MISC 14-482194

February 12, 2015

Norfolk, ss.



At issue in this action is the denial of Plaintiff Growth Homes Elm, LLC’s (Growth Homes) application for endorsement as “approval not required” (ANR) of a plan of land by the Planning Board of the Town of Wellesley (Board), whose members are Defendants, pursuant to G. L. c. 41, § 81P. The plan, titled “Plan of Land Wellesley, Massachusetts” dated January 22, 2014 (ANR Plan), divides Growth Homes’ property located at 910 Washington Street (Locus) into two separate lots. As shown on the ANR Plan, Lot 1 has 185 feet of frontage on Washington Street, while Lot 2 has 100 feet of frontage on Schaller Street.

The Board determined that Growth Homes was not entitled to endorsement of its ANR Plan because the proposed lots lacked sufficient frontage under the Wellesley Zoning Bylaws (Bylaws). In making its determination, the Board relied on the Town of Wellesley’s most recently adopted zoning map, dated December 20, 2002 (2002 Zoning Map) and approved at Town Meeting on March 24, 2003. The 2002 Zoning Map depicts Locus as located entirely in a Single Residence Forty Thousand Foot zoning district (SRD 40 District). However, a map dated January 1, 1980 (1980 Zoning Map) - the map that the 2002 Zoning Map purported to replace - depicts Locus located partly in a Single Residence Fifteen Thousand Foot zoning district (SRD 15 District) and partly in an SRD 40 district.

In a three-count complaint filed March 12, 2014, Growth Homes seeks judicial review of the Board’s decision pursuant to G. L. c. 41, §81BB, and a declaratory judgment against the Town pursuant to G. L. c. 240, § 14A regarding the validity of the 2002 Zoning Map. [Note 1] Growth Homes moved for summary judgment on Counts I and II on August 29, 2014, and the Board filed a cross-motion on the same date. A hearing was held on October 3, 2014, at which all parties were heard.

Growth Homes argues that the sole purpose of the 2002 Zoning Map which was authorized by a Warrant article at the 2003 Town Meeting was to convert the hand-drawn 1980 Zoning Map to a computer-generated version. Growth Homes asserts that because no changes to existing zoning districts were adopted at Town Meeting, Locus remains split-zoned between the SRD 40 and SRD 15 Districts, as shown on the 1980 Zoning Map. It contends that the 2002 Zoning Map depicting otherwise simply is incorrect. The two lots shown on the ANR Plan would thus have adequate frontage based on the dimensional requirements of the SRD 15 District. The Board claims the 2002 Zoning Map is valid, accurate and unambiguous, and that it properly relied on that map’s depiction of Locus in an SRD 40 District when it denied endorsement of the ANR Plan. Further, the Board argues that G. L. c. 40A, § 5 and c. 40, § 32, stating that challenges to certain alleged defects in a zoning amendment must be brought within 90 days of the amendment’s publication, bars Growth Homes from now attacking the 2002 Zoning Map. Finally, the Board asserts that reliance on any extrinsic information, such as opinions or documents from Town officials, is prohibited because the 2002 Zoning Map is unambiguous and clear on its face.

The summary judgment record includes the parties’ briefs and submissions as well as affidavits and exhibits, all filed under Land Court Rule 4. The following material facts, largely submitted jointly by the parties and drawn from documents that comprise the summary judgment record, are not in dispute: [Note 2]


1. Plaintiff Growth Homes Elm, LLC is a Massachusetts limited liability company with an address of 1234 Boylston Street in Chestnut Hill.

2. Growth Homes is the owner of residential property located at 910 Washington Street in Wellesley (Locus) covering approximately 40,000 square feet.

3. Planning Board of Wellesley (Board) is a duly organized board of the Town of Wellesley with offices located at 525 Washington Street in Wellesley.

4. The individual members of the Board are:

a. Defendant Jeanne Conroy, Board Chair,

b. Defendant Sara Preston, Board Vice Chair,

c. Defendant Deborah Carpenter, Board Secretary,

d. Defendant Neal Glick, Board Member, and

e. Defendant Catherine Johnson, Board Member.

