was taken, that a final judgment has been entered sustaining approval of the plan. Second, one can submit a certificate of the planning board or town clerk, dated within thirty days of recording, indicating that the approval of the subdivision plan has not been modified, amended or rescinded, nor the plan changed.

In the case at bar, the Subdivision Approval was issued on or about January 11, 2005. The Subdivision Plan and the Subdivision Approval, however, were not recorded with the Registry within six months from January 11, 2005. [Note 9] To remedy this situation, on July 13, 2010, the Planning Board "re-affirmed" the Subdivision Approval for the sole purpose of recording the Subdivision Plan and documentation at the Registry. Neither party has cited any law that prohibits a planning board from "re-affirming" an earlier in time approval for the purpose of endorsing and recording a plan.

Byerley attested that she endorsed the Subdivision Plan at some point between July 13, 2010, and October 13, 2010. On October 13, 2010, well within six months from the time of Byerley's endorsement, the Subdivision Plan was recorded with the Registry. Byerley's uncontested Affidavit indicates that she was the "authorized agent of the [Planning Board]" for purposes of endorsement of the Subdivision Plan. [Note 10] Furthermore, the Town Clerk certified on the recorded Subdivision Plan that no appeal had been taken, or, if an appeal had been taken, that a court entered a final decree sustaining approval of the plan. Johnson therefore complied with the first avenue provided for by G.L. c. 41, § 81X, by recording the endorsed Subdivision Plan (with the aforementioned certification by the Town Clerk thereon) within six months from the Re-Affirmation and subsequent endorsement of the Subdivision Plan. [Note 11]

Based on the foregoing, I find that Defendants complied with G.L. c. 41, § 81X, with respect to recording of the Subdivision Plan. [Note 12]

2. Violation of Subdivision Approval Conditions

Plaintiffs argue that the Planning Board erred in denying the Petition to Rescind because Johnson violated several conditions of the Subdivision Approval. Plaintiffs' argument in this regard raises the issue of whether the Subdivision Approval is automatically rescinded, i.e. whether the Planning Board must rescind the Subdivision Approval, if construction is not entirely consistent with the conditions of the Subdivision Approval. Defendants argue that enforcing conditions of the Subdivision Approval is a matter of discretion vested in the Planning Board, and a private citizen cannot demand enforcement. [Note 13]

The Subdivision Control Law grants a planning board the "power" to rescind its approval of a subdivision plan. G.L. c. 41, §81W. [Note 14] Similarly the Rules and Regulations governing the subdivision of land in the Town of Andover (the "Rules and Regs") state "the Board...shall have the authority to enforce the conditions of the Board's approval of the plan." Andover Bylaw, Article XIII, § 5(H)(1). Plaintiffs argue that the failure to comply with a condition of approval automatically results in rescission of the plan. In support of this position Plaintiffs cite Campanelli, Inc, v. Planning Bd. of Ipswich, 358 Mass. 798 (1970) and Costanza & Bertolino, Inc. v. Planning Bd. of North Reading, 360 Mass. 677 , 680 (1971); however, these cases can be distinguished from the case at bar.

Costanza and Campanelli both involved subdivision approvals that contained covenants stating that the approval would terminate upon the non-occurrence of a condition subsequent. In Costanza, the planning board's approval contained a covenant stating that the approval shall be rescinded unless certain construction was completed within two years from the date of approval. Furthermore, the covenant was recorded with the planning board's approval and stated that "failure to so complete shall automatically rescind approval of the plan." Costanza, 360 Mass. at 679. Similarly, in Campanelli, the subdivision approval was made in conjunction with an agreement that expressly limited the duration of the approval to the occurrence of any of three conditions. See Campanelli, 358 Mass. at 798.

In the case at bar, the conditions in the Subdivision Approval act as parameters for construction. There are no separate covenants or conditions subsequent of non-compliance, which would automatically rescind the Subdivision Approval. Cf. Costanza, supra, and Campanelli, supra. Furthermore, "planning boards [are] to have the primary responsibility for administering the subdivision control law..." Gordon v. Robinson Homes, Inc., 342 Mass. 529 , 532 (1961). A town planning board owes no duty to a private individual to enforce the terms of a covenant between the planning board and a subdivision applicant. See McGowan v. Sears, 3 LCR 24 , 1995. "The Subdivision Control Law, G.L. c. 41, Sections 81K-81GG, gives planning boards the authority to impose conditions on the construction of subdivisions...The statute does not require that the town enforce such conditions, however." Id, citing Gordon, supra at 531 (private citizen cannot enforce a bond acting as surety for compliance with conditions of subdivision approval even if conditions not satisfied).

As pronounced in McGowan and Gordon, enforcement of conditions in the Subdivision Approval is within the discretion of the Planning Board. In the case at bar, construction is not yet complete on the Subdivision Property. Defendants point out that there is no evidence that the construction, as completed, will not satisfy all conditions of the Subdivision Approval. [Note 15] More importantly, it is within the power and discretion of the Planning Board to enforce all conditions in the Subdivision Approval. Plaintiffs, however, have no private right or remedy to seek rescission of the Subdivision Approval merely because, as it exists today, construction on the Subdivision Property may not comply with all conditions of the Subdivision Approval.

