JAMES BABCOCK and DONALD DERBY v. CRAIG SWEITZER, KAREN KING, KEVIN HALEY, PAUL HATCH, and TARA HENGEVELD, as they are All of the members of the TOWN OF MONSON, MASSACHUSETTS PLANNING BOARD, and TOWN OF MONSON.

INTRODUCTION

This case concerns the Plaintiffs’ attempt to access their two lots from a public way via a common driveway. In Count I of the Complaint, the Plaintiffs James Babcock and Donald Derby appeal, pursuant to G.L. c. 40A, § 17, from a decision of the Town of Monson Planning Board (the “Planning Board”), dated September 26, 2012, which denied Plaintiff Babcock’s application for a common access driveway special permit (the “Decision”). The Plaintiffs claim that the Decision exceeded the Planning Board’s authority and was arbitrary and capricious because the denial was based solely on the fact that the owner of one of the three lots to be served by the proposed common access driveway [Note 1] was not a party to the proposed Common Driveway Maintenance Covenant submitted in connection with the special permit application – a factor which the Plaintiffs allege is not a proper basis for denial of a common access driveway special permit under the Town of Monson Zoning By-law (the “By-law”).

In Count II of the Complaint, the Plaintiffs request a declaration under G.L. c.240, § 14A that § 6.21.3(2) of the By-law, which requires that the owners of lots served by a common driveway be members of a maintenance association and enter into a maintenance agreement, is unreasonable and invalid as applied to the Plaintiffs’ lots because it precludes them from constructing single-family residences on their lots, without serving legitimate By-law purposes.

Lastly, in Count III of the Complaint, the Plaintiffs seek a further G.L. c. 240, § 14A declaration that a single family residence may be constructed on each of the Plaintiffs’ Lots as a matter of right, and that to the extent the By-law does not permit such construction on lots served by a right of way over a servient estate, it is unreasonable as applied.

On May 10, 2013, the Plaintiffs filed their Motion for Summary Judgment on all counts of the Complaint. On June 17, 2013 the Defendants filed their Opposition. Following a hearing on the Plaintiffs’ Motion, and the court’s receipt of a complete copy of the By-law, the Motion was taken under advisement on September 13, 2013.

Now, for the reasons discussed below, this court finds that the Plaintiffs have failed to demonstrate that the Planning Board exceeded its authority when it denied Babcock’s special permit application. Therefore, where the summary judgment record demonstrates that Babcock’s common access driveway application did not fully comply with all of the pertinent By-law requirements, the Planning Board is entitled as non-moving party to the entry of summary judgment dismissing the Plaintiffs’ G.L. c. 40A, § 17 appeal under Count I. Further, this court finds that the Plaintiffs have failed to establish sufficient undisputed material facts to overcome the presumption of validity accorded to the By-law as applied to their lots. The Plaintiffs have also failed to establish that single-family dwellings may be constructed on their respective lots as a matter of right under the By-law.

UNDISPUTED MATERIAL FACTS

The summary judgment record reveals the following, undisputed material facts:

1. Plaintiff James Babcock is the record owner [Note 2] of vacant land shown as Lot 8 on a “Plan of Land in Monson, Mass. Surveyed for Dennis R. Tessier July 7, 1980,” last revised August 12, 1980 (the “Plan”). According to the Plan, Lot 8 contains 30.62 acres of land, and has 50.37 feet of frontage on Hovey Road, a public way.

2. The Plan, which shows eight (8) lots with frontage on Hovey Road, was endorsed by the Planning Board as “subdivision approval not required” on August 20, 1980.

3. Plaintiff Donald Derby is the record owner [Note 3] of vacant land shown as Lot 7 on the Plan. According to the Plan, Lot 7 contains 27.64 acres of land, and has 50.36 feet of frontage on Hovey Road.

4. Cheryl A. Pereira is the record owner of Lot 9. As shown on the Plan, Lot 9 contains 37.144 acres of land, and has 52.66 feet of frontage on Hovey Road. A single family house is located on Lot 9. Pereira is not a party to this action.