5. Defendant Town of Wellesley (Town) is a body corporate and politic with offices located at 525 Washington Street in Wellesley.

1967 Town Meeting

6. At the 1967 Wellesley Town Meeting, Article 23 (Article 23) was presented and approved. Article 23 amended the then-effective Zoning Bylaws and Zoning Map by establishing that a certain area of land defined by metes and bounds and shown on a plan was to be located within the Single Residence 15 (SRD 15) District. The area included a portion of Locus approximately 100 feet northeasterly of Schaller Street.

7. As a result of the passage of Article 23, beginning in 1967, a portion of Locus was located in SRD 15 District and a portion of Locus was located in a SRD 40 District.

8. These zoning district designations were reflected in the Zoning Map dated January 1, 1980 (1980 Zoning Map) which show Locus bisected consistent with Article 23.

9. Under the Bylaws, in the SRD 15 District, a minimum lot size of 15,000 square feet and a minimum frontage of 100 feet are required. (See Bylaws Sections XVIII.A; and XIX.B.)

10. Under the Bylaws, in the SRD 40 District, a minimum lot size of 40,000 square feet and a minimum frontage of 200 feet are required. (See Sections XVIII.A; Section XIX.B.)

2003 Town Meeting

11. At the 2003 Wellesley Town Meeting, Article 29 was presented and approved.

12. Article 29 of the Warrant read as follows:

a. To see if the Town will vote to adopt a new computer-generated Zoning Map and, to implement this action, amend the Zoning Bylaw Section I, Establishment of Districts, Paragraph A, and Section XVIII, Area Regulations, by deleting reference to the Zoning Map dated “January 1, 1980” and inserting in its place reference to the new Zoning Map dated “December 20, 2002.”

13. The Planning Board’s Report to Town Meeting on Article 29 read in pertinent part as follows:

a. This article recommends that the Town adopt a new Zoning Map. The current Zoning Map was prepared in 1980 and is a [sic] hand drawn with permanent black ink on polyester film. The Town Network Information System (NIS) Department has developed a new Zoning Map based on the Geographic Information System (GIS). This computer-generated map, printed in color, has uniform line width and uniform number and letter size which makes the map crisp and readable. It has the advantage of being able to be reproduced in essentially any size or scale and can be updated quickly. The zoning districts have been carefully reviewed to insure correct and accurate boundaries. (emphasis added.)

14. The Advisory Committee recommended favorable action on Article 29 by a vote of 13 to 0, and reported to Town Meeting as follows:

a. This Article seeks to adopt a new computer generated Zoning Map. The old Zoning Map, hand drawn on mylar, dates back to 1980. The new Zoning Map is more accurate since it has been drawn up with the help of the Geographic Information System (GIS) and will conform to the rest of the Town’s engineering documents.

15. Neither Article 29 nor any of the printed commentary noted above contained any express statement that the proposed Map purported to change existing zoning as to any particular properties.

16. The Town Meeting’s action on Article 29 was as follows:

Rosemary Donohue, member of the Planning Board offered the following motion, action on which was Voted, unanimously by voice vote, 2/3 required:

that the Zoning Bylaw, SECTION I. ESTABLISHMENT OF DISTRICTS. A., be amended by deleting the date “January 1, 1980,” and by inserting in its place “December 20, 2002,” and by deleting the words

“said districts are shown on the Zoning Map by patterns and cross-hatched lines as indicated in the Legend on the Zoning Map,” and that SECTION XVIII. AREA REGULATIONS be amended by striking the date “January 1, 1980” as it appears in the first paragraph and by inserting in its place “December 20, 2002.”

17. Article 29 was approved by Town Meeting on March 24, 2003.

18. At the same Town Meeting, separate articles were also presented and approved to amend the zoning districts applicable to certain specified lots and areas of land, not including Locus. For example, Article 30 proposed “to amend the Zoning Bylaw and the Zoning Map by establishing as a Conversation District land now included in an Administrative and Professional District located north of land of Wellesley Office Park on northbound side of Route 128 . . . comprising approximately 106,945 square feet[.]” Article 31 proposed to “amend the Zoning Bylaw and the Zoning Map by establishing as a Single Residence District portions of three lots of land known as 38, 42 and 44 Lincoln Street . . . now included in a Business District[.]”

