O'BRIEN HOMES INC., and JOHN ARO and JUDITH ARO, v. TOWN OF LUNENBURG and EMERICK BAKAYSA, JOANNA BILOTTA-SIMEONE, THOMAS BODKIN JR. and NATHAN LOCKWOOD as members of the Town of Lunenburg Planning Board.

Introduction

For years, Plaintiff O'Brien Homes Inc. and its owner, Kevin O'Brien, have sought to develop an approximately 189 acre parcel of land off Howard Street in Lunenburg into single-family homes on lots of approximately 40,000 square feet each. The Planning Board approved O'Brien's preliminary subdivision plan, but then in 2009 denied the application for approval of the definitive subdivision plan. The ground the Board gave for that denial was its assertion that § 5.6 of the zoning bylaw applied, and that the subdivision failed to comply with that bylaw, which requires a proposed residential subdivision of twenty-five acres or more to either designate at least half of its land as permanent open space or use lots of at least five acres. In reliance on the town's representations in the court proceedings challenging that denial, upon which the court relied in upholding it, O'Brien subsequently prepared plans dividing the property into ten subdivisions of less than twenty-five acres each ("Aro Estates 1-10") and submitted them to the Board for definitive subdivision plan approval. Despite the fact that none of those subdivisions consisted of twenty-five acres or more, and thus (by the town's prior representations) would not be subject to the requirements of § 5.6, the Board denied approval for the Aro Estates 1-10 definitive subdivision plans, based primarily on its contention that they are effectively one subdivision and violate § 5.6.

These ten cases, coordinated (but not consolidated) for case management and trial purposes, are the plaintiffs' G.L. c. 41, § 81BB appeals from those denials. [Note 1] By agreement, the issues presented are as follows: (1) whether § 5.6 applies to the plans, (2) whether the G.L. c. 40A, § 6 process freeze applies to the entirety of the property, making the zoning bylaw's 40,000 square-foot minimum lot requirement applicable rather than the 80,000 square-foot minimum lot requirement that took effect after the filing of O'Brien's preliminary subdivision plan, (3) whether O'Brien has a sufficient interest in the subdivision property to maintain these appeals, and (4) whether the Board acted in bad faith in denying approval of the ten definitive plans. [Note 2] The parties further agreed to bifurcate the cases, going forward with a trial on the first three issues and leaving the bad faith claims to address at a later date, if necessary.

The trial on the first three issues took place before me, jury-waived. Based on the testimony and exhibits admitted at trial, my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that § 5.6 does not apply to the Aro Estates 1-10 definitive subdivision plans, the G.L. c. 40A, § 6 process freeze applies to those plans, and that the plaintiffs have a sufficient interest in the property to bring these appeals. The Board's decisions denying approval of the plans are thus vacated and reversed.

Facts

These are the facts as I find them after trial.

The Howard Street Property

Plaintiff O'Brien Homes, Inc. desires to subdivide and develop the approximately 189 acres of land at 318, 384-390, 400, and 460 Howard Street (hereinafter the "Howard Street Property"). All of it is in Lunenburg's Outlying District, which permits single-family homes as a matter of right.

O'Brien Homes owns 384-390 Howard Street, which it acquired on April 29, 2008. The company's owner, Kevin O'Brien, [Note 3] owns 460 Howard Street in his capacity as trustee of the 460 Howard Street Trust, which he acquired on October 23, 2008. These properties together consist of approximately fifty acres of land.

When these actions commenced on May 9, 2013, Intervener-Plaintiffs John and Judith Aro owned the property at 318 Howard Street and Mr. Aro owned the property at 400 Howard Street, which together consist of approximately 139 acres of land. Beginning in January 2007, O'Brien Homes, Inc. had the 318 and 400 Howard Street properties under contract to purchase from Mr. and Mrs. Aro. Their purchase and sale agreement, as amended by a Settlement Agreement arising out of other litigation between them, expired on August 1, 2013 with no right of further extension. On February 26, 2014, the Aros appointed O'Brien as their permitting agent and representative for the development of 318 and 400 Howard Street. Thereafter, on December 1, 2015, Mr. and Mrs. Aro conveyed the 318 Howard Street property to O'Brien Homes, Inc., and Mr. Aro granted O'Brien Homes, Inc. a right of first refusal for the purchase the 400 Howard Street property. O'Brien Homes, Inc. is the current owner of 318 Howard Street, and Mr. Aro owns 400 Howard Street subject to O'Brien's right of first refusal.

