HERITAGE WHARF, LLC v. LORRI-ANN MILLER, JOSEPH E. TOOMEY, ARTHUR C. LARRIVEE, BRIAN SOUSA, and JOHN HARAN, as they are members of the DARTMOUTH ZONING BOARD.

Heritage Wharf, LLC (Heritage) sought to subdivide a parcel in Dartmouth that sits on Apponagansett Bay in what was then a Limited Business District under Dartmouth’s Zoning By- Law. Heritage wanted to use at least one of the new subdivision lots for up to two residential units. During the preliminary plan review and consideration of a definitive and amended definitive plan, the Dartmouth Planning Board (Board) determined that the proposed subdivision street should be designed and built to commercial standards. Because Heritage’s amended definitive plan did not show such a street, and Heritage did not seek any waivers, the Board denied approval. Heritage brought this action pursuant to G.L. c. 41, § 81BB, appealing the denial. Heritage argues that the Board’s decision was arbitrary and capricious, and requests that the court annul the Board’s decision and remand the matter to the Board with proper directions. After some extended discussions among the parties, they have now brought cross-motions for summary judgment. For the reasons set forth below, the Board did not act arbitrarily or capriciously in denying the amended definitive plan. Heritage’s motion for summary judgment is denied, and the Board’s cross-motion is allowed.

Procedural History

Heritage filed its Complaint appealing a decision of the Board denying Heritage’s application for approval of an amended definitive subdivision plan pursuant to G.L., c. 41, § 81BB (complaint) on April 23, 2007, naming as defendants Lorri-Ann Miller, John Haran, Joseph E. Toomey, Brian Sousa, and Arthur C. Larrivee, as they are members of the Board. The case management conference was held on June 21, 2007. The Board members filed their Answer and Affirmative Defense on June 25, 2007.

Heritage filed the Plaintiff’s Motion for Summary Judgment, along with the Plaintiffs’ Memorandum of Law in Support of Motion for Summary Judgment, the Plaintiffs’ Statement of Material Facts, and the Affidavit of David J. Nolan, Jr. on January 25, 2010. The court referred the case to an ADR screening on April 21, 2011. The Board filed its Motion to Strike Portions of Plaintiff’s Motion for Summary Judgment and for Protective Order to Prevent Depositions on September 23, 2013. Heritage filed the Plaintiff’s Opposition to Defendants’ Motion to Strike Portions of Plaintiff’s Motion for Summary Judgment and for Protective Order to Prevent Depositions on November 1, 2013, and the Board filed its Reply on November 14, 2013. The court issued its Order Allowing Defendants’ Motion to Strike Portions of Plaintiff’s Motion for Summary Judgment on November 26, 2013 (Order Allowing Motion to Strike). On January 13, 2014, the Board filed the Defendants’ Opposition to the Plaintiff’s Motion for Summary Judgment and Cross-Motion for Summary Judgment, Memorandum in Support of the Defendants’ Opposition to the Plaintiff’s Motion for Summary Judgment and Cross-Motion for Summary Judgment, Defendants’ Response to Plaintiff’s Statement of Material Facts, and Defendants’ Appendix of Additional Exhibits. On February 12, 2014, Heritage filed the Plaintiff’s Opposition to Defendant’s Cross-Motion for Summary Judgment, Memorandum in Support of Plaintiff’s Reply to Defendants’ Opposition to the Plaintiff’s Motion for Summary Judgment and Plaintiff’s Opposition to Defendants’ Cross-Motion for Summary Judgment, Plaintiff’s Response to Defendants’ Statement of Additional Material Facts, and Plaintiff’s Appendix of Additional Facts. On February 27, 2014, the Board filed the Defendants’ Reply at Summary Judgment and Defendants’ Appendix of Additional Exhibits. The cross-motions for summary judgment were heard on March 14, 2014, and taken under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission...together with the affidavits...show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.’” Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the “burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991); see Regis Coll., 462 Mass. at 291-292.

Undisputed Facts

The following facts are undisputed.