19. The Zoning Map dated December 20, 2002, and referenced in Article 29 (the 2002 Zoning Map) shows Locus located entirely within the Single Residence 40 Zoning District.

20. The Attorney General approved the zoning amendment adopted under Article 29 by letter dated May 8, 2003, and signed the 2002 Map as approved. [Note 3]

21. Section I (Establishment of Districts) of the Wellesley Zoning Bylaws states in part as follows:

a. For the purpose of this Zoning Bylaw, the Town of Wellesley is hereby divided into classes of districts as shown on the “Zoning Map of the Town of Wellesley, Massachusetts”, prepared under the direction of the Planning Board, Scale 1”=500’, dated December 20, 2002 as amended, on file with the Town Clerk, which map together with all boundary lines and designations thereon, is hereby declared to be part of the Bylaw.

22. The 2002 Zoning Map contains the following statement:


a. This map is for display only---it is not intended for survey or legal purposes. Questions about specific data layers on this map should be directed to the respective Town board, committee or department. The Town of Wellesley expressly disclaims responsibility for damages or liability that may arise from any errors, omissions or inaccuracies in the information provided herein.

23. Michael Zehner, the Town Planning Director, has determined that the 2002 Zoning Map incorrectly depicted the zoning applicable to at least three to four separate areas in the Town, including Locus.

The ANR Plan

24. Growth Homes purchased Locus from the Estate of Lucy M. Lord by deed dated December 10, 2013, recorded with the Norfolk County Registry of Deeds in Book 31969, at Page 41.

25. There is an approximately 1,823 square foot single-family house located on Locus. This house was originally constructed in approximately 1940.

26. Prior to the its purchase of Locus, Growth Homes, through its counsel, Richard S. Mann, was informed by Town Planning Director Michael Zehner and Assistant Planning Director Ethan Parson, that Locus was split-zoned with a portion of Locus being located in the SRD 15 District and a portion of Locus being located in the SRD 40 District.

27. In December 2013 the Wellesley Assessor’s office listed Locus as located in the SRD 15 District.

28. Locus abuts Schaller Street and Washington Street, both of which are existing public ways. Locus appears on the 2002 Zoning Map in Block 8-A and is the lot bounded by Schaller Street to the West, Washington Street to the North, and Cheney Drive to the East.

29. On January 28, 2014, Plaintiff submitted the ANR Plan for the division of Locus into two lots. Growth Homes requested that the Board determine that approval of the ANR Plan under the Subdivision Control Law was not required.

30. The ANR Plan depicts two lots (Lot 1 and Lot 2), each having in excess of 15,000 square feet of lot area and each having in excess of 100 feet of frontage on an existing public way (Lot 1 on Washington Street and Lot 2 on Schaller Street).

31. The ANR Plan accurately depicts the location of the dividing line between the SRD 15 and SRD 40 Districts on Locus, as that line was established by Article 23 of the 1967 Annual Town Meeting.

32. At the Planning Board meeting at which the ANR Plan was considered, Growth Homes, through counsel, stated that it intended to place residential structures for the two lots within the portion of the lots inside the SRD 15 District and have frontage also within the SRD 15 District. Growth Homes’ counsel also stated at the hearing that Growth Homes did not intend for structures of any kind to be located on that portion of Locus located with the SRD 40 District.

33. The ANR Plan depicts the location of the existing single-family house; it does not depict the location of any proposed structures.

34. In response to inquiries from Growth Homes generally and about the ANR Plan in particular, the Inspector of Buildings, Planning Director and Town Counsel concluded that the 2002 Zoning Map contained errors that were not discovered prior to the 2003 Town Meeting.

35. Prior to the Board’s action on Plaintiff’s request for endorsement of the ANR Plan, Michael D. Zehner, Planning Director, prepared a memorandum to the Planning Board dated February 20, 2014.

