DEWITT P. DAVENPORT, AS TRUSTEE OF THE DAVENPORT REALTY TRUST v. DENNISPORT PARTNERS, LLC; ROBERT MEZZADRI, JUDITH DeMARCO, DORRIA DiMANNO, JEFFREY ELDREDGE, LOUIS MALZONE, and ELIZABETH NASHAWATY, as the Planning Board of the Town of Dennis; and THE TOWN OF DENNIS.

This case involves Plaintiff’s seeking a declaratory judgment on the status of Elkannah Howland Road (the “Road”) and an appeal of a decision (“Planning Board Decision 2”) of Defendant Dennis Planning Board (the “Planning Board”) (together with Defendant Town of Dennis, “Municipal Defendants”) dated November 17, 2011, which issued a special permit (“Special Permit 2”) to Defendant Dennisport Partners, LLC (“Dennisport”) (together with the Planning Board and the Town of Dennis, “Defendants”) to build an eighteen unit municipally sponsored housing project (the “Project”). By decision dated December 20, 2013, this court found that res judicata (relative to a case filed in the Barnstable Superior Court involving a decision of the Planning Board (“Planning Board Decision 1”) dated March 22, 2006, which approved a different special permit) did not apply to the case at bar relative to the status of the Road; that the Road was properly laid out and accepted by the Town as a public way in 1846; that the relevant portion of the Road (between Great Western Road and Searsville Road) was located on the ground as depicted on Chalk A, and provided frontage for property located at Parcel 63, Searsville Road; that the Road provided adequate frontage for the Project; that the Project met the maximum building coverage requirement of 15% of the lot; that Terrance Hayes (the Dennis Health director) had the authority to act on behalf of the Board of Health and make a recommendation to the Planning Board pursuant to section 4.9.2.4.1c of the Dennis Zoning By-law; but that the Planning Board exceeded its authority in approving the Project and issuing Special Permit 2 with a density greater than 10,000 square feet per bedroom because there was no valid recommendation from the Board of Health. [Note 1] This court remanded that issue to the Planning Board “for a proper recommendation from the Board of Health, if such recommendation is appropriate, that the waste water system for the Project meets all state and local environmental standards for the protection of public health and water quality, in accordance with Section 4.9.2.4.2.c of the By-law.

By decision dated March 3, 2014, the Planning Board voted

On March 3, 2014, after reviewing the Board of Health’s January 9, 2014 recommendation, under Zoning By-law § 4.9.2.4.2.c, and aafter allowing the public and interested parties a full opportunity to comment on the recommendation of the Board of Health and the April 27, 2012 plan that the recommendation of the Board of Health was based upon, the Planning Board voted: 6 to 0 (Mezzadri [Chair], DiManno, Farmer, Patterson, Eldredge and Clancy [alt]) to amend the Planning Board’s November 17, 2011 Special Permit Decision so as to incorporate the following new paragraph therein:

On March 3, 2014, following the December 20, 2013 remand order of the Land Court in litigation known as Davenport, et al. V. Dennisport Partners, LLC, et al., Land Court 2011 MISC 456318-AHS, the Planning Board voted to accept the Board of Health’s January 9, 2014 recommendation under Zoning By-law § 4.9.2.4.2.c, that the Project be allowed to have a maximum density of the tract to be developed that is greater than one bedroom per 10,000 square feet of land area, because the wastewater system for the site, which is shown on a plan, dated April 27, 2012, meets all state and local environmental standards for the protection of public health and water quality.

On March 6, 2014, Plaintiff filed his Motion to File Supplemental Complaint and Stay Entry of Judgment, in which it challenged the Board of Health recommendation and the involvement of the Town in the Project. Dennisport filed its Opposition on March 26, 2014. The Municipal Defendants filed their Opposition on April 7, 2014. A hearing was held on the Motion on April 8, 2014, and the matter was taken under advisement.

Board of Health recommendation.

Plaintiff claims that on October 12, 2012, the Board of Health granted six Disposal System Construction Permits.

As a result of the foregoing, I DENY Defendant’s Motion to Request Relief.

So ordered.