COUNTRY PLACES DEVELOPMENT, LLC, JONATHAN WEBBER, AND DAVID WEBBER v. TOWN OF MIDDLETON, AND JOHN KNOTT, DAVID T. LEARY, SR., CHRISTINE M. LINDBERG, ROBERT ALDENBERG, BEVERLY A. POPIEISKI, AND LEAH MORESCHI AS THEY CONSTITUTE THE MEMBERS OF THE TOWN OF MIDDLETON PLANNING BOARD.

The Plaintiffs filed their four-count Complaint on June 7, 2013, seeking to invalidate a decision of the Defendant Middleton Planning Board (“the Board”) which denied the Plaintiffs’ proposed roadway improvement plan. The plan, entitled “Roadway Improvement Plan for Old East Street in Middleton, Mass.” (the “Improvement Plan”) was submitted to the Board on March 28, 2013, pursuant to a set of regulations entitled “Providing Adequate Access to Existing Lots.” The Board voted on May 8, 2013 to deny the Improvement Plan. The Board’s written decision, “Certificate of Vote Denial of Roadway Improvement Plan To Provide Adequate Access to Lots On Old East Street,” was filed with the Middleton Town Clerk on May 22, 2013.

The Plaintiffs, Country Places Development, LLC, Jonathan Webber, and David Webber, are the disappointed Improvement Plan applicants. Count I of the Plaintiffs’ Complaint seeks judicial review of the Denial “in the nature of certiorari” under G.L. c. 249, § 4. In Count II, the Plaintiffs request declaratory judgments under G.L. c. 231A that the Board exceeded its authority, that Old East Street is a way existing prior to the Town’s adoption of subdivision control, and that the Improvement Plan complies with the Board’s regulations. In Count III, the Plaintiffs appeal the Board’s decision under Section 81-Y of the Subdivision Control Law [Note 1] and seek the same relief as requested in Count II. In Count IV, which the Plaintiffs frame as an alternative to Counts I and III, Plaintiffs appeal the Board’s decision under Section 81-BB of the Subdivision Control Law.

Plaintiffs have moved for summary judgment on all Counts of their Complaint. The Defendant Town of Middleton and the Defendant Board have opposed the Plaintiffs’ Motion, primarily on the grounds that the court lacks subject matter jurisdiction to review the Board’s decision where the Plaintiffs have failed to exhaust their administrative remedies. Now, having considered the written statements in support and in opposition from all interested parties, I have determined, pursuant to Land Court Rule 6, that the Plaintiffs’ Motion may be decided without hearing oral argument.

Further, on the basis of the undisputed material facts, I find that the Plaintiffs have failed to demonstrate entitlement to relief as a matter of law under any of the Counts in their Complaint and that the summary judgment record, instead, supports entry of judgment in favor of the non-moving parties (i.e. the Defendants), dismissing all Counts of the Complaint for lack of subject matter jurisdiction. As discussed below, neither certiorari review nor declaratory relief is available to challenge what is essentially a preliminary determination for zoning purposes, made in anticipation of a building permit application. Also, the Board’s decision is not a decision or other action reviewable under the Subdivision Control Law.

UNDISPUTED MATERIAL FACTS

1. The Middleton Planning Board’s Rules and Regulations Governing the Subdivision of Land are codified as Chapter 250 of the Middleton Code (the “Subdivision Regulations”). Section 250-9 of Subdivision Regulations is entitled “Requirements for definitive plan approval.” Subsection B of 250-9 (“§ 250-9B”) provides as follows:

The Superintendent of Public Works shall advise the Board as to the adequacy of the proposed streets within the subdivision. No definitive plan shall be approved unless the ways and streets shown on the plan comply with the following requirements, and they shall be constructed in accordance with the standards specified in the Appendix. [Emphasis added.]

2. Appended to the Subdivision Regulations is a document labeled “250 Attachment 1” and entitled “Street Construction Standards.” The first paragraph of Attachment 1 recites that the “following minimum standards shall govern installation of all streets and roadways within the right-of-way lines in the Town of Middleton under the Rules and Regulations Governing the Subdivision of Land adopted by the Planning Board and referred to in § 250-9B.”