36. Prior to the Board’s action on Plaintiff’s ANR Plan, Michael Grant, the Town Inspector of Buildings, concluded that the 2002 Zoning Map incorrectly depicted the zoning of Locus and that the correct zoning was that depicted on the 1980 Zoning Map, reflecting the map change made by Article 23, in 1967. Mr. Grant stated in an email to Town Counsel dated February 6, 2014, that “the intent of the Town Meeting action in 2003 on this article was to adopt a new map, not to amend the zoning of this property. . .”

37. Prior to the Board’s action on Plaintiff’s ANR Plan, Albert Robinson, then Town Counsel, advised Mr. Grant in an email dated February 18, 2014, that Mr. Grant had the authority to determine the location of a district boundary line under both Section 1(B) (5) of the Town’s Zoning Bylaws and as part of the Building Inspector’s implicit authority as building inspector and zoning enforcement officer.

38. Under Section I(B)(5) of the Bylaws “[w]herever any uncertainty exists as to the exact location of a boundary line, the location of such a line shall be determined by the Inspector of Buildings.”

39. Prior to the Board’s action on the ANR Plan, Town Counsel Robinson stated in an email to Mr. Grant dated February 18, 2014, that the only time where all the “fundamentals of zoning” were “fully engaged” was with respect to the 1967 Town Meeting vote (i.e., at the time of the adoption of Article 23) and further stated as follows:

a. “My opinion is that that vote persists today as the operative zoning for this property. The town meeting vote in 2003 to adopt a “computer generated zoning map” was devoid of the fundamentals to effect a zoning change; it was a commendable effort to explain publicly the new way of drawing the map.”

40. At the Board’s February 24, 2014 meeting, the Board denied Plaintiff’s request for endorsement of the ANR Plan (Decision). The Decision states, in part, as follows:

a. “At the Planning Board meeting on February 24, 2014 the Board voted 3-2 to approve a motion denying endorsement of the ANR Plan, citing that the ANR Plan was not entitled to endorsement because the Planning Board recognized the 2002 Zoning Map, adopted by Town Meeting in 2003, as the ruling Zoning Map and the lot would therefore be in the Single Residence District 40,000 Sq. Ft. Minimum Area District (“SRD 40”) and would not have sufficient frontage for division of the lot into two (2) lots. The Board further indicated that the adoption of the 2002 Zoning Map was duly executed and the indication of the zoning of this particular property as SRD 40 on that map is not an error (as indicated by the Inspector of Buildings), but a reflection of Town Meeting action on the map.”

* * * * *

Summary judgment is appropriate when there are no genuine issues of material fact and, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Opara v. Mass. Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004); Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991); Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles it to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991).

When faced with cross-motions, as presented here, the court analyzes the parties’ legal positions guided by which party has the burden on the issues before the court. In an appeal brought pursuant to G. L. c. 41, § 81BB, the developer carries the burden of proving that the Planning Board’s Decision exceeded its authority and must be annulled. Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 479 (1955); Mac-Rich Realty Const. Inc. v. Planning Bd of Southborough, 4 Mass. App. Ct. 79 , 81 (1976). In this case, in lieu of a de novo trial to ascertain the facts, the parties have presented the court with sufficient material facts upon which to decide the case. The court limits its review to the Board's reasons for disapproving the plan in question. Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977).

I. The 1980 Zoning Map Controls The Zoning Of Locus And Shows Locus Is Split-Zoned Between SRD 15 And SRD 40 Districts.

Prior to the preparation of the 2002 Zoning Map, Locus had been shown on the 1980 Zoning Map as split-zoned between the SRD 15 and the SRD 40. The parties have stipulated that the 1980 Zoning Map properly reflected the zoning of Locus, based on the adoption of Article 23 at the 1967 Wellesley Town Meeting. Article 23 expressly amended the then- effective Zoning Bylaws and Zoning Map by establishing that a certain area of land defined by metes and bounds and shown on a plan was to be located within the SRD 15 District. The rezoned area included a portion of Locus approximately 100 feet northeasterly of Schaller Street.