O'Brien's Prior Subdivision Plans

On April 3, 2008, O'Brien filed an application for approval of a preliminary subdivision plan, proposing to divide the Howard Street Property into 135 single-family residential lots connected by a network of interior roadways, three of which intersect with Howard Street (a public way). At that time, under the town's zoning bylaw, the minimum required lot area in the Outlying District in which the Howard Street Property is located was 40,000 square feet. See Protective Bylaw, § 5.1.2.1 (May 28, 2008). The minimum required lot area for that district subsequently increased to 80,000 square feet. See Protective Bylaw, § 5.1.2.1 (May 3, 2014).

On August 11, 2008, the Board approved the preliminary subdivision plan and indicated that it would review the plan at the definitive subdivision plan stage for compliance with § 5.6 (entitled "Cluster Development") of the town's zoning bylaw. [Note 4] Under § 5.6, any proposed development of single family homes in a subdivision of twenty-five acres or more in an Outlying, Residence A or Residence B District must set aside at least fifty percent of its land as permanent open space or, in lieu of such development, use lots of at least five acres with no more than one dwelling per lot. See Protective Bylaw, § 5.6.

On February 25, 2009, O'Brien submitted a definitive subdivision plan, proposing to develop the Howard Street Property as a single subdivision with 135 single-family residential lots. On May 19, 2009, the Board denied approval of that plan on the ground that it failed to satisfy § 5.6. [Note 5]

O'Brien then appealed that denial to this court pursuant to G.L. c. 41, § 81BB and, in addition, challenged the validity of § 5.6 and the Board's application of that provision pursuant to G.L. c. 240, § 14A. On July 27, 2010, I granted partial summary judgment in favor of the Board, holding that § 5.6 was valid on its face and as applied. See O'Brien Homes Inc. v. Bakaysa, 18 LCR 395 , 2010 WL 2966636 at *7 (July 27, 2010) (Long, J.) ("O'Brien I").

Consistently with the Board's representations regarding the requirements of § 5.6 made during those proceedings, I further held that "[the Howard Street Property] can still be subdivided and developed by meeting the requirements of § 5.6 (resulting in either smaller or fewer homes), or by re-planning its development into separate subdivisions of less than twenty-five acres." [Note 6] Id. at *6 (emphasis added). Judgment dismissing O'Brien's claims entered on March 28, 2011, and the Appeals Court dismissed O'Brien's subsequent appeal for lack of prosecution on November 22, 2011.

In reliance on the Board's representations and the court's findings that separate subdivisions of 25 acres or less could be built on these 189 acres without § 5.6 applying, O'Brien's project engineers and design consultants continued their design and testing work on the Howard Street Property, focusing their efforts on producing plans that complied with the requirements of § 5.6 as described by the Board in the O'Brien I proceedings (ten separate subdivisions of twenty-five acres or less apiece, phased one after the other) and addressed the other reasons for the Board's denial of the 2009 plan. Throughout 2010, 2011, and into 2012, they completed several different plans, presented their work to the Board and other town representatives on an informal basis for feedback, and, based on that feedback, completed additional design work and testing on the property. [Note 7] Ultimately, on October 15, 2012, O'Brien submitted applications for approval of the ten under twenty-five-acre subdivisions at issue in this case, Aro Estates 1-10, which are discussed in further detail below. [Note 8]