5. Pursuant to a deed from Roslyn Ryan to John E. Ryan and Donald R. Derby, dated June 20, 1997 and recorded in the Registry at Book 9922, Page 347, Lot 9 is encumbered by an easement benefiting Lot 7 and Lot 8. Said deed describes the easement as “[a] right of way for all purposes for which a public way may be used over and across Lot 9 (nine) [on the Plan] for the several benefit of the owners and occupants of Lots 7 (seven) and 8 (eight) on said Plan: the dominant estates.” (the “Right of Way Easement”) [Emphasis added].

6. As described in Schedule A of the Roslyn deed, the Right of Way Easement is 52.66 feet in width, and runs across Lot 9 for a distance of approximately 1400 feet from Hovey Road to the southwest lot line of Lot 8.

7. On April 30, 2012, Plaintiff Babcock submitted a special permit application to the Planning Board for a Common Access Driveway across Lots 9 and 8, to serve as access from Hovey Road to Lot 8 and Lot 7. The portion of the proposed Common Access Driveway crossing Lot 9 was located within the Right of Way Easement.

8. Pursuant to § 1.7 of the By-law, “Common Access Driveway” is defined as:

A driveway/curb cut shared by not more than 4 lots, such that each lot has approved frontage on an existing public way, maintained by the Town, with the required lot width, as defined in Section 6.21.2, has access obtained through the common use of a private driveway designed according to the standards for construction of shared driveways in Monson, and as shown on a plan prepared by a Registered Land Surveyor, with parcel description, suitable for recording at the Hampden County Registry of Deeds.

9. Special Permits for Common Access Driveways are governed by § 6.21 of the By-law. Section 6.21.2 sets forth four (4) standards for common access driveways. These standards include: (1) a requirement that “[e]ach lot must have adequate approved legal frontage on an existing way, or an approved estate lot, with the required lot width…;” [Note 4] (2) a requirement that the “distance of the common driveway measured from the street line to the last lot line” shall not exceed 700 feet unless a waiver is granted in accordance with §6.21.6.1; (3) a requirement that the driveway be located entirely within the boundaries of the lots to which the driveway provides access and is separated from other lots by a landscaped buffer; and (4) a requirement that the benefitted parcels must have permanent access to the common driveway by easements recorded in the Registry.

10. Section 6.21.3 of the By-law is entitled “Application Requirements.” Subsection 6.21.3 (1) requires the submission of detailed plans, prepared by a registered engineer, meeting nine (9) specifications described in paragraphs (a) through (i). Subsection 6.21.3(2) requires:

Any deeds of ownership of lots served by a common driveway shall require that the owners of said lots must be members of a maintenance association, whose purpose is to provide for maintenance of the common driveway, which shall include, but not be limited to, snow plowing, maintaining driveway design specifications, and stormwater drainage systems. An association agreement or covenant shall be submitted with the Special Permit Application guaranteeing the continuing maintenance expenses. Such agreement shall be subject to review and approval by Town Counsel and the Planning Board as part of the Special Permit, and shall be recorded in the Hampden County Registry of Deeds. The deed to each lot served on a Common Driveway must reference this Maintenance Association Agreement.

[Emphasis added].

11. Section 6.21.5 of the By-law states that:

In granting a special permit for a common drive, the Planning Board shall impose a condition prohibiting the lot owners from petitioning for acceptance of the common drive as a public way.

12. The Planning Board held public hearings on Babcock’s special permit application on June 19, 2012, July 17, 2012, and September 18, 2012.

13. The common access driveway plan submitted with Babcock’s special permit application showed the proposed driveway extending over Lot 9 and Lot 8 approximately 2400 feet from Hovey Road to Lot 7, and the application included a request for several waivers of the design standards, including a waiver from the 700- foot length of driveway limit.