1. Heritage is the owner of a 2.67 acre parcel of land located on Elm Street in Dartmouth, Massachusetts (the Property). The Property is shown as Lot 1 on Dartmouth Assessors Map 117 and Lot 10 on Assessors Map 112. Plaintiffs’ Statement of Undisputed Facts (Pl. Facts) ¶ 2; Ex. 1, Affidavit of David Nolan, Jr. (Nolan Aff.) ¶¶ 1, 2.

2. Heritage purchased the Property from South Wharf LLC (South Wharf) on October 11, 2006. Pl. Facts ¶ 4; Nolan Aff. ¶ 4.

3. The Property was located in a “limited business” zoning district under the Town’s Zoning By-Law, which permitted restaurant, retail, and multi-family residential uses as of right. Pl. Facts ¶ 3; Nolan Aff. ¶ 3.

4. South Wharf filed a preliminary subdivision plan, pursuant to G.L. c. 41, § 81S, with the Board through the Planning Department on June 2, 2006 (Preliminary Plan). South Wharf sought to divide the Property into three lots. The Preliminary Plan showed the street extension as containing a hammerhead turnaround. Lots 1 and 2 were each abutting both Elm Street and the street extension, and Lot 3 only abutted the street extension. The street extension was characterized as a “residential service street” as defined by the Board’s Subdivision Regulations. The Preliminary Plan also stated that waivers were sought with respect to right-of- way width, pavement radius, curbing, sidewalks, turnaround design, and paved width. Pl. Facts ¶ 7; Nolan Aff. ¶ 7; Defendant’s Response to Statement of Undisputed Facts (Def. Facts) ¶ 37; Exs. 9 and 10.

5. At the June 26, 2006 public meeting on the Preliminary Plan, the Planning Director made a statement, and the Board agreed, that the proposed subdivision should be designed to accommodate the most intense use allowed, which is commercial. The Board voted to approve the Preliminary Plan, with modifications and conditions, and a Certificate of Action was issued on June 27, 2006. Pl. Facts ¶ 13; Def. Facts ¶ 38; Ex. 11, p. 1-2, 4-5. Pl.’s Response to Def.’s Statement of Add. Facts, pp. 4-5.

6. The Certificate of Action provided:

Adherence to commercial subdivision standards will be required since this is the more intense use allowed by zoning for the property. This would require at least 24’ wide pavement (normally 30’, however to fit in with the Village, the 24’ could be allowed). The r-o-w should be 50’ to accommodate the road, sidewalk and trees. A full cul-de-sac to minimize congestion, sloped granite curbing and a sidewalk on both sides of the street (setback from edge of curb) is needed, as well as compliance with other subdivision standards; such as, monuments, trees, drainage, etc.

Pl. Facts ¶ 13; Ex. 3, p. 1; Pl.’s Response to Def.’s Statement of Add. Facts, p. 5-6.

7. Residents in Dartmouth submitted a petition to Town Meeting to change the zoning in the area of the Property to a new “Boatyard District.” Town Meeting voted to indefinitely postpone action on the proposed zoning change on June 6, 2006. The Board approved a petition to change the zoning in the area of the Property to a “Waterfront Overlay District” on October 17, 2006. Pl. Facts ¶¶ 7, 14; Nolan Aff. ¶¶ 7, 14.

8. On November 16, 2006, after acquiring the property from South Wharf, the Plaintiff filed a definitive subdivision plan for the property dated November 3, 2006 (the Definitive Plan). The Definitive Plan showed the street extension as being 50’ in width, with 24’ wide paved travel lanes, sidewalks on both sides of the street, and a full cul-de-sac. Ex. 4; Ex. 12; Def. Facts ¶ 40.

9. At the public hearing on the Definitive Plan on December 18, 2006, the Board concluded that it should seek the opinion of John Alcaidinho, Fire Chief of the District regarding the Board’s requirement that the street extension meet commercial standards under the Subdivision Regulations. Def. Facts ¶ 44; Ex. 14, p. 3.

10. The Planning Director sent a letter to Heritage’s Engineer, Alan Heureux, on December 19, 2006, saying, among other things, that the street extension needed to be designed to meet the commercial standards of the Subdivision Regulations. Def. Facts ¶ 45; Exs. 15, 24.

