ALAN SIOK and PAULA SIOK vs. RAYMOND PHOENIX, CARLOS CHAVES, KATHLEEN HOULE, CHRISTOPHER COELHO, JOSEPH QUEIROGA and JOHN PEDRO, as they are Members of the PLANNING BOARD OF THE TOWN OF LUDLOW, AMM GROUP, LLC, The SWIST FAMILY TRUST, VICTOR Z. SWIST, Trustee, BENJAMIN YOUNG and LISA YOUNG.

Plaintiffs Alan Siok and Paula Siok filed their unverified Complaint on October 21, 2013, appealing the approval of a modification to a Definitive Subdivision Plan (the “Subdivision Plan”) filed by Defendant AMM Group, LLC (“AMM Group”) with Defendant Planning Board of the Town of Ludlow (the “Planning Board”) pursuant to the provisions of G.L. c. 41, § 81BB and G.L. c. 185, § 1(k). [Note 1] The Planning Board and AMM Group filed separate Motions to Dismiss on November 20, 2013. Defendants Victor Z. Swist, Trustee of The Swist Family Trust (“Swist”), Benjamin Young and Liza Young (collectively, the “Youngs”) (the Planning Board, AMM Group, Swist and the Youngs collectively, “Defendants”) filed a Motion to Dismiss on December 9, 2013. [Note 2] A case management conference was held on December 13, 2013. Plaintiffs filed their Consolidated Opposition to Defendants’ Motions to Dismiss on December 20, 2013. The Planning Board filed its Reply on January 6, 2014. A motion hearing was held on February 24, 2014, and this court took the Motions to Dismiss under advisement at that time.

A complaint may be dismissed for failure to state a claim upon which relief can be granted pursuant to Mass. R. Civ. P. 12(b)(6) if it fails to make factual allegations which “raise a right to relief above the speculative level ... [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact)” Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). [Note 3] A complaint is sufficient to survive a motion to dismiss that pleads “allegations plausibly suggesting (not merely consistent with) an entitlement to relief, in order to reflect the threshold requirement ...that the ‘plain statement’ possess enough heft to show that the pleader is entitled to relief.” Id. (internal quotations omitted). A motion to dismiss may be denied “if it appears that the plaintiff may be entitled to any form of relief, even though the particular relief he has demanded and theory on which he seems to rely may not be appropriate.” Lichoulas v. City of Lowell, 78 Mass. App. Ct. 271 , 275 (2010) (quoting Nader, 372 Mass. at 104). The dismissal of a complaint for failure to meet the pleading requirements of the Massachusetts Rules of Civil Procedure is a matter of discretion for the judge. Mmoe v. Commonwealth, 393 Mass. 617 , 618 (1985). Although factual allegations are taken as true, legal conclusions that are set forth as factual allegations are not so taken. Schaer v. Brandeis University, 432 Mass. 474 , 477 (2000).

For purposes of this motion, the following facts are taken to be admitted:

1. On August 23, 2007, the Planning Board approved the Subdivision Plan pursuant to the provisions of G.L. c. 41, which depicted a subdivision located on Alden Street, Ludlow, MA (the “Subdivision”), [Note 4] which included a subdivision road (“Avelino Way”), ten building lots, and an unnamed extension traveling westerly between lots 3 and 4 from near the end of Avelino Way to adjoining land now owned by Plaintiffs (the “Spur”).

2. On April 26, 2012, the Planning Board approved an Approval Not Required plan (the “ANR Plan”) submitted by AMM Group that combined lots 3 and 4 as shown on the Subdivision Plan and eliminated the Spur. The reconfigured lots 3 and 4 and the Spur were renamed lots 3A and 4A. The ANR Plan was not appealed.

3. Shortly after the ANR Plan was approved, Lots 3A and 4A were conveyed to Swist and the Youngs, respectively.

4. The ANR Plan removed the Spur, eliminating any future access from Plaintiff Property across the Subdivision to Alden Street, leaving the Plaintiff Property landlocked.