14. At the Planning Board’s July 17, 2012 public hearing, Babcock submitted a revised common driveway plan, eliminating all the requested design waivers except for the length of driveway waiver, and indicating Babcock’s intention to move the property line between Lot 7 and Lot 8 in order to shorten the total length of the proposed driveway to approximately 1950 feet.

15. According to Babcock’s revised driveway plan, the proposed common access driveway would extend over the Right of Way Easement as it crosses Lot 9, for a distance of approximately 1400 feet from Hovey Road to Lot 8, and would include the portion of the Right of Way Easement over which Lot 9’s existing driveway is located.

16. The proposed Common Driveway Maintenance Covenant submitted with Babcock’s special permit application (the “Proposed Covenant”) recites an agreement only between Babcock as the owner of Lot 8 and Derby as the owner of Lot 7. Under the terms of the Proposed Covenant, Babcock and Derby jointly agree for themselves and their successors and assigns to maintain the common driveway over Lots 8 and 9, while Derby agrees to maintain the common driveway to the extent it passes over Lot 7. Paragraph (e) of the Proposed Covenant provides that it is to be recorded in the Registry and noted on the deeds for Lot 7 and Lot 8.

17. The Planning Board’s Decision was filed with the Monson Town Clerk on September 26, 2012.

18. The Planning Board denied Babcock’s special permit application because not all of the owners of the lots to be served by the proposed common driveway were parties to the Proposed Covenant. [Note 5]

19. Lots 7, 8, and 9 are all located in a “Rural Residential” (“RR”) zoning district.

20. According to the By-law’s Table 1 “Schedule of Use Regulations,” single-family detached dwelling use is permitted by right in the RR district. Also according to Table 1, “estate lots” are allowed in the RR District by special permit, “subject to restrictions in Section 6.5.” [Note 6]

21. Pursuant to Section 3.1 of the By-law, uses permitted by right and uses allowed by special permit must be “in conformity with all density and dimensional regulations and any other pertinent requirements of [the] Bylaw.”

22. Table 2 of the By-law is entitled “Dimensional and Density Regulations.” According to Table 2, the minimum lot area for “any permitted use” in the RR District is 60,000 square feet and the minimum frontage for “any permitted use” is 200 feet. Thus, a lot for a single family detached dwelling (a use permitted in the RR district by right) must be at least 60,000 square feet in area and have at least 200 feet of frontage. Neither Lot 7 nor Lot 8 meets the 200-foot minimum frontage requirement for a by- right single family residential use specified in Table 2.

23. Lot 7 and Lot 8 each have more than 10 acres and more than 40 feet of frontage.

24. Pursuant to Table 2 of the By-law, so called “estate lots” in the RR district must have an area of at least 10 acres, and frontage of at least 40 feet. [Note 7]

25. “Driveway” is defined in § 1.7 of the By-law, in pertinent part, as

That portion of a parcel of land on private property designated by the property owner as the vehicle access from a street to parking or garage areas on private property…. The driveway access shall occur across the minimum frontage required in the Zoning District in which the frontage is located.

[Emphasis added].

26. On August 3, 1994, the Town of Monson Conservation Commission denied an order of conditions for construction of an access driveway through Lot 7’s Hovey Road frontage. [Note 8]

DISCUSSION

“Summary judgment is appropriate where there is no genuine issue of material fact and, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” Opara v. Mass. Mutual Life Ins. Co., 441 Mass. 539 , 544 (2004). In moving for summary judgment, a party is required to first demonstrate by reference to the pleadings, depositions, answers to interrogatories, admissions, or affidavits that there are no genuine issues of material fact, and to further demonstrate entitlement to judgment on those undisputed facts as a matter of law. Ng Brothers Construction, Inc. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). When appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56 (c). As discussed below, the Plaintiffs have not met their summary judgment burdens and, on the basis of the undisputed facts, summary judgment shall enter against them as the moving parties.