11. At the public hearing on the Definitive Plan on February 12, 2007, Mr. Heureux pointed out that to meet the commercial standards, either certain buildings on the Property along Elm Street would need to be demolished or the cul-de-sac would need to extend beyond the seawall. Daniel Perry, counsel for Heritage, mentioned that they were prepared to limit their use to residential, but that they preferred to keep the option open for commercial use as well. Pl. Facts ¶ 22; Def. Facts ¶ 47; Ex. 16, p. 1; Pl.’s Response to Def.’s Statement of Add. Facts, Response Nos. 46, 47.

12. At the February 12, 2007, public hearing, the Planning Director said that the recently adopted Waterfront District zoning in that area does not encourage residential use at the expense of water dependent uses. Pl. Facts ¶ 23; See Ex. 16, p. 2.

13. At the February 12, 2007, public hearing, the Board extended the deadline for action on the Definitive Plan, and asked Mr. Heureux to submit overlays of each of the plans, including a design meeting commercial standards, and state what waivers are needed for each of the plans. The Board also agreed to consult with Chief Alcaidinho. Pl. Facts ¶ 24; Def. Facts ¶¶ 48-49; Ex. 16, p. 3; Pl.’s Response to Def.’s Statement of Add. Facts, Response No. 48-49.

14. In a letter to the Planning Director on February 23, 2007, Chief Alcaidinho requested that the Board require all roadways and cul-de-sacs to meet the commercial development standards of the town, and that “until someone can make a choice on what type of building’s going to be built or what this location is even going to be used for, this department cannot agree to any changes from the town’s specifications.” Def. Facts ¶ 50; Ex. 17, ¶ 3; Pl.’s Response to Def.’s Statement of Add. Facts, Response No. 50.

15. At the public hearing on February 26, 2007, Heritage presented several alternative concept plans. The Director of Planning observed that all of the plans would need waivers to adhere to commercial standards, and said that from “purely a Town Board viewpoint of the master plan as to what is good for the Town, the Planning Board should probably not approve a plan with waivers.” Pl. Facts ¶¶ 25, 27; Ex. 18, p. 2-3.

16. The hearing on February 26, 2007, ended with the Board telling Mr. Heureux to bring the Board a plan that can comply with all its regulations and can be subdivided, and “the Board may grant waivers to improve the subdivision.” Def. Facts ¶ 53; Ex. 18, p. 4; Pl.’s Response to Def.’s Statement of Add. Facts, Response No. 53.

17. The Plaintiff filed with the Board an Amended Definitive Plan for the Property (dated March 12, 2007) on March 14, 2007. The Amended Definitive Plan showed the street extension as having a right-of-way width of 40’, with no sidewalks, and a hammerhead turnaround with prongs of less than 50’ in length on a portion of the property that provided vehicular access to the boat ramp at that time. The Amended Definitive Plan is endorsed to say that the second lot will be for residential use only and shall have no more than two dwelling units. Def. Facts ¶ 54; Exs. 19, 20. A copy of the Amended Definitive Plan is attached.

18. In the letter accompanying the Amended Definitive Plan, Mr. Heureux stated that they were not seeking any waivers from the Subdivision Regulations. Ex. 20, p. 2; Def. Facts ¶ 55; Pl.’s Response to Def.’s Statement of Add. Facts, Response No. 55.

19. At the April 2, 2007 public hearing, the Board reviewed the Amended Definitive Plan. Attorney Perry requested that the Board act on the Amended Definitive Plan. Ex. 22, p. 2; Def. Facts ¶¶ 56-57.

20. At the public hearing, the Planning Director expressed concern about the use of the street extension by lots 1 and 3 on the Amended Definitive Plan. The Planning Director also noted that the hammerhead turnaround did not contain prongs of at least 50’ in length. Chief Alcaidinho said he could not agree to a hammerhead turnaround, since it would require fire trucks to back up as they turned around. Ex. 22, pp. 2-3; Def. Facts ¶ 59-61; Pl.’s Response to Def.’s Statement of Add. Facts, Response No. 59-61.