5. Upon learning of the approval of the ANR Plan, Plaintiffs’ attorney wrote to the Planning Board and requested a public hearing be held on the modification of the Subdivision Plan. The Planning Board refused to schedule a public hearing. As a result, Plaintiffs filed Civil Action No. HDCV2013-002360A in the Hampden County Superior Court, Alan & Paula Siok v. The Planning Board of the Town of Ludlow (the “Superior Court Action”), which sought an injunction requiring the Planning Board to schedule a public hearing on the modification or amendment of the Subdivision Plan.

6. On August 8, 2013 AMM Group filed an application with the Planning Board for a modification of the Subdivision Plan under G.L.c. 41 § 81W.

7. In its application, AMM Group requested Waivers from the Town of Ludlow Subdivision Rules and Regulations (the “Rules and Regulations”), including waiver from sections III.A.1.i and III.A.4.a. Section III.A.1.i of the Rules and Regulations requires that any subdivision containing more than eight (8) lots in Ludlow shall have not less than two (2) street entrances from an existing roadway. Section III.A.4.a of the Rules and Regulations requires that dead-end streets be no longer than 1000 feet in length.

8. The Planning Board held public hearings on this application on September 5, 12, and 26, 2013 and, after the September 26 hearing, voted (the “Planning Board Decision”) to amend the Subdivision Plan (the “Revised Subdivision Plan”) that eliminated the Spur. In addition, the Planning Board voted to grant all waivers that had been requested by AMM Group. The Planning Board Decision was filed with the Town of Ludlow Town Clerk on October 3, 2013.

9. Plaintiffs filed this action appealing the Planning Board Decision on October 21, 2013.

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Pursuant to Mass. R. Civ. P. 12(b)(6), Defendants argue that Plaintiffs have failed to state a claim upon which relief can be granted, and as a result they have filed Motions to Dismiss the Complaint. AMM Group’s position is that Plaintiffs had an opportunity to appeal the ANR Plan, but failed to do so and thus their action is untimely. Further, AMM Group argues that Plaintiffs lack standing because neither they nor their predecessors had any interest in the Subdivision.

Finally, AMM Group contends that the Planning Board approved the Revised Subdivision Plan after a public hearing in which the Planning Board determined the modifications to be in the best interest of the Town and that Plaintiffs are wrongfully seeking the court to grant them rights in private property (the Spur) without alleging any public interest in doing so. The Planning Board similarly contends that Plaintiffs lack standing and their petition is untimely. The Planning Board further contends that there is no basis to overturn a decision the Planning Board reached after a comprehensive, open and fair deliberative process. Swist and the Youngs adopt the positions advocated by AMM Group and the Planning Board.

In opposition, Plaintiffs contend that the Planning Board’s vote to modify the Subdivision Plan filed by AMM Group and grant a number of waivers from the Rules and Regulations was improper, illegal, arbitrary and capricious.

I. Timeliness of Plaintiffs’ Appeal

AMM Group and the Planning Board argue that Plaintiffs’ appeal is untimely because it seeks to appeal the ANR Plan approved on April 26, 2012. Defendants argue that the ANR Plan validly modified the Subdivision, and that the Revised Subdivision Plan was merely a “re- modification” of a valid modification. Thus, Defendants claim that Plaintiffs have missed their chance to appeal the modification.

This argument is misguided because, as a legal matter, the ANR Plan could not have modified the Subdivision Plan. Under G.L. c. 41, § 81W, approval or modification of a subdivision plan involves specific statutory procedures, including a public hearing and open sessions of the planning board at which the proposed division or modification is “carefully reviewed so as to meet design criteria and certain policy objectives.” Hamilton, 35 Mass. App. Ct. at 388; see G.L. c. 41, §§ 81M, 81T and 81W; North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432 , 435-437(1981); Lepesqueur v. Swann, 2013 WL 3816726 (Mass. Land Ct. 2013). Accordingly, an ANR plan, which does not involve the above procedures, may not modify a subdivision plan. See Hamilton, 35 Mass. App. Ct. 389 ("The provisions built into §§ 81T and 81W, which are designed to protect purchasers of lots in a subdivision and the larger public, would be altogether–and easily–subverted if an approved plan could be altered by the simple expedient of procuring a § 81P "approval not required" endorsement.”) Thus, the ANR Plan did not properly modify the Subdivision. [Note 5] The Revised Subdivision Plan is the first and only modification of the Subdivision that eliminated the Spur. The appeal before this court of the Revised Subdivision Plan was therefore initiated well within the twenty day statutory period for appeals. G.L.c. 41 § 81BB. As a result, I find that Plaintiffs’ complaint is timely filed. [Note 6]