Count I - The G.L. c. 40A, § 17 Appeal

In order to prevail on their Motion for Summary Judgment with respect to the Count I zoning appeal, it was the Plaintiffs’ burden to establish sufficient material facts to demonstrate that the challenged special permit denial exceeded the Planning Board’s authority as a matter of law. They did not meet this burden. Moreover, viewing the evidence in the light most favorable to the Planning Board as nonmoving party, the material facts demonstrate, instead, that the Defendant Planning Board is entitled to entry of summary judgment upholding its Decision.

A special permit granting authority exceeds its authority when its decision is either legally untenable or arbitrary and capricious. Thus, a judge’s review of a zoning decision denying zoning relief normally involves two levels of inquiry. The first inquiry requires a legal analysis of the local board’s decision to determine whether it was based upon a standard or criterion not permitted by the applicable statutes or by-laws and, therefore, legally untenable. If the decision was based upon a legally tenable ground, then the judge next proceeds with the second inquiry to determine whether any rational view of facts supports the board’s conclusion that the applicant has failed to meet one or more of the relevant criteria for the grant of relief. Sedelle v. Zoning Board of Appeals of Carver, 74 Mass. App. Ct. 450 , 453 (2009).

Here, the Plaintiffs argue, first, that the Planning Board’s denial of Babcock’s special permit application is legally untenable because it is based on a misinterpretation of § 6.21.3(2). Alternatively, the Plaintiffs argue that, by virtue of the Right of Way Easement, they are entitled to improve, use, and maintain the proposed common access driveway within the limits of the Easement without further agreement from the owner of Lot 9 and, therefore, the Proposed Covenant (obligating the owners of Lots 7 and 8 for all maintenance of the common driveway) satisfies the purposes of the By-law. The Plaintiffs contend, therefore, that the Planning Board’s refusal to accept the alternative maintenance arrangement was arbitrary and unreasonable in the circumstances. As discussed below, the undisputed facts do not support judgment in favor of the Plaintiffs under either alternative theory.

The Planning Board’s Decision is legally untenable. In determining whether a local board has based its decision on a legally untenable ground, the reviewing judge examines the applicable statutes and by-laws and decides whether, in making its decision, the local board has chosen the correct criteria and standards from these sources. Shirley Wayside Limited Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 474 (2012). Here, I find that the Planning Board’s Decision denying Babcock’s special permit application was based upon a legally tenable ground – non-compliance with § 6.21.3(2) of the By-law.

The Planning Board’s written Decision includes the record of the Board’s proceedings, consisting of a list of the documents submitted to the Planning Board by the applicant, the minutes of the three public hearings, and a record of the vote taken. The recorded vote itself is cryptic (“The Board voted to deny the special permit for a common access driveway at 269 Hovey Road for James Babcock based on the opinion of Special Counsel Mark E. Draper, Esq.”). However, the record of proceedings paraphrases the referenced legal opinion, and the Parties are in agreement that the Board’s reason for denial was the fact that not all of the owners of the lots to be served by the proposed common driveway would be parties to the maintenance agreement required under By-law § 6.21.3(2).

Section 6.21.3(2) provides as follows:

Any deeds of ownership of lots served by a common driveway shall require that the owners of said lots must be members of a maintenance association, whose purpose is to provide for maintenance of the common driveway…. The deed to each lot served on a Common Driveway must reference this Maintenance Association Agreement.

As interpreted by the Planning Board, § 6.21.3(2) requires that the owners of all of the lots served by a common driveway participate in the common driveway maintenance association agreement and be members of the maintenance association. The Planning Board’s interpretation is a reasonable one, entitled to the court’s deference. See Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374 (2009) (reviewing judge must give substantial deference to a local board’s interpretation of its zoning by-law). Moreover, I find the Planning Board’s interpretation to be entirely consistent with the purposes and unambiguous language of the By-law.