21. At April 2, 2007 public hearing, the Board voted 4-0 to disapprove the Amended Definitive Plan. Pl. Facts ¶ 29.

22. The Board filed a Certificate of Action with the Town Clerk on April 3, 2007 (Decision), disapproving of the Amended Definitive Plan for the following eleven reasons:

a. The Plan failed to incorporate a full cul-de-sac as required for dead-end commercial or industrial streets under Section 3.303(k) of the Subdivision Regulations. Nor did it meet the residential hammerhead standard of Section 3.303(k).

b. The Plan does not comply with Section 3.303(a) of the Subdivision Regulations because it requires classifying the street as a commercial and industrial street.

c. The plan does not comply with Section 3.303(c), which requires subdivision streets to have a curve within 150’ of an intersection.

d. The Board is not satisfied that the Plan provides adequate access for emergency vehicles, which is required by Section 3.303 (d).

e. The Plan does not have a median island at the intersection and separate turning lanes as required by 3.303(e) of the Subdivision Regulations for Commercial/Industrial streets.

f. The Plan does not comply with the 60’ right-of-way as required by the Section 3.303(i) of the Subdivision Regulations for commercial streets.

g. The plan did not have a 30’ wide pavement as required by Section 3.303(j).

h. The plan did not have a granite or concrete Cape Cod berm as required by Section 3.304(a) for commercial and industrial streets.

i. The plan did not include guardrails pursuant to Section 3.305(c), which are required if the Board thinks there are hazards, such as drop-offs.

j. The plan does not have sidewalks on both sides of the street as required by Section 3.306 for streets in a business district.

k. Drainage and utility services for the plan need to be adjusted to meet the requirements for a commercial cul-de-sac compliant with the Subdivision Regulations.

Pl. Facts ¶ 31; Exs. 5, 24; Pl.’s Response to Def.’s Statement of Add. Facts, Response No. 62.

23. Relevant portions of the Subdivision Regulations are as follows:

a. Section 3.101 provides that along with the submission of a definitive plan for approval, the applicant shall also submit a “list of waivers being requested by the applicant along with an explanation as to why the applicant feels each request is appropriate.”

b. Section 3.303(a) provides that, with regards to the classification of a subdivision street for establishing the applicable design and construction standards, the “Board shall determine the classification in all doubtful cases.”

c. Section 3.303(a) defines a Residential Service Street as a “street which is used solely for access to abutting lots, and serves as legal frontage and access to not more than twenty (20) residential units.”

d. Section 3.303(a) defines a Residential Lane as a “street which will remain private and serve as legal frontage and access for not more than two (2) residential units. Further, no additional residential units can gain legal frontage or access on said lane.”

e. Section 3.303(a) defines a Commercial and Industrial Service Street as a “street which will be used solely as access to abutting lots and serves as legal frontage and access to not more than six (6) lots.”

f. Section 3.303(c) provides that “[i]n order to provide greater privacy for residents and to discourage traffic entering into side streets, subdivision streets shall start a curve within 150 feet of an intersection.”

g. Section 3.303(d) provides that the “Planning Board shall be satisfied that adequate access for emergency vehicles is provided to all of the lots in the subdivision.”

h. Section 3.303(e) requires an unpaved median island and separate turning lanes for Commercial & Industrial Streets.

i. Section 3.303(i) requires a forty (40) foot Right-of Way (ROW) for Residential Lanes, a fifty (50) foot Right-of Way (ROW) for Residential Service Streets, and a sixty (60) foot Right-of Way (ROW) for Commercial and Industrial Service Streets.

j. Section 3.303(i) requires a sixteen (16) foot pavement width for Residential Lanes, a twenty-four (24) foot pavement width for Residential Service Streets, and a thirty (30) foot pavement width for Commercial and Industrial Service Streets.

k. Section 3.303(k) requires circular turnarounds for Residential Service Streets and Commercial and Industrial Streets.

l. Section 3.303(k) requires that circular turnarounds on Commercial and Industrial Streets have an outside pavement radius of seventy (70) feet with an unpaved island and ROW radius of ninety (90) feet.

m. Section 3.303(k) permits a dead-end lane serving no more than two lots to have a hammerhead turnaround. Each prong of a hammerhead turnaround must be at least fifty (50) feet in length.

n. Section 3.304(a) provides that Commercial and Industrial Street curbing “shall be either granite (vertical or sloped) or concrete (precast or cast in place).”

o. Section 3.305(c) provides that “[g]uardrails shall be required where, in the opinion of the Planning Board, there are hazards such as drop-offs, steep grades (greater than 25 percent), or waterbodies beyond the shoulder.”

p. Section 3.306(a) provides that sidewalks shall be required “on both sides of the street if the subdivision is located in a business district.”