Although the 2002 Zoning Map now depicts Locus as being located entirely within the SRD 40 District, Growth Homes argues that the zoning remains split between SRD 15 and SRD 40, as it has been since 1967. Growth Homes claims that the 2003 Town Meeting intended only to adopt a new zoning map format, and did not intend to change or amend the zoning districts pertaining to Locus; therefore, the zoning district shown on the 1980 Zoning Map should continue to apply. In its denial of Growth Homes’ application for endorsement of an ANR Plan, however, the Board recognized the 2002 Zoning Map as the official, duly adopted map for the Town, and ruled, by a 3-2 vote, that the map’s depiction of Locus solely within an SRD 40 District controlled its zoning status.

The 2002 Zoning Map was approved at a Town Meeting on March 24, 2003. Prior to Town Meeting, the Town published a Warrant containing 45 separate articles proposing various changes to Wellesley’s local laws. Article 29 proposed “[t]o see if the Town will vote to adopt a new computer-generated Zoning Map and . . . amend the [Zoning By-laws] . . . by deleting reference to the Zoning Map dated ‘January 1, 1980’ and inserting in its place reference to the new Zoning Map dated ‘December 20, 2002.’” Although the Warrant included nine other articles addressing changes to zoning, only Article 29 addressed changes to the Town’s Zoning Map. The others proposed rezoning of certain specified properties and districts. In a report to the Town Meeting, the Planning Board recommended adoption of Article 29, stating that a computer-generated map would provide significant advantages over the then-existing hand- drawn map in terms of color, accuracy, uniformity and readability. Article 29 was adopted unanimously by a voice vote, and approved by the Attorney General on May 8, 2003.

It is clear from the language of the Warrant Article and the legislative history of the Article that its sole purpose was to authorize a new method of generating a more accurate, easy to read, amendable zoning map, consistent with technological advances that were not available when the 1980 Zoning Map was created. Article 29 did not purport to change the zoning district boundary lines of Locus or of any property in Town, nor make any other substantive change to the Bylaws. Thus, the question becomes whether the fact that the 2002 Zoning Map erroneously places the Locus wholly within the SRD 40 District can lawfully change the zoning district of that parcel without an underlying vote to do so adopted at Town Meeting. This court concludes that without such an underlying vote, the 2002 Zoning Map’s erroneous depiction of the Locus has no independent legal significance and the Locus’ zoning district has not been changed since 1967, as shown on the 1980 Zoning Map.

The Town counters that Plaintiff’s challenge to the zoning of Locus as shown on the 2002 Zoning Map is time-barred. G. L. c. 40A, § 5, tenth paragraph, states “[n]o claim of invalidity of any zoning ordinance or by-law arising out of any possible defect in the procedure of adoption or amendment shall be made in any legal proceedings . . . unless legal action is commenced within the time period specified in sections thirty-two and thirty-two A of chapter forty and notice specifying the court, parties, invalidity claimed, and date of filing is filed together with a copy of the petition with the town or city clerk within seven days after commencement of the action.” (italics added). G. L. c. 40, § 32 states, in relevant part, “[b]efore a by-law or an amendment thereto takes effect it shall also be published in a town bulletin or pamphlet . . . [which] shall include a statement that claims of invalidity by reason of any defect in the procedure of adoption or amendment may only be made within ninety days of such posting or of the second publication and a statement indicating where copies of such by-law may be examined and obtained.” (italics added). Pursuant to these sections, claims based on an alleged procedural defect in the adoption of a zoning by-law or amendment are time-barred unless brought within 90 days of the date of the town’s satisfactory notice of such adoption of amendment (following approval of the Attorney General.) The Town argues the alleged discrepancy between the 2002 Zoning Map presented and approved at Town Meeting and its accompanying Warrant Article constitutes this type of time-barred procedural defect.