3. Attachment 1 includes several sets of standards organized by subject: “Roadways” (referencing § 250-9B of the Subdivision Regulations); “Surface Water Drainage System Standards” (referencing § 250-9C of the Subdivision Regulations); “Water System Specifications;” “Sewerage System Specifications;” “Utility Installation Specifications;” “Fire Alarm System Specifications;” “Streetlights;” “Monument Specifications;” “Tree Planting Specifications;” “Cleaning Up;” “Maintenance of Roadways and Utilities” – all of which appear related to the construction of new subdivisions. These standards are followed by a final set of standards entitled “Providing Adequate Access to Existing Lots” (the “Adequate Access Regulations”).

4. The first two numbered paragraphs of the Adequate Access Regulations provide as follows:

1. Prior to issuing a building permit for new construction, the Building Inspector must obtain a determination from the Planning Board that the lot upon which the building is being erected has frontage upon a street. The Zoning Bylaw defines a street as “a way which, in the reasonable judgment of the Planning Board, has sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic existing and/or resulting from the development of abutting land and for the installation of municipal services to such land(s) and/or buildings located on or to be constructed on such land and which complies with one of the following criteria: (1) a way which the Town Clerk certifies is used as and maintained regularly and consistently as a public way by the Town to the same extent to which other public ways are maintained by the Town; or (2) a way shown on a plan previously approved and endorsed by the Planning Board and recorded at the Registry of Deeds; or (3) a way existing prior to the date on which subdivision control was adopted by the Town. [Emphasis added.] [Note 2]

2. For a lot which has frontage on one of the aforementioned ways, which lot existed prior to the date on which subdivision control was adopted by the Town (March 15, 1955), but does not meet the construction standards described above (i.e., sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic existing…on such land”), the Planning Board hereby adopts rules and regulations by which an applicant may improve said way without submitting a definitive plan under the Board’s “Rules and Regulations Governing the Subdivision of Land in Middleton, MA. [Emphasis added.]

5. Paragraph 3.F of the Adequate Access Regulations provides that:

[i]f a [roadway improvement plan] is found to be unsatisfactory, the Planning Board shall deny the application, and the reasons for denial shall be included in the Board’s decision. Once the applicant has addressed the reasons for disapproval and submitted such to the Planning Board, it may be approved by the Board without a public hearing.

6. Section 6.7 of the Middleton Zoning Bylaws (“Bylaws”) is entitled “Approved street plan.” Subsection 1 of Section 6.7 (“§ 6.7.1”) provides that:

No building permit shall be issued unless the lot to be built upon has frontage on a street, as defined in this Zoning Bylaw, or, if it is on an unconstructed way, such way shall be constructed in accordance with the Planning Board rules and regulations providing adequate access to existing lots. A street plan based on the criteria set forth in the regulations relating to adequate access shall be approved by the Middleton Planning Board. [Emphasis added.]

7. Section 6.7 of the Bylaws was adopted on May 12, 2009, a month before the Adequate Access Regulations were adopted on June 10, 2009.

8. The term “Street” is defined in Section 10.1 of the By-laws as:

A public way which the Clerk of the Town of Middleton certifies is maintained and used as a public way, or a way shown on a plan approved and endorsed in accordance with the Subdivision Control Law, or a way in existence when the Subdivision Control Law came into effect in the Town of Middleton on March 15, 1955, having in the opinion of the Planning Board, sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby and for the installation of municipal services to serve such land and the building erected or to be erected thereon. [Emphasis added.]

9. Section 9.1 of the Bylaws details the process by which building permits may be applied for, acted upon by the Building Commissioner, and appealed.

10. Section 9.1.3.2 of the Bylaws provides, in relevant part, that the “Building Commissioner shall approve no applications…which are not in all respects in conformity with these [zoning] bylaws, unless the applicant has secured [zoning relief] from the Board of Appeals.”