Based on the foregoing, I find that the Planning Board did not abuse its discretion by refusing to rescind the Subdivision Approval.

B. Re-Affirmation

Plaintiffs argue that the Re-Affirmation was an abuse of the Planning Board's discretion because it approved a modification to the Subdivision Plan without adequate notice and public hearings. [Note 16] Defendants argue that the Re-Affirmation was limited to the narrow purpose of endorsing and recording the Subdivision Plan at the Registry and was not an approval of a new or modified definitive subdivision plan. [Note 17]

Plaintiffs argue that there are several changes to the Subdivision Plan, as evidenced by the As-Built Plan, that constitute modifications. Specifically, Plaintiffs allege that (1) the paved way on Reynolds Street is more than two feet from the eastern line of the layout of Reynolds Street, in violation of Condition 5; (2) construction began before the Special Permit for earthwork was recorded at the Registry, in violation of Condition 5; (3) Johnson installed a sewer system on the Subdivision Property rather than a septic system, in violation of Condition 8; and (4) Johnson has connected the Subdivision Property to Andover Street (a main road) by building both Reynolds Street and Anderson Avenue, in violation of Condition 6 which states that the Subdivision Approval is limited to Reynolds Street. [Note 18] [Note 19]

This court must decide whether the Re-Affirmation relates back to the Subdivision Approval or whether the Re-Affirmation is merely pretext for the Planning Board improperly approving a modification of the Subdivision Plan to accommodate the inconsistencies alleged by Plaintiffs. On July 13, 2010, the Planning Board voted to re-affirm the Subdivision Approval; it did not vote to approve the As-Built Plan. In the Certificate of Action, Materazzo stated that the vote was "for the sole purpose of recording the record plan and documentation at the Essex North Registry of Deeds," and he also made it clear that "the vote is not an affirmation that what is constructed is in accordance with the approved plan." The Petition to Rescind alludes to the documents submitted to the Planning Board on November 10, 2009, in support of the Re-Affirmation. The Petition to Rescind indicates that, other than the As-Built Plan, all documents submitted to the Planning Board on November 10, 2009, were dated prior to June 28, 2004, at least six months prior to the issuance of the Subdivision Approval. Accordingly, it appears that Johnson submitted the Subdivision Plan (dated June 28, 2004) in support of the Re-Affirmation.

Plaintiffs allege that the As-Built Plan proves that the Re-Affirmation decision was pretext for approval of a modification of the Subdivision Approval. All that the As-Built Plan shows, however, is that the construction that has taken place might not comply with all conditions contained in the Subdivision Approval. As discussed, supra, it is the Planning Board's prerogative to enforce any or all conditions in the Subdivision Approval, i.e. covenants between Johnson and the Planning Board. Moreover, the Subdivision Plan, rather than the As-Built Plan, was endorsed by the Planning Board and recorded with the Registry.

Finally, Plaintiffs' appeal of the Re-Affirmation is nothing more than an attempt to re-litigate and appeal the Subdivision Approval. One cannot "appeal a modification of a plan to revive matters unchanged by that modification and not reconsidered by the board. This is so even if the original decision of the planning board was invalid." See Sergi v. Planning Bd. of Kingston, 60 Mass. App. Ct. 918 , 919-920. Although the Re-Affirmation is not a modification of the Subdivision Plan, the same rationale applies. The Planning Board merely re-affirmed the Subdivision Plan and did not approve any changes. Plaintiffs are now seeking to re-appeal the Subdivision Approval in the context of the Re-Affirmation. This case is simply pretext and a disguised means of appealing the Subdivision Approval. Plaintiffs have already had their bite at the apple and they lost their cause at the Appeals Court. As such, this court will not entertain this appeal of the Re-Affirmation.

Based on the foregoing, I find that the Planning Board did not abuse its discretion by re-affirming the Subdivision Approval because the Re-Affirmation did not constitute a modification to the Subdivision Plan.

C. Rights in Reynolds Street:

Plaintiffs claim that Barash waived all rights in Anderson Avenue, Reynolds Street, and Eames Avenue pursuant to the Registration Case. Accordingly, Plaintiffs claim that the Re-Affirmation exceeds the Planning Board's authority because (1) Barash has no rights in Reynolds Street, which is shown as frontage for the proposed house on the Subdivision Plan; and (2) Barash and Johnson failed to comply with the Rules and Regs because neither of them can prove ownership of Reynolds Street. The discussion, supra, relating to re-litigating the appeal of the Subdivision Approval, can dispose of this argument. Plaintiffs' argument that Barash has no rights in Reynolds Street was ripe for adjudication in the initial appeal of the Subdivision Approval. Reynolds Street was included in the Subdivision Plan, and the Re-Affirmation did not amend the Subdivision Plan to incorporate Reynolds Street. Accordingly, Plaintiff cannot appeal the Re-Affirmation on this ground because the Reynolds Street issues did not arise in the context of a modification, i.e. a new addition to the Subdivision Plan. See Sergi, supra, at 919.

Based on the foregoing, I find that the Planning Board did not exceed its authority in re-affirming the Subdivision Approval on the grounds that Barash has no rights in Reynolds Street. Accordingly, Plaintiffs' Motion for Summary Judgment is DENIED and Defendants' Motion for Summary Judgment is ALLOWED.

Judgment to enter accordingly.