Aro Estates 1-10

The Aro Estates 1-10 definitive subdivision plans together depict the division of the Howard Street Property into 131 approximately 40,000-square-foot single-family residential lots. [Note 9] Each is an independent subdivision, divided as follows: Aro Estates 1 (24.6 acres with 18 lots); Aro Estates 2 (24.3 acres with 19 lots); Aro Estates 3 (17.7 acres with 17 lots); Aro Estates 4 (23.9 acres with 21 lots); Aro Estates 5 (19.8 acres with 20 lots); Aro Estates 6 (20.5 acres with 16 lots); Aro Estates 7 (8 acres with 5 lots); Aro Estates 8 (23.4 acres with 12 lots); Aro Estates 9 (9.6 acres with 5 lots); and Aro 10 (22.7 acres with 2 lots). Because each subdivision is less than twenty-five acres, none is subject to the requirements of § 5.6.

The overall layout of Aro Estates 1-10 is similar to the layout of the 2009 plan previously rejected by the Board. This is hardly surprising, since the topography and drainage options of the overall site stay the same and all potential development plans must be drawn in recognition of these realities. However, as a result of O'Brien's efforts to resolve the Board's issues with the 2009 plan, the plans differ in several ways. These differences include the following. Aro Estates 1-10 has only two intersections with Howard Street; one of the three roadways connected to Howard Street on the 2009 definitive plan was eliminated to address the Board's concern that three intersections would be unsafe. Also, Aro Estates 1-10 does not contain certain wetlands crossings depicted on the 2009 definitive plan with which the Board took issue. In addition, the Aro Estates 1-10 plans include a modified version of the stormwater management and drainage design set forth on the 2009 plan. Most significantly, while the 2009 plan is a single subdivision, Aro Estates 1-10 consists of ten independent subdivisions. As the town itself indicated would be not only acceptable but "ideal[] from a perspective of good planning principles [with a] logic as to how [the phases] configured would work together", [Note 10] the ten subdivisions were designed as though each subdivision ultimately would be developed, and each is designed in such a way that it can be connected to the others. For example, their respective roadways are part of a larger interconnected roadway system that extends over the other subdivisions, and they are serviced by a stormwater management system with components located on different subdivisions. This is understandable and sensible and, as the town itself recognized, to do otherwise would violate both "logic" and "good planning principles." [Note 11]

O'Brien intends for development to occur in phases, one subdivision at a time in numerical order. While it would be logistically practical to do such phased, interrelated development, it is not necessary. Each subdivision could be developed independently as a stand-alone project without regard to the development of the other subdivisions and, depending on sales, it is quite possible that some of the subdivisions may either not be built or will subsequently be modified. [Note 12]

The Board's Disapproval

As previously discussed, O'Brien filed applications for approval of the Aro Estates 1-10 definitive subdivision plans in October 2012. After approximately six months of peer review by the Board's engineer, [Note 13] by ten written decisions filed with the town clerk on April 25, 2013, the Board denied approval of each of the Aro Estates 1-10 definitive subdivision plans. [Note 14] The Board's primary reason for the denials was its contention that the plans did not satisfy the requirements of § 5.6 because, in its view, each subdivision was "not an independent subdivision but [] merely a phase of a larger 135-lot subdivision covering all 189 acres, a subdivision with bears a very strong resemblance to the plan originally filed in 2008." The Board also concluded that to the extent the Aro Estates 1-10 plans complied with § 5.6, the Howard Street Property was not entitled to zoning freeze protection from the applicable minimum lot requirement increase from 40,000 square-feet to 80,000 square-feet, and that the plans, with lots of approximately 40,000 square-feet, violated the 80,000 square-foot minimum lot requirement. [Note 15]

O'Brien subsequently timely appealed each of the Board's decisions to this court pursuant to G.L. c. 41, § 81BB.