For example, § 6.21.3(1)(h) specifies that the application for a common driveway special permit must include easements, covenants and agreements for the “subject lots” that: (a) contain restrictions prohibiting any additional vehicular access to said lots from other than the common driveway approved by the special permit, (b) state that the common driveway is a private driveway, not open to public use, and not a town way, and (c) make the maintenance, operations, repair, and reconstruction of the driveway the responsibility and liability of the lot owners. It is clear from its context that the term “subjects lots,” as used in § 6.21.3(1)(h) refers to all of the lots which will be served by the common access driveway, since the failure to include the specified restrictions and obligations in the deeds of all the lots to be served would defeat the By-law’s stated intentions that use of the common driveway be limited to private access, that the town have no obligations with respect to the common driveway, and that the common driveway serve as the only vehicular access to the lots. [Note 9] Similarly, all of the lots to be served by the common driveway must necessarily participate in the maintenance association and agreement required under § 6.21.3(2) in order to ensure enforceability.

Babcock’s Proposed Covenant does not involve all of the lots to be served and does not provide for all (or any) of the lot owners to be members of a maintenance association. Also contrary to the requirements of § 6.21.3(2), Babcock’s Proposed Covenant provides that it be referenced only on the Lot 7 and Lot 8 deeds. As a result, the Proposed Covenant would be neither enforceable by, nor enforceable against the owner of Lot 9, although Lot 9 would be served by the proposed driveway.

I reject the Plaintiffs’ argument that it was unnecessary for the owner of Lot 9 to be a party to the Proposed Covenant in light of the Plaintiffs’ rights under the Right of Way Easement to construct and maintain access to their Lots, and in light of their willingness to undertake the full maintenance responsibility for the common driveway. In making this argument, Plaintiffs ignore the fact that the Right of Way Easement is expressly granted for all purposes for which public ways are used in the Town – purposes which directly conflict with the express requirement of the By-law that common access driveways be restricted to private use serving only the subject lots. See § 6.21.3(1) (h). The Proposed Covenant does not alter the Plaintiffs’ broader rights under the Right of Way Easement, and does not purport to impose the “private use” restrictions required under the By-law. [Note 10]

In summary, because Babcock’s application failed to include a proposed maintenance agreement which would subject all three of the lots to the mutual covenants and agreements required under the By-law, it did not satisfy the requirements of § 6.21.3 (2), as reasonably interpreted by the Planning Board. Accordingly, I find that the denial of Babcock’s special permit application was based on a legally tenable ground.

The Planning Board’s Decision was not arbitrary or capricious. The Plaintiffs next argue that, even if the Planning Board’s interpretation of the By-law is not in error, it was arbitrary, capricious and unreasonable to deny Babcock’s special permit application in the circumstances, particularly where any nonconformance with the requirements of § 6.21.3 (2) was “de minimus.” This argument fails as a matter of law.

To start with, Babcock’s application was one for a special permit. It is well- settled that no one has an absolute right to a special permit. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 638-639 (1970). Further, a special permit granting authority may not grant a special permit unless it finds that the use is “in harmony with the general purpose and intent of the … by-law,” and makes any additional findings required by the by-law. G.L. c. 40A, § 9.

Here, for the reasons discussed above, the Board was unable to make a finding that Babcock’s application met all the requirements of the By-law. And, although the By-law expressly authorizes the Planning Board to waive the dimensional and design standards for common driveways, the Board was not authorized under the By-law to waive or modify the requirements of § 6.21.3(2) in order to accommodate Plaintiffs’ particular circumstances. Cf. Davenport v. Planning Board of Dennis, 76 Mass. App. Ct. 221 (2010) (ruling that the express discretion to waive minimum lot area did not give the planning board the authority to waive lot width and frontage requirements). Even if the Board had the discretion to waive the requirements, however, it is the Planning Board’s evaluation of the seriousness of the deficiency – not the court’s – which is controlling. Doherty v. Planning Board of Scituate, 467 Mass. 560 , 566-567 (2013), Britton v. Zoning Board of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 74 (2003) (the determination of whether a local board’s decision is arbitrary is highly deferential to the board, based on whether any rational board could conclude otherwise.)