In support, the Board relies heavily on Bruni v. Planning Bd. of Ipswich, 73 Mass. App. Ct. 663 (2009). In Bruni, the plaintiffs sought to develop a subdivision comprising five lots, constructing a way through two lots for access. The Ipswich Planning Board denied the application, relying on a zoning map that depicted three of plaintiffs’ lots in a business district and two in a residential district. Two years before plaintiffs filed their proposed plan, the Town of Ipswich had voted to amend its zoning map by changing the boundaries of its highway business district so as to include plaintiffs’ five lots. The accompanying warrant article expressly proposed to:

amend[] the Official Zoning Map . . . [to] change the boundaries of the Highway Business District as follows: [t]he part of the Highway Business District generally situated approximately [1,200] feet, more or less . . . shall be widened[.] The above-described business-zoned area is further described as including all or portions of [Lots 14A, 22, 22A, 23 and 24] . . . and as shown on the attached map.

Bruni, 73 Mass. App. Ct. at 665.

The warrant article thus specifically authorized the inclusion of the plaintiffs’ five lots within the Highway Business District. However, the “attached map,” referenced in the article, displayed two of the five lots as located within a “Rural Residential” District. The article and map were adopted without mention (or, presumably knowledge) of this discrepancy. More than three years after the zoning change had been adopted and approved by the Attorney General, Plaintiffs filed their subdivision plan and when turned down by the Planning Board, they challenged the fact that only three of their five lots were shown within the boundaries of the Highway Business District on the Town’s zoning map.

The trial court concluded that the 90-day limitations period prescribed by G. L. c. 40, § 5 barred plaintiffs’ challenge to alleged inconsistencies between the zoning map and warrant article, and therefore found no error in the town planning board’s determination, based on the map, that two of plaintiffs’ five lots fell within a residential district. In affirming the ruling, the Appeals Court agreed that plaintiffs’ challenge was time-barred under G. L. c. 40A, § 5, stating that the lower court “correctly determined that the plaintiffs’ claim was a ‘claim of invalidity of [a] zoning . . . by-law arising out of [a] possible defect in the procedure of adoption or amendment.” Id. at 670.

Both parties rely on Bruni to support their respective positions in this case. Bruni and the instant case concern a similar mistake: a zoning map depicting an incorrect zoning district was displayed at Town Meeting and subsequently approved. Although Bruni presents similar issues and facts to the present case, the factual predicates are importantly distinguishable, and this court is persuaded that the holding in Bruni does not control here. The parties in Bruni stipulated at the outset: “[a]ny modifications to the Ipswich Zoning Map resulting from [the article] would have been subject to appeal pursuant to G. L. c. 40A, § 5.” The warrant article included language demonstrating an express intent to change the boundary of a specific zoning district, whereas Article 29 in the present case speaks only of adopting a zoning map in a different format, without changing the boundaries of any zoning districts. In other words, Article 29 was not a rezoning article.

Although the Bruni plaintiffs, similar to Growth Homes here, viewed their claim as “one of error in the revised zoning map,” the Appeals Court determined that the alleged mistake forming the basis of their claim was actually with the warrant article itself, and not in any revision of the zoning map. Id. at 670. The Appeals Court summarized plaintiffs’ argument, “as best [they could] understand it,” as a claim that “the map placed on file with the town clerk [after the vote] is without legal force and effect because it was never adopted in accordance with G. L. c. 40A, § 5.” Id. at 670. Thus, having voted to amend the zoning map, plaintiffs argued the town should have adopted the zoning map after the boundary lines had been redrawn, pursuant to the article, and the failure to do so rendered the map invalid.

However, the Appeals Court ruled that nothing in the record supported the claim that the town was required to adopt a zoning map “separate and apart” from the warrant article. The Town of Ipswich, in adopting the article, voted to amend the town’s official zoning map as described in the article itself, and said amendment was approved and published in accordance with G. L. c. 40, § 32. Passage of the article was thus procedurally sound. Its language indicated a clear intent to alter or amend the specific properties listed. One could infer that this language provided sufficient information to any interested individuals present at the Meeting directing them to study the accompanying map, if they so chose.

Growth Homes, or its predecessors-in-interest, did not receive similar notice or direction. Unlike the warrant article in Bruni, Article 29 contained no language or references to specific lots that might have directed any property owner to consult or scrutinize the proposed zoning map displayed at Town Meeting. Article 29 did not purport to change or alter the zoning district in which Locus is located, and a plain reading of its language indicates only that the format of the already existing zoning map was to be converted to a computer-generated version. [Note 4] To allow the clear error on the 2002 Zoning Map to control the zoning of Locus under the circumstances presented here would eviscerate the zoning amendment process. To do so would ignore the clear intent of the warrant article and its language while advancing the inaccurate 2002 Zoning Map which was adopted for a different purpose, and not to support and memorialize a rezoning of Locus.