Analysis

As framed by the parties, there are three issues now before the court: (1) whether § 5.6 applies to the Aro Estates 1-10 plans, (2) whether the process freeze under the fifth paragraph G.L. c. 40A, § 6 applies to the Howard Street Property, and (3) whether O'Brien has a sufficient interest in the Howard Street Property to maintain these appeals. [Note 16]

Section 5.6

Whether § 5.6 applies to the Aro Estates 1-10 plans is a matter of interpretation of the town's zoning by-law and thus a question of law for the court, governed by the traditional principles of statutory construction. See Doherty v. Planning Bd. of Scituate, 467 Mass. 560 , 567 (2014). The court "accord[s] deference to a local board's reasonable interpretation of its own zoning bylaw . . . [but] with the caveat that an 'incorrect interpretation of a statute . . . is not entitled to deference.'" Id. at 566 (quoting Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 475 (2012)).

A court is to construe a statute or bylaw according to the legislative body's intent, "ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.'" Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725 , 729 (2013) (quoting Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745 , 749 (2006)). The court first looks to the statute or bylaw's language, and, if its meaning is plain and unambiguous, the plain wording shall be enforced unless doing so would "'yield an absurd or unworkable result.'" Shirley Wayside Ltd. Partnership, 461 Mass. at 477 (quoting Adoption of Daisy, 460 Mass. 72 , 76 (2011)). The court's objective is "to give effect 'to all its provisions, so that no part will be inoperative or superfluous.'" Shirley Wayside Ltd. Partnership, 461 Mass. at 477 (quoting Connors v. Annino, 460 Mass. 790 , 796 (2011)).

As previously discussed, the Board's primary reason for denying approval of the Aro Estate 1-10 plans (all others were subsequently waived, see n.15, supra) was its contention that those plans violate § 5.6. That provision provides, in pertinent part:

5.6.2.1 In a Residence A, Residence B, or Outlying District, where Subdivisions, Planned Residential and Mixed Residential lots or exclusive use areas proposed to be developed with single family dwellings consist of twenty-five (25) acres or more, the following conditions must be met, pursuant to approval of a Definitive Plan in accordance with the Rules and Regulations Governing the Subdivision of Land, adopted by the Lunenburg Planning Board.

5.6.3 Intensity

a) Dwelling units shall be developed on a maximum of fifty percent (50%) of the land within the development, with the remaining fifty percent (50%) of the land being designated as permanent open space. Not more than ten percent (10%) of the open space shall consist of wetlands or land under water or land with a slope in excess of fifteen percent (15%). [Note 17]

b) In lieu of Cluster Development as shown above (5.6.3.a), a site can be developed in lots with a minimum of five (5) acres each, each lot may have no more than one (1) dwelling.

Protective Bylaw, § 5.6 (emphasis added).

Section 5.6 clearly and unambiguously provides that it applies to single-family residential subdivisions that are twenty-five acres or more in certain zoning districts. The provision simply does not apply to subdivisions of less than twenty-five acres, such as each of the Aro Estates 1- 10 subdivisions. This interpretation of § 5.6 is consistent with my prior holding in O'Brien I as well as the Board's representations during those proceedings regarding its own interpretation of the bylaw. See O'Brien I, 2010 WL 2966636 at *6 and n.6, supra.

Under § 5.6, the Board has no discretion to evaluate whether an under twenty-five acre subdivision is truly an "independent" subdivision. Nor does the Board have discretion under that section to consider multiple under-twenty-five-acre subdivisions together as one larger development. An interpretation of § 5.6 as allowing the Board to do so is both unreasonable and incorrect. In any event, in accordance with my factual findings set forth above, I find and rule that the ten subdivisions are separate subdivisions for purposes of § 5.6 analysis. The Board thus erroneously applied § 5.6 to the Aro Estates 1-10 definitive subdivision plans.

Furthermore, under the doctrine of judicial estoppel, the Board is estopped from taking the position that the Howard Street Property cannot, consistently with § 5.6, be subdivided into several under twenty-five-acre subdivisions. "'Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding.'" Otis v. Arbella Mut. Ins. Co., 443 Mass. 634 , 639–640 (2005) (quoting Blanchette v. School Comm. of Westwood, 427 Mass. 176 , 184 (1998)). "[T]he 'circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle.'" Otis, 443 Mass. at 640 (quoting New Hampshire v. Maine, 532 U.S. 742, 750 (2001)). The court's application of the principle "to a particular case is a matter of discretion," and is generally "appropriate whenever 'a party has adopted one position, secured a favorable decision, and then taken a contradictory position in search of legal advantage.'" Otis, 443 Mass. at 640-641 (quoting InterGen N.V. v. Grina, 344 F.3d 134, 144 (1st Cir. 2003)).