Here, Babcock’s special permit application was not only technically inconsistent with the By-law submission requirements, but it was also inconsistent with the express purposes of those requirements in that failure to have all three lot owners agree to the maintenance covenant would make the terms and conditions of a common driveway special permit, and the By-law on which it is based, unenforceable with respect to at least one of the three lots to be served by the common driveway. Given these circumstances, it was neither arbitrary nor capricious for the Planning Board to deny Babcock’s application.

Accordingly, as I find that the Planning Board did not exceed its authority, summary judgment shall enter against the Plaintiffs under Count I, dismissing their G.L. c. 40A, § 17 appeal.

Count II

In moving for summary judgment under Count II, Plaintiffs contend that, even if the Planning Board did not exceed its authority in denying Babcock’s special permit for failure to comply with § 6.21.3(2), enforcement of the By-law requirement that all of the lot owners served by the common driveway must participate in the maintenance agreement is arbitrary, unreasonable and oppressive in the circumstances, rendering said By-law invalid as applied to the Plaintiffs’ Lots. They seek a judicial declaration to that effect. Plaintiffs, however, have failed to establish entitlement to such declaration, as a matter of law.

A zoning bylaw is afforded every presumption of validity, “and if its reasonableness is fairly debatable the judgment of the local authorities who gave it its being will prevail.” MacNeil v. Town of Avon, 386 Mass. 339 , 341 (1982) (quoting Turnpike Realty Co. v. Dedham, 362 Mass. 221 , 233 (1972)). Although valid generally, a zoning by-law may nevertheless be “unconstitutional as applied” to a particular parcel of land when, due to peculiarities of the parcel, application of the by-law is unnecessary to accomplish the public purpose for which the by-law was created. In order for a local zoning regulation to be found invalid as applied, the party challenging the provision must prove, by a preponderance of the evidence, both: (1) that the zoning regulation itself is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare; and (2) that the application of the regulation results in significant injury to the owner’s interest in the property. See Amberwood Development Corp. v. Bd. of Appeals of Boxford, 65 Mass. App. Ct. 205 , 209-210 (2005) (explaining the two part analysis to be applied when reviewing the validity of a local zoning ordinance under G.L. c. 240, § 14A); See also Johnson v. Town of Edgartown, 425 Mass. 117 , 121 (1997) (the by-law challenger’s burden of proof is by a “preponderance of the evidence”).

Plaintiffs’ single paragraph, summary judgment argument fails to articulate any factual or legal basis to support their claim that strict application of the § 6.21.3(2) requirements to the Plaintiffs’ Lots is unreasonable or otherwise fails to promote valid purposes of the Bylaw. Plaintiffs do not suggest that either Lot 7 or Lot 8 has any physical peculiarities which make application of § 6.21.3(2) unnecessary to accomplish the purposes of the By-law. The Plaintiffs merely assert that, absent a special permit for a common access driveway over Lot 9, they will be unable to access Lots 7 and 8 and, therefore, will be unable to use their Lots for “by-right” single-family residences. The undisputed facts are insufficient to support their assertion, however.

Section 6.21.3(2) requires that the owners of all of the lots served by the common driveway become members of a maintenance association, and reach an agreement “guaranteeing the continuing maintenance expenses.” It also requires that the maintenance agreement be memorialized and referenced on deeds of the lots to be served. The Plaintiffs do not suggest that these requirements are in themselves unreasonable, or are unrelated to valid zoning purposes. Rather, they argue that in circumstances where one of the three lot owners refuses to participate in the maintenance agreement, the alternative maintenance arrangement embodied in the Proposed Covenant is sufficient to accomplish the By-law’s purpose, thus making § 6.21.3(2) invalid as applied.

