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. After considering 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 have concluded that the Plaintiffs have failed to demonstrate entitlement to relief 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. As discussed in detail in the Summary Judgment Decision Dismissing Plaintiffs’ Complaint, dated December 15, 2014, this court lacks subject matter jurisdiction to review the Board’s decision denying the Improvement Plan. 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.

Accordingly, it is hereby ADJUDGED, ORDERED and DECLARED that all counts of Plaintiffs’ Complaint are DISMISSED.

SO ORDERED.