As noted above, in O'Brien I, the Board took the position that one could, consistently with the requirements of § 5.6, subdivide a parcel larger than twenty-five acres by "break[ing] it down into a series of subdivisions that would be 25 acres." Land Court Case No. 09 PS 402299, Summary Judgment Argument Transcript at p. 44 (Feb. 26, 2010). Based on that and other reasons, I subsequently ruled in the Board's favor, upholding the validity of § 5.6. See O'Brien I, 2010 WL 2966636 at *6-*7. The Board's position in these proceedings is directly contrary to its position regarding § 5.6 in O'Brien I, see supra n.6, and, under the circumstances, is unfair and prejudicial to O'Brien, whose Aro Estates 1-10 plans are largely based on the Board's representations regarding § 5.6 made during those proceedings. I thus find that the application of judicial estoppel is appropriate in this case. See Otis, 443 Mass. at 640-641 (describing "two fundamental elements" of judicial estoppel claim as one, "the position being asserted in the litigation [is] directly inconsistent, meaning mutually exclusive of, the position asserted in a prior proceeding," and two, "the party . . . succeeded in convincing the court to accept its prior position" (internal quotations omitted)).

The Board contends that, as a governmental body, it is not subject to the doctrine of judicial estoppel. The town has made this argument in other proceedings, and the courts have made clear that it is incorrect. See Lunenburg v. Gallagher-Alleva, 72 Mass. App. Ct. 1113 , 2008 WL 3455830 at *2 (2008) (Mem. & Order Pursuant to Rule 1:28); Lunenburg v. Alleva, 15 LCR 386 , 393, 2007 WL 2069896 at *11 (2007) (Long, J.), aff'd Lunenburg v. Gallagher-Alleva, 72 Mass. App. Ct. 1113 , 2008 WL 3455830 (2008) (Mem. & Order Pursuant to Rule 1:28) ("[I]n court a town is bound by the same rules as any other litigant."). As the Appeals Court held:

the town's central contention, that, as a municipality, it is not subject to judicial estoppel . . . is not correct; as we have explained, [t]he primary concern of the doctrine of judicial estoppel is to protect the integrity of the judicial process. That concern would be ill served if those intimately involved in that process, litigants, attorneys, and judges, could not rely on declarations of settlement made to the court. Municipalities that litigate before courts are bound in this regard by the same rules as other litigants. Indeed, the integrity of the judicial process requires it.

Lunenburg v. Gallagher-Alleva, 2008 WL 3455830 at *2 (internal citation and quotations omitted).

The Zoning Freeze

The fifth paragraph of G.L. c. 40A, § 6 "protects landowners from having to comply with amendments to the zoning bylaw or ordinance that are adopted after the landowner has submitted a subdivision plan to a planning board." Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 525 (2009). That provision provides, in pertinent part,

If a definitive plan, or a preliminary plan followed within seven months by a definitive plan, is submitted to a planning board for approval under the subdivision control law, and written notice of such submission has been given to the city or town clerk before the effective date of ordinance or by-law, the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of the first such submission while such plan or plans are being processed under the subdivision control law. . . .

G.L. c. 40A, § 6, fifth par.

