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.

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 21, 2014, this court issued a Memorandum and Decision on Plaintiffs’ Motion for Summary Judgment, in which the court found on the basis of the undisputed facts in the summary judgment record that summary judgment should enter as a matter of law as follows:. Accordingly, it is:

ADJUDGED and DECLARED that the Defendant Monson Planning Board’s Decision denying Plaintiff Babcock’s application for a common access driveway special permit was not in excess of that Board’s authority; and it is further

ADJUDGED, DECLARED, and ORDERED that Count I of the Plaintiffs’ Complaint is hereby DISMISSED; and it is further

ADJUDGED and DECLARED that Section 6.21.3(2) of the Monson Zoning By-law is not invalid as applied to Plaintiffs’ Lots 7 and 8; and it is further

ADJUDGED and DECLARED that the Monson Zoning By-law Section 7.1 definition of “Driveway” is not invalid as applied to individual access driveways serving Plaintiffs’ Lots 7 and 8; and it is further

ADJUDGED and DECLARED that Lots 7 and 8 are not presently qualified as “estate lots” under § 6.5 of the Monson Zoning By-law

So Ordered.