II. Standing

AMM Group and the Planning Board also argue that Plaintiffs lack standing. G.L. c. 41, § 81BB provides a right of appeal for any person aggrieved by a decision of a planning board concerning a plan of a subdivision of land. [Note 7] The SJC has determined that, because the Zoning Act, G.L. c. 40A, and the subdivision control law share the similar purpose of regulating the use of land to ensure safety, convenience, and welfare, the meaning of “person aggrieved” under G.L. c. 41, § 81BB may be guided by case law on zoning appeals pursuant to G.L. c. 40A, § 17. See Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 522(2009) (citing Rattner v. Planning Bd. of W. Tisbury, 45 Mass. App. Ct. 8 , 10 (1998)).

Under G.L. c. 40A, § 17, a “person aggrieved” is one who suffers some infringement to a right or interest that the applicable law is intended to protect, either explicitly or implicitly. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011). “To qualify for that limited class, a plaintiff must establish—by direct facts and not by speculative or personal opinion—that his injury is special and different from the concerns of the rest of the community.” Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). See also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005) (noting plaintiff's injury flowing from board's decision must be “special and different from the injury the action will cause to the community at large”).

“Abutters entitled to notice of planning board hearings, pursuant to G.L. c. 41 § 81T, enjoy a rebuttable presumption that they are persons aggrieved.” Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 523 (2009). An abutters' standing may be challenged with evidence that an abutter is not aggrieved by a decision. Rattner v. Planning Bd. of West Tisbury, 45 Mass. App. Ct. 8 , 10 (1998). [Note 8] However, legal arguments and mere allegations are not sufficient to rebut the plaintiffs' presumed standing. See Watros v. Greater Lynn Mental Health & Retardation Ass'n, Inc., 421 Mass. 106 , 110 (1995) (the presumption of standing may not be rebutted by denials in defendant's Answer); Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 128 (1999) (the presumption of standing may not be rebutted simply by raising the issue; the challenge must be supported with actual evidence). An abutter whose standing is properly challenged must then respond with credible evidence and specific facts substantiating his or her claims of aggrievement. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005).

Plaintiffs, as abutters to the Subdivision, enjoy a rebuttable presumption that they are persons aggrieved. Krafchuk, 453 Mass. at 523. Defendants attempt to rebut this presumption by claiming that Plaintiffs and their predecessors have never had any ownership interest in the Subdivision, and thus do not face a particularized harm. However, as discussed above, the threshold question for questions of standing is based on aggrievement, and has nothing to do with ownership interest. [Note 9] Moreover, as this is a Motion to Dismiss and the parties have not submitted any evidence, Defendants’ rebuttal lacks the requisite supporting evidence to overturn Plaintiffs’ presumed standing. As a result, I find that Plaintiffs, at this juncture, have standing to pursue their claim.

III. Plaintiffs’ Failure to State a Claim

Under G.L. c. 41, § 81R, a planning board enjoys broad discretion to waive strict compliance with the requirements of its subdivision rules and regulations when such waiver is in the public interest and not inconsistent with the intent and purpose of the subdivision control law. Musto v. Planning Bd. of Medfield, 54 Mass. App. Ct. 831 , 837 (2002). A planning board's decision to grant or deny a waiver will be upheld unless premised upon “‘a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001) (quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999)). The burden of proof is on the party challenging a planning board's action. Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548 (1975).

Plaintiffs’ Complaint alleges that the Revised Subdivision Plan decision granting the modification with various waivers of the Rules and Regulations was not made pursuant to “any facts gathered or findings made at the public hearings[.]” This allegation is plausible and, if true, could raise a the question of Plaintiffs’ right to relief above a speculative level. [Note 10]

As a result of the foregoing, I DENY Defendants’ Motion to Dismiss.

The parties shall attend a status conference on Thursday, June 26, 2014 at 10:00 A.M. to discuss how this case shall proceed. Judgment shall enter after all issues are resolved.