In essence, this "'freez[es] the applicable bylaws governing the land shown on the subdivision plan as of the time when the plan is first submitted to the planning board and while the plan is being processed under the subdivision control law (the process freeze).'" [Note 18] Krafchuk, 453 Mass. at 525 (quoting Kitras v. Zoning Adm'r of Aquinnah, 453 Mass. 245 , 252 (2009)). The so-called process freeze may take effect following the disapproval of a timely filed definitive plan:

[W]here the deliberative process between a planning board and an applicant regarding a timely filed definitive plan results in a disapproval decision, but progresses in a continuous fashion, wherein the applicant (1) timely files an appeal from the board's decision; and (2) submits within a reasonable time an amended plan that addresses the reasons for disapproval; the process freeze provision of G.L. c. 40A, § 6, fifth par., continues to apply to the land that is the subject of the plan.

Krafchuk, 453 Mass. at 528.

Here, the Howard Street Property is entitled to the benefits of the process freeze. O'Brien's preliminary subdivision plan was filed on April 3, 2008. Within seven months of the Board's August 11, 2008 approval of the preliminary subdivision plan, on February 25, 2009 O'Brien submitted an application for approval of a definitive subdivision plan. O'Brien timely appealed the Board's May 19, 2009 decision denying approval of that plan to the Land Court (the O'Brien I proceedings), which entered judgment on March 28, 2011. The Appeals Court dismissed O'Brien's subsequent appeal on November 22, 2011. Less than one year later, on October 15, 2012, O'Brien submitted the Aro Estates 1-10 definitive subdivision plans, which address the reasons for the Board's prior disapproval.

I find that O'Brien submitted the Aro Estates 1-10 plans within a reasonable time after the Board's initial disapproval. During the O'Brien I proceedings and up until the time of the Aro Estates 1-10 submissions, progress on O'Brien's development plans proceeded reasonably and continuously. O'Brien had numerous different plans produced and extensive testing conducted on the property to address the Board's issues with the 2009 plan. O'Brien and its representatives regularly communicated with the Board and other town representatives regarding their progress and their different proposals for the property, attempting to reach a mutually agreeable development plan. Furthermore, while I make no finding at the present time as to whether the Board acted in bad faith, the evidence suggests that, at the very least, the Board and other town officials did not reciprocate O'Brien's efforts to progress the approval process and that this delayed O'Brien's submissions.

Because the process freeze applies, the zoning bylaw in effect at the time of O'Brien's initial submission to the Board governs. The Howard Street Property is therefore subject to the zoning bylaw's former minimum lot requirement of 40,000 square feet and not the current minimum lot requirement of 80,000 square feet.

The Plaintiffs' Interests in the Property

Finally, the Board contends that the court should dismiss these actions on the ground that O'Brien neither owns nor controls the 400 Howard Street property. I disagree.

When the applications for Aro Estates 1-10 were made and when these actions were filed, O'Brien owned a portion of the Howard Street Property and had the remainder, including 400 Howard Street, under contract to purchase from the Aros. After that contract expired, the Aros appointed O'Brien as their permitting agent for 400 Howard Street. Mr. Aro presently owns the 400 Howard Street Property, and O'Brien has a right of first refusal for its purchase.

Regardless of whether O'Brien has a sufficient interest in the property to have standing to pursue these actions, the property owner, Mr. Aro, who has such standing, is also a plaintiff. See Memorandum and Order on Defendants' Motion to Dismiss at 2 (April 18, 2014). As I previously decided, the Board's contention that O'Brien lacks a sufficient interest in the property was mooted by the Aros joining these cases. See id. There is no reason to now hold otherwise, for the Aros have not "succeed in selling any of their land to an owner who does not join as a party to this action in alignment with O'Brien," nor have "the positions of O'Brien and the Aros ever cease[d] being aligned." Id.

Conclusion

For the foregoing reasons, the Board's decisions denying O'Brien's applications for approval of the Aro Estates 1-10 definitive subdivision plans are VACATED and REVERSED. These matters are REMANDED to the Board to take further action consistent with this Decision.

Counsel is directed to promptly contact the Sessions Clerk to schedule a status conference to discuss whether the plaintiffs desire to pursue their bad faith claim and, if so, to schedule appropriate proceedings. If the plaintiffs no longer wish to pursue that claim, judgment shall enter accordingly.

SO ORDERED.