II. Conclusion

For the reasons set forth above, Growth Homes’ Motion for Summary Judgment is GRANTED, and the Board’s Motion for Summary Judgment is DENIED. Under Plaintiff’s G. L. c. 41, § 81BB appeal set forth in Count I, the Board’s Decision is annulled. The ANR Plan is remanded to the Board for its reconsideration in light of this court’s findings and ruling that Locus is split-zoned, as shown on the 1980 Zoning Map, between the SRD 40 and SRD 15 Districts. The Board shall convene a meeting and vote on the ANR Plan within 60 days of the date hereof, unless the parties request a longer period. [Note 5] While the court declines to invalidate the 2002 Zoning Map in its entirety, as urged by Growth Homes, under G. L. c. 240, § 14A, this court is authorized to determine that the 2002 Zoning Map may not be applied to Locus, and chooses to do so for the reasons set forth above. Accordingly, under Count II, brought against the Town pursuant to G. L. c. 240, § 14A, this court declares that the 2002 Zoning Map may not be applied to Locus in such a way as to change its zoning district location from split-zoning between the SRD 15 and SRD 40 Districts as shown on the 1980 Zoning Map to SRD 40 only, as shown on the 2002 Zoning Map.

Following further action by the Board in accordance with this remand, the parties shall report such action to the court and a status conference will be scheduled to determine if and how this case will proceed.

So ordered.


[Note 1] In its third count, Growth Homes seeks costs, alleging the Board acted in bad faith or with gross negligence in rendering its Decision.

[Note 2] While the court notes and appreciates that the parties’ counsel worked together to submit a thorough and detailed joint statement of material facts, many facts were ultimately not relevant to the court’s final determination. However, the parties’ agreed facts nonetheless are included. The court also notes the Town and the Board’s objection to the court relying on any extrinsic evidence in the face of an unambiguous Zoning Map. In that regard, this court notes that the ambiguity arises from the disconnect between the 2002 Zoning Map and the warrant article authorizing it.

[Note 3] A true copy of the Attorney General’s letter concerning Article 29 is included in the record as Exhibit F; a true copy of the version of the 2002 Map signed by the Attorney General’s Office is included as Exhibit G.

[Note 4] To a lesser degree, the Town also points to Collings v. Planning Bd. of Stow, 79 Mass. App. Ct. 447 (2011) as an example of the Appeals Court rejecting a similar claim to that of Growth Homes. However, Collings did not involve a property owner challenging a zoning map that had been erroneously amended or incorrectly drawn, adversely affecting his property’s zoning district. The Collings plaintiffs claimed the current zoning map and by-law guidelines failed to provide sufficient information that would allow them to locate boundaries of certain zoning districts on the ground, and sought to introduce new, updated plans drafted by their own expert surveyor that they claimed accurately depicted the boundaries of a flood plain. Collings, 79 Mass. App. Ct. at 458. The Appeals Court ultimately found that the plaintiffs “simply want[ed] to locate the boundary in a different place.” Id. at 457. Despite pointing out possible flaws in the town’s zoning map, they failed to demonstrate that they were unable to locate a boundary using the zoning map, and failed to meet their burden of showing that different boundaries were intended.

[Note 5] Growth Homes argues that, if Locus is ruled to be split-zoned with half remaining in an SRD 15 District, endorsement of its ANR Plan is automatically required because the lots will meet all dimensional and frontage requirements. To meet the dimensional requirements of the SRD 15 District, Growth Homes included in its calculations the portion of Locus falling within the SRD 40 District, a practice it argues is permitted, provided no “active” use of the SRD 40 area is proposed. The Board, however, did not reach the question of adequate frontage for property located in an SRD 15 District in its Decision; therefore the court will not address it,without first allowing the Board to do so in connection with this remand.