This argument is unavailing. It matters not that the Plaintiffs’ proposal might provide an alternative means of guaranteeing maintenance expenses. While the Town, in enacting the common driveway special permit provisions, could have provided for alternatives to the maintenance arrangement described in § 6.21.3(2), it did not. There is no legal support for Plaintiffs’ contention that a by-law is unconstitutional if it fails to allow a special permit applicant the option to unilaterally alter a legislatively enacted requirement. Whenever special permit standards are set in a zoning by-law, “lines must be drawn somewhere.” MacNeil v. Town of Avon, 386 Mass. 339 , 342-343 (1982).

Plaintiffs have also failed to demonstrate that they will suffer any injury to their property interests through strict application of § 6.21.3(2). In particular, there is no evidence compelling the conclusion that Lots 7 and 8 will not be accessible for by-right, single family dwelling use if application of the subject By-law requirement bars issuance of a common driveway special permit.

In an attempt to show that the proposed common access driveway is the only viable option for accessing Lots 7 and 8, the Plaintiffs submitted: (1) an unauthenticated document which purports to be a site plan created in 1994, indicating the location of wetlands on Lot 7; (2) a photo copy of a 1994 Order of Conditions from the Town of Monson Conservation Commission, denying Plaintiff Derby authorization to fill wetlands on Lot 7 for the construction of a driveway; and (3) an Affidavit of Donald J. Frydryk, an engineer and land surveyor, positing his opinion that Lots 7 and 8 contain wetlands and that the proposed common access driveway would provide “a less destructive access to the property than the [proposed 1994 driveway].” According to his Affidavit, Frydryk’s opinion is based solely on his review of the 1994 site plan, the 1994 Order of Conditions decision, and the proposed common access driveway plans Babcock presented to the Planning Board. [Note 11]

There are, however, no facts in the summary judgment record with respect to the current wetlands conditions on Lots 7 and 8. But more importantly, even a showing that construction of driveways through the frontages of the two Lots would involve wetlands crossings under present day conditions, would not compel a conclusion that such access is precluded under wetlands laws. The Conservation Commission’s refusal, in 1994, to permit a proposed wetlands crossing for Lot 7 is certainly not evidence that either or both of the Plaintiffs would be denied permission to construct driveways through their respective Lot frontages twenty years later.

Nor does the summary judgment record contain any evidence that either of the Plaintiffs have recently and unsuccessfully attempted to gain approvals for other means of access to their Lots. Indeed, the Right of Way Easement expressly allows the Plaintiffs’ use of the 50-foot-wide Right of Way “for all purposes for which public ways are used in the Town of Monson.” Yet, there is no suggestion that either Plaintiff has sought, but been refused, approval to lay out and construct either a public or private roadway over the Right of Way Easement to provide frontage and access for their two Lots.

Therefore, as the undisputed facts are insufficient to lead this court to find either that application of the By-law is unreasonable due to peculiarities of the Plaintiffs’ Lots, or that application of § 6.21.3(2) causes “significant injury” to the Plaintiffs’ respective property interests by preventing access to Lots 7 and 8, summary judgment shall enter against the Plaintiffs as moving parties, declaring that said By-law is not invalid as applied to Lots 7 and 8.

Count III

Count III of the Complaint makes only general allegations that “Lots 8 and 7 each meet the dimensional requirements for the construction of a single family home as of right,” and seeks “a declaration that each [of the Plaintiffs] is entitled to construct a single family home on his lot as of right.” Although the Complaint does not mention any particular provisions of the By-law (other than § 6.21.3(2)), Plaintiffs, through their Summary Judgment Motion, now seek more specific relief in the nature of declaratory judgments: (1) that any By-law requirement that individual driveway access occur only across the lot frontage is not enforceable with respect to Lots 7 and 8 because enforcement would be “arbitrary, unreasonable, oppressive and would deprive Derby and Babcock of the beneficial use of their land;” and (2) that Lots 7 and 8 are “qualified as estate lots” on which single family residences may be built as of right, served by access over the Right of Way easement. Once again, the Plaintiffs’ Motion for Summary Judgment falls far short of establishing their entitlement to judgment as a matter of law.