11. Section 9.1.6 of the Bylaws provides as follows:

Appeals. Any person aggrieved by his inability to obtain a permit, by the refusal of the Building Commissioner to issue a permit, or by any order, decision or failure to act of the Building Commissioner, or any officer or board of the Town, may appeal to the Board of Appeals in the manner provided by G.L. c. 40A, §§ 7,8 and 15.

12. On or about March 28, 2013, Plaintiffs applied to the Board for approval, under the Adequacy Access Regulations, of a proposed “Road Improvement Plan - Old East Street Assessor’s Map 8, Lots 6 and 6A” for the purpose of providing adequate frontage and access from Old East Street to said Lots. (The “Application”).

13. According to the Application, the Improvement Plan was submitted to “[demonstrate] that the applicant’s property and the way providing access thereto and frontage thereon, were in existence well prior to the adoption of subdivision control by the Town of Middleton …, ” and that the “road improvements will result in a way providing access to the Applicant’s property which has sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic and the installation of municipal services.”

14. Plaintiff Jonathan Webber is the record owner of Lot 6 and Plaintiff David Webber is the record owner of Lot 6A.

15. Lots 6 and 6A are shown as Lot M-2 and Lot M-1, respectively, on a G.L. c. 41, § 81P approval not required (“ANR”) plan, endorsed by the Board on April 8, 2009 and recorded in the Southern Essex Registry of Deeds on May 20, 2011 at Plan Book 428, Page 95 (the 2009 ANR Plan.”). Old East Street is labeled on the 2009 ANR Plan below the reference “See PB 159, PL 52.” [Note 3] The 2009 ANR Plan does not indicate the precise location or width of Old East Street and does not label its status.

16. At a public hearing held on May 8, 2013, the Board voted to deny the Application, finding that “based upon documentation on record at the Southern Essex District Registry of Deeds and in the Assessor’s Office for the Town of Middleton, the Roadway in question, “Old East Street” is not a roadway that meets one (1) of the three (3) criteria set forth in Section 1 of the Rules and Regulations regarding Providing Adequate Access to Existing Lots. In addition, the Plan itself does not provide adequate access.” (The “Denial”).

17. The Denial was received by the Town Clerk on May 22, 2013. The Plaintiffs filed their complaint for judicial review of the Denial on June 7, 2013.

18. It is undisputed that Old East Street is not a public way or one which the Town Clerk has certified is maintained and used as a public way. It is also undisputed that Old East Street is not a way shown on a plan approved and endorsed under the Subdivision Control Law, although it has been shown on various plans endorsed as “approval under the subdivision control law not required.”

DISCUSSION

Based upon the undisputed material facts in the summary judgment record, the Defendants are entitled under Mass. R. Civ. P. 56(c) to entry of judgment as a matter of law, dismissing all counts of the Plaintiffs’ action because, as discussed in more detail below: (1) this court lacks subject matter jurisdiction to review the Denial under either G.L. c. 249, § 4, or G.L. c. 231A where Plaintiffs have not exhausted their administrative remedies under the Bylaws and G.L. c. 40A, § 8, and (2) this court lacks subject matter jurisdiction to review the Denial under either G.L. c. 41, § 81-Y or G.L. c. 41, § 81-BB where the subdivision control law is not implicated.

1. The Denial is not subject to review in the nature of certiorari under G.L. c. 249, § 4.

Certiorari review of a judicial or quasi-judicial proceeding is available only where no other remedy exists; it is not an additional or alternative form of judicial review. Cumberland Farms, Inc. v. Planning Bd. of Bourne, 56 Mass. App. Ct. 605 , 607 (2002) (Cumberland I). “Certiorari cannot be requested where administrative remedies terminating in judicial review are available and unexhausted.” St. Botolph Citizens Comm., Inc. v. Boston Redev. Auth., 429 Mass. 1 , 7 (1999).