Ex. 24.

Discussion

Under G.L. c. 41, § 81BB, review of a local board’s decision on a subdivision plan involves a combination of de novo and deferential analyses. See Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). The court shall conduct a hearing de novo, make findings of fact, and, “confining its review to the reasons stated by the planning board for its disapproval of the subdivision plan, determine the validity of the board’s decision.” Id.; Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 478-481 (1955). The court may not substitute its judgment for that of the board. Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 21 (1977); see Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). The court shall determine whether the board exceeded its authority in approving or denying the plan, including whether the plan conformed to the rules and regulations of the board and to the recommendations of the board of health. Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 23-24 (1977); Mac-Rich Realty Const., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 81 (1976). The court shall not annul a board’s decision unless the decision was “premised upon ‘a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’” Musto v. Planning Bd. of Medfield, 54 Mass. App. Ct. 831 , 837 (2002), quoting Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001). When a developer brings an appeal of a zoning board’s decision on a subdivision plan, the developer has the burden of proving that the board exceeded its authority in disapproving the plan. Fairbairn, 5 Mass. App. Ct. at 173.

Heritage makes six arguments for why the Decision should be annulled. Three of those arguments—that the Board held Heritage to higher development standards than other subdivision cases, that the Decision was based upon an unstated reason unrelated to the Subdivision Control law, and that the Board had a motivation to establish spot zoning—were struck by the court’s Order Allowing Motion to Strike, and need not be considered. Heritage’s remaining arguments are that (a) the Board’s Subdivision Regulations are too vague, rendering the Decision disapproving the Amended Definitive Plan arbitrary and capricious; (b) the Board was arbitrary and capricious in conditioning the approval of the Preliminary Plan on conditions it knew Heritage not fulfill; and (c) the Board was arbitrary and capricious because it refused to issue waivers. The court addresses each argument in turn.

1. The Board’s Subdivision Regulations were too vague and therefore their decision was arbitrary and capricious.

Planning boards are obligated to create reasonable subdivision rules and regulations. G.L. c. 41, § 81Q. The subdivision regulations must be “comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required of them and what standards and procedures will be applied to them.” Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329 , 334 (1962). This is to prevent local boards from rejecting a subdivision plan based on reasons not mentioned in the regulations. See North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432 , 443-444 (1981). Within this standard, a planning board still has discretion to make case-by-case determinations based on the specific facts and circumstances of each case. Id. at 442-443. Thus, regulations that give ample notice to developers that the board may, in its discretion, require more stringent compliance are permissible. Mac-Rich Realty Const., Inc., 4 Mass. App. Ct. at 83. Just because the regulations could be better worded for clarity does not necessarily render the regulations invalid. See North Landers Corp., 382 Mass. at 442.

Heritage argues that the provision in § 3.303(a) of the Subdivision Regulations that the Planning Board shall determine the classification of streets “in all doubtful cases” is impermissibly vague, and that the Board erred in relying on this provision in the Decision to deny the Amended Definitive Plan because it did not meet the standards for a commercial street. Section 3.303(a) is not so vague that the Board could rule based on reasons not mentioned in the Subdivision Regulations. Section 3.303(a) requires that subdivision streets “be classified for the purpose of establishing the applicable design and construction standards” for the streets. Subdivision Regs. § 3.303(a). Section 3.303(a) then sets forth thorough and detailed definitions for each classification of subdivision street—residential service street, residential lane, commercial and industrial service street, etc. Id. In cases where it is unclear under what classification the subdivision street should fall, the Subdivision Regulations reserve to the Board some discretion to make that determination. Here, the classification of the proposed subdivision street in both the Preliminary Plan and the Amended Definitive Plan was “doubtful” because the Property was in a Limited Business District under the Zoning By-Law, intended for commercial use, but the plans proposed to use one of the new lots on the Property for residential use. The Board’s decision to classify the subdivision street as a commercial and industrial service street rather than a residential lane or residential service street was not arbitrary and capricious, because it was faced with a plan with a mix of uses in a commercial zone and had to choose a street classification. The Board made a determination based on the facts and circumstances at hand, which is a permissible exercise of its discretion. North Landers Corp., 382 Mass. at 442-443. Once it made its permissible determination that the subdivision street was a commercial and industrial connector street, the Board was entitled to require the Amended Definitive Plan to show a street conforming to that standard.

