Plaintiffs filed their 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. A decision of today's date has been issued (the "Decision"). In accordance with the Decision it is hereby:
ORDERED and ADJUDGED that Defendants complied with G.L. c. 41, § 81X, with respect to recording of a plan entitled "Reynolds Street" dated June 28, 2004, and prepared by Land Engineering & Environmental Services, LLC (the "Subdivision Plan"). [Note 1]
ORDERED and ADJUDGED that the Planning Board did not abuse its discretion by refusing to rescind the Subdivision Approval.
ORDERED and ADJUDGED 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.
ORDERED and ADJUDGED 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.
ORDERED and ADJUDGED that Plaintiffs' Motion for Summary Judgment is DENIED and Defendants' Motion for Summary Judgment is ALLOWED.
So ordered.
By the court. (Sands, J.)
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