Not every action taken by a planning board necessarily gives rise to the right of a direct appeal to the courts. When a planning board acts on a site plan review application, or conducts a design review under the Boston Zoning Code, for example, the planning board’s decision “is not a final action, but only a prerequisite to the grant of the [building] permit ….” St. Botolph Citizens Comm., Inc. v. Boston Redevelopment Authority, supra at 9. In such instances, the right of an aggrieved person to appeal the local planning board’s review arises only when the building permit for the proposed project is issued or denied by the local building inspector. Id.; Cumberland Farms, Inc. v. Planning Bd. of Bourne, 67 Mass. App. Ct. 67 , 69 (2006) (Cumberland II).

The Board’s review of an Improvement Plan is analogous in many ways to the administrative site plan review addressed in Cumberland I and Cumberland II, and the design review process addressed in St. Botolph. Just as with administrative site plan or design review procedures preliminary to a building permit application, the roadway improvement plan review procedure set forth in the Adequate Access Regulations does not result in a final, appealable action. It is, instead, a means of obtaining a pre-building permit determination from the Board with respect to the adequacy of certain private ways to qualify as lot frontage under the Bylaws.

Indeed, the Adequate Access Regulations reflect the contemporaneously adopted provisions of § 6.7.1 of the Bylaws which expressly prohibits the issuance of a building permit unless the lot has frontage on a street as defined therein, or on a way constructed in accordance with Board’s rules and regulations providing adequate access to existing lots, and which further provides that a street plan is to be approved by the Board based on the criteria in those adequate access regulations. This provision of the Bylaws is reflected in the language of the Adequate Access Regulations providing that “[p]rior to issuing a building permit for new construction, the Building Inspector must obtain a determination from the Planning Board that the lot upon which the building is being erected has frontage upon a street.”

There is no procedure available for direct review of the Board’s determination under the Adequate Access Regulations. Instead, review of such a determination arises only in conjunction with an appeal from the grant or denial of a building permit. If a building permit application is ultimately denied because the applicant has not obtained a determination of adequate access from the Board, the applicant may avail itself of the administrative appeal process provided for in § 9.1.6 of the Bylaws and G.L. c. 40A, § 8, by appealing the denial of the building permit to the Board of Appeals. Then, only after the Board of Appeals has acted on the building permit appeal, may an aggrieved party appeal to the court under G.L. c. 40A, § 17. Given this statutorily provided administrative and exclusive judicial appeal process for zoning matters, certiorari review of the Denial is not an available remedy. See St. Botolph Citizens Comm., 429 Mass. at 7 (certiorari review unavailable where “administrative remedies terminating in judicial review are available and unexhausted.”). Therefore, Count I of the Plaintiffs’ Complaint must be dismissed for lack of subject matter jurisdiction.

2. Declaratory Relief is unavailable under G.L. c. 231A.

Because the Plaintiffs’ administrative remedies remain unexhausted, declaratory relief under G.L. c. 231A is also unavailable. See Space Bldg Corp. v. Comm’r of Revenue, 413 Mass. 445 , 448 (1992); Marlborough Sav. Bank v. City of Marlborough, 45 Mass. App. Ct. 250 , 252 (1998); Clark & Clark Hotel Corp. v. Bldg. Inspector of Falmouth, 20 Mass. App. Ct. 206 , 213-214 (1985). As discussed above, the procedures under the Adequate Access Regulations are preparatory to the Building Commissioner’s determination as to whether certain existing lots have qualifying frontage under the Bylaws for purposes of obtaining building permits. Accordingly, the Board’s actions under the Adequate Access Regulations may not be appealed directly to the courts. See Cumberland II, 67 Mass. App. Ct. at 69; St. Botolph Citizens Comm., 429 Mass. at 7. The Plaintiffs must first avail themselves of the administrative review process provided in the Zoning Act. See, Cumberland II, 67 Mass. App. Ct. at 70, n.8.