2. The Board based the approval of the Preliminary Plan and the Amended Definitive Plan on conditions it knew Heritage could not meet.

Heritage argues that the Board conditioned approval of the Preliminary Plan on conditions it knew Heritage could not meet. Whether the Board conditioned the approval of the Preliminary Plan on impossible conditions is irrelevant. A party cannot appeal the denial of a preliminary plan under G.L. c. 41, § 81BB. See Paul Livoli, Inc. v. Planning Bd. of Marlborough, 347 Mass. 330 , 335 (1964) (developer cannot appeal from board’s disapproval of preliminary plan); Mac-Rich Realty Const., 4 Mass. App. Ct. at 83 n.5 (court should only be concerned with the board’s decision of the definitive plan).

Heritage also argues that the Board denied the Amended Definitive Plan because that plan did not meet conditions that were impossible to comply with. These conditions were the specific requirements for commercial and industrial service streets, including minimum ROW, minimum pavement width, curve within 150’ of an intersection, and a median island. Heritage argues that the size and configuration of the Property made it impossible to show a street on the Amended Definitive Plan that complied with those conditions.

This argument misconstrues the impossible conditions doctrine. It is unreasonable for a planning board to condition the approval of a subdivision on things entirely beyond the applicant’s power. V.S.H. Realty, Inc. v. Zoning Bd. of Appeals of Plymouth, 30 Mass. App. Ct. 530 , 534 (1991); Sullivan v. Planning Bd. of Acton, 38 Mass. App. Ct. 918 (1995) (planning board could not condition the approval of the subdivision plan upon improvement of a highway, which is an act that is outside the control of the applicants). It is not unreasonable to require an applicant to comply with local zoning bylaws and subdivision regulations. V.S.H. Realty, Inc., 30 Mass. App. Ct. at 534. All zoning bylaws and subdivision regulations place limits and conditions on the use of land, and are based on the principle that the land cannot be used for any particular purpose if the limits and conditions on that use are not met. Here, the Board was merely requiring Heritage to comply with the conditions for a commercial and industrial connector street. It was not conditioning approval on something that was beyond Heritage’s power. Heritage could have taken down a building in order to fit the commercial street, revised its plans for the Property, or sought waivers from strict compliance with the commercial standards. That it chose not to do so does not make the Board’s reasonable application of the commercial and industrial connector street standard an unreasonable condition.

3. The Board was arbitrary and capricious by not allowing waivers of the Amended Definitive Plan.

Heritage argues that the Board acted arbitrarily and capriciously in not granting waivers for the Amended Definitive Plan. There is no evidence to support this claim. A planning board enjoys broad discretion to waive strict compliance with subdivision requirements, but is not required to grant waivers. G.L. c 41, §81R; see Caruso v. Planning Bd. of Revere, 354 Mass. 569 , 572 (1968); Mac-Rich Realty Const., 4 Mass. App. Ct. at 85-86. Nothing in the record indicates that the Board abused its discretion in not granting waivers, due in no small part to the fact that Heritage explicitly stated that it was not requesting any waivers in the Amended Definitive Plan. The Board cannot be blamed for taking Heritage at its word.

In short, based on the undisputed facts, Heritage cannot meet its burden to establish that the Board abused its discretion or acted and arbitrarily and capriciously in denying the Amended Definitive Plan. Where the non-moving party bears the burden of proof, the “burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis, 410 Mass. at 711. The Decision is affirmed.

Conclusion

For the foregoing reasons, the Plaintiffs’ Motion for Summary Judgment is DENIED. The Board’s Cross-Motion for Summary Judgment is ALLOWED. Judgment shall enter dismissing the complaint with prejudice.

SO ORDERED