The first part of the Plaintiffs’ Count III summary judgment argument focuses entirely on the last sentence of the Monson Zoning By-law § 1.7 definition of “Driveway.” [Note 12] That sentence states: “[t]he driveway access shall occur across the minimum frontage required in the Zoning District in which the frontage is located.” The Plaintiffs, however, have presented no facts demonstrating that this By-law provision is substantially unrelated to any valid purposes of the Bylaw. Instead, the Plaintiffs posit only conclusory assertions that application of the requirement is arbitrary, unreasonable, oppressive, and deprives them of the beneficial use of their land. As a result, the burden did not shift to the Defendant Town to articulate the valid zoning interests to be protected by § 1.7.

Moreover, the injury which Plaintiffs claim is caused by application of the frontage access requirements in § 1.7 is predicated on two unsupported contentions – first, that driveway access across the frontages of each of Lots 7 and 8 is unattainable due to wetlands conditions on the front portions of those two Lots; and second, that despite the fact that neither Lot 7 nor Lot 8 have the minimum 200 feet of frontage normally required for single-family lots in the RR District, single family dwellings may be constructed upon Lots 7 and 8, by right, because said Lots “qualify” under the By-law as “estate lots.”

As to the first contention, as discussed with respect to Plaintiffs’ Count II summary judgment motion, there is nothing in the summary judgment record to support the Plaintiffs’ claim that they are unable to construct driveways across their respective Lot frontages due to wetlands. With respect to the second contention, the summary judgment record does not establish that Plaintiffs’ Lots presently qualify as estate lots under the By-law; it establishes the contrary. And the record is otherwise devoid of any facts which might support a declaration that single family houses may be constructed on Lot 7 and Lot 8 as a matter of right.

According to the By-law’s Table 1 “Schedule of Use Regulations,” a single- family detached dwelling use is a use permitted by right in the RR district in which Lots 7 and 8 are located. But, pursuant to Section 3.1 of the By-law, all permitted uses must be “in conformity with all density and dimensional regulations and any other pertinent requirements of [the] Bylaw.” It is undisputed that neither Lot 7 nor Lot 8 has the minimum 200 feet of frontage normally required for lots in the RR District. Moreover, the Plaintiffs make no claim that their Lots are protected under G.L. c. 40A § 6 from application of the 200-foot minimum frontage requirement. Rather, their argument relies solely on the undisputed fact that each of the two Lots meets the minimum area and frontage requirements for estate lots as set forth in the Table 2 schedule, “Density and Dimensional Regulations.” [Note 13]

The Plaintiffs’ argument misconstrues the By-law. According to Table 1 of the By-law, “estate lots” may be allowed in the RR District only by special permit, “subject to restrictions in Section 6.5.” The stated purpose of § 6.5 is to allow “for the creation of lots for single-family dwelling units” with less than the required frontage in exchange for increased lot area. Section 6.5 then goes on to set out specific standards and requirements for the creation of estate lots through the grant of a special permit and, ultimately, the endorsement of a plan under the subdivision control law depicting both the estate lot and the lot from which it was created. See § 6.5.10 and § 6.5.11 of the By-law.

While it is undisputed that Lot 7 and Lot 8 each have area and frontage which would satisfy the By-law’s minimum dimensional requirements for estate lots, there is nothing in the summary judgment record to show that Lots 7 and 8 were ever created as estate lots pursuant to a special permit authorized under § 6.5 of the By-law. There is also nothing in the summary judgment record to demonstrate that Lots 7 and 8 could meet the several standards for a special permit under § 6.5 if application were made.

Based on the foregoing, the Plaintiffs are not entitled to the declaratory relief they seek. Instead, summary judgment shall enter declaring: (1) that the § 1.7 definition of “Driveway” is not invalid as applied to individual access driveways serving Lots 7 and 8; and (2) that Lots 7 and 8 are not presently qualified as estate lots under § 6.5 of the Monson Zoning By-law.

Judgment to enter in accordance with this Memorandum and Decision.