As discussed above, the administrative review process for zoning matters commences with the final action of the Building Commissioner, and ends with the final action of the Board of Appeals. See G.L. c. 40A, § 8. Thus, it is only after the Building Commissioner has denied a building permit application on the grounds that the applicant has not obtained the Board’ approval of the Improvement Plan that the Denial would be subject to administrative review by the Board of Appeals in connection with an appeal from the Building Commissioner’s action. And, it is only after this administrative process has been exhausted that resort may be had to the court under G.L. c. 40A, § 17. A complaint for declaratory judgment cannot be used to sidestep this statutory appellate procedure for zoning disputes. Whitinsville Ret. Soc’y, Inc. v. Town of Northbridge, 394 Mass. 757 , 763 (1985). Therefore, Count II of Plaintiffs’ Complaint must be dismissed for lack of subject matter jurisdiction.

3. The Court lacks subject matter jurisdiction to review the Denial under § 81-Y and § 81-BB of the Subdivision Control Law.

The Denial is also not subject to judicial review under G.L. c. 41, § 81-Y. First of all, the Plaintiffs lack the necessary standing to bring a petition under Section 81-Y, as they are neither “a planning board” nor “ten taxable inhabitants.” Secondly, the Plaintiffs’ Complaint is not cast as a petition to enjoin an action taken in disregard of the provisions of § 81-Y, or to otherwise “enforce the provisions of the subdivision control law and any rules or regulations lawfully adopted.” Indeed, the Complaint does not concern any actions which are subject to injunctive relief or review under G.L. c. 41, § 81-Y, [Note 4] such as Town acceptance of a way, or the erection of a building, in violation of the Subdivision Control Law.

More importantly, where it is undisputed that the Plaintiffs’ Improvement Plan was not submitted in connection with the division or subdivision of any land, and where the express purpose of the Adequate Access Regulations is to provide for a non-subdivision approval process, the Denial simply does not implicate the Subdivision Control Law. Rather, as has been discussed, the Adequate Access procedure is used to obtain a determination from the Board that, if improved as shown on an improvement plan, an existing way would be of adequate design and construction to serve as street frontage for an existing lot so as to satisfy the requirements of the Bylaws for a buildable lot.

Furthermore, to the extent that the Plaintiffs’ Complaint could be read to assert that the Denial somehow violates the Board’s Subdivision Regulations, the summary judgment record does not support Plaintiffs’ contention that the Adequate Access Regulations are themselves subdivision regulations. Although the Adequate Access Regulations appear in the Appendix to the Subdivision Regulations, the plain language of the Adequate Access Regulations establishes that their purpose is related to zoning requirements and not to subdivision approval. It is apparent from the language of the Adequate Access Regulations that they pertain only to the contemporaneously adopted requirements in Section 6.7 of the Bylaws for the Board’s approval of a street adequacy plan in instances where an unimproved way is proposed as frontage. [Note 5] Accordingly, where the Plaintiffs lack standing under G.L. c. 41, § 81-Y and the Denial is not an action subject to review under § 81-Y, Count III must be dismissed for lack of subject matter jurisdiction.

Similarly, the court lacks jurisdiction to review the Denial under Section 81-BB of the Subdivision Control Law, where the Denial is neither “a decision of a board of appeals under section eighty-one Y,” nor a decision of a planning board “concerning a plan of a subdivision of land” [emphasis added] ? the only actions which are subject to appeal under G. L. c. 41, § 81 BB. The Denial is not a decision of a board of appeals under § 81-Y and the Improvement Plan is not a plan of a subdivision of land. Moreover, the stated purpose of the Adequate Access Regulations is to provide a process under which an applicant may improve an existing way without the necessity for subdivision approval. Therefore, the Denial may not a proper subject of appeal under G.L. c. 41, § 81-BB and Count IV of the Plaintiffs’ Complaint must be dismissed for lack of subject matter jurisdiction.

CONCLUSION

For the foregoing reasons, judgment shall enter against the Plaintiffs, and in favor of the Defendants, DISMISSING all counts of Plaintiffs’ Complaint for lack of subject matter jurisdiction.