INTRODUCTION
The dispute in this matter arises from Plaintiffs' efforts to develop their properties located in Middleton, Massachusetts. As part of that effort, in March 2013, Plaintiffs applied to the Town of Middleton Planning Board (the "Board") seeking approval of a "Roadway Improvement Plan for Old East Street in Middleton, Mass." (the "Improvement Plan") pursuant to the Board's rules and regulations for "Providing Adequate Access to Existing Lots." The Board voted to deny Plaintiffs' application and, on May 22, 2013, filed its written decision with the Middleton Town Clerk (the "Denial"). On June 7, 2013, Plaintiffs appealed to this court by way of a four-count Complaint asserting multiple legal theories and statutory bases for invalidating the Denial.
Following a Summary Judgment Decision issued on December 15, 2014, this court entered Judgment dismissing all of Plaintiffs' claims on jurisdictional grounds. Plaintiffs appealed. By Summary Decision issued pursuant to Appeals Court Rule 1:28, entered on
October 18, 2016, the Appeals Court reversed this court's Judgment "insofar as it dismisses count I of the complaint (certiorari)," and remanded the case to the Land Court for further proceedings under Count I. Country Places Dev., LLC v. Town of Middleton, 90 Mass. App. Ct. 1111 , *5 (October 18, 2016). The remainder of the December 15, 2014 Judgment was affirmed.
On October 31, 2016, this court issued a Scheduling Order after Remand, consistent with Land Court Standing Order 2-06, setting forth the schedule and procedures to be followed with respect to certiorari review of the Board's Denial. On January 27, 2017, as required by the Standing Order, the Defendant Board filed a certified copy of its record of proceedings relative to the Plaintiffs' application for approval of their Improvement Plan (the "Record"). Under Standing Order 2-06, the next step in the process calls for one or both parties to file a motion for judgment on the pleadings, based upon the certified record. Plaintiffs filed their Motion for Judgment on the Pleadings on February 24, 2017, just a few days after also filing a Motion for Leave to Present Testimony of Alleged Irregularities in Procedure before the Board, and a Motion to Strike certain materials from the Record. [Note 1] The Board opposed Plaintiffs' Motions and cross-moved for Judgment on the Pleadings in its favor on March 27, 2017. [Note 2]
The court heard the Parties' Motions for Judgment on the Pleadings on June 14, 2017. At that hearing, it came to everyone's attention for the first time that the Record certified to the court did not contain a so-called "Profile Plan" that Plaintiffs contend was included with their application to the Board to show their proposed improvements . The court sought the Board's clarification of the matter and ordered that the Record be supplemented with such profile plan, if one was submitted, or that additional certification be made by the Board if a profile plan is not part of the Board's official file.
On June 26, 2017, the Board filed a "Certificate of the Town Planner" stating that such a plan was not part of the Board's official file for the Application. Plaintiff's counsel, by letter, contested this assertion, but never filed a motion for leave to present additional evidence pursuant to Land Court Standing Order 2-06, ¶ 3(c). Now, for the reasons set forth below, I conclude on the Record before me, as supplemented with the video recording of the Board's May 8, 2013 meeting, that the Board's Denial was not arbitrary or capricious.
THE RECORD
The Record certified to the court, as supplemented, consists of the following:
1. A video recording of the Middleton Planning Board Meeting held on May 8, 2013 (CD, 47 minutes) [Note 3]
2. A 5-page document containing the "Planning Board Meeting Agenda, May 8, 2013 7:30 PM" (page 1) and the "Minutes of the Meeting, May 8, 2013" (pages 2-5)
3. A 2-page document entitled "Certificate of Vote, Denial of Road Improvement Plan to Provide Adequate Access to Lots on Old East Street," stamped "RECEIVED May 22, 2013, Town Clerk's Office Middleton, MA"
4. A 6-page document entitled "Affidavit of Title," stamped as recorded with the Essex County (Southern District) Registry of Deeds (the "Registry") in Book 25059, Page 538 on November 9, 2005
5. Plaintiffs' application package, stamped "RECEIVED March 28, 2013, Town Clerk's Office Middleton, MA" (the "Application"), consisting of a 2-page cover letter, with 16 enclosures listed and described in the cover letter as follows:
1. Plan in conformance with the Submittal and Design Standards of the above-referenced Rules and Regulations prepared by Christian & Sergi, Inc. entitle[d] "Roadway Improvement Plan For Old East Street, In Middleton, Mass. Prepared for Jeff Horne, Date; October 22, 2012".
2. Deed from Peabody to Towne dated December 22, 1910, recorded in Book 2055, Page 113. (Locus M-1)
3. Deed from Towne to Ferguson dated February 23, 1917, recorded in Book 2358, Page 587. (Locus M-1)
4. Deeds from Heirs of Ferguson to David and Jonathan Webber, Trustees (Book 15939, Pages 573, 574, and 575)
5. Deed from Cyrus Killam to Frank Killam dated June 20, 1908, recorded in Book 1935, Page 214. (Locus M-2)
6. Deed of Heirs of Prest to Ogden dated September 1, 1951, recorded in (Book 4177 Page 106)
7. Deed of Estate of Ogden to Bravacos dated September 14, 1976, recorded in Book 6279, page 168. (Locus M-2)
8. Deed of Bravacos Trustee to Bravacos dated December 29, 1988 and recorded in Book 9842, Page 43)
9. Plan of Land in Middleton & Boxford Mass Owned by Henry and Barbara Sawyer dated April 8, 1947 and recorded in Plan Book 197, Plan 88.
10. Plan of Land in Middleton, Mass surveyed for the Estate of Charles and Roger Gould dated August 21, 1978, and recorded in Plan Book 150, Plan 13.
11. Plan of Land in Middleton of Old East Street Dated February 15, 1980 recorded in Book 159, Page 52.
12. Plan showing right of way of Eastern Massachusetts Electric Co. dated December 1925 and recorded in Plan Book 45, Plan 42.
13. Deed of Gould et al to Gould dated June 12, 1909 recorded in Book 1982, Page 54.
14. Deed of Peters to Gould dated August 3, 1952, recorded in Book 3922, Page 599.
15. Deed of Burns to Gould dated July 30, 1953, recorded in Book 3997, page 172.
16. Deed of Gould to London dated September 22, 1955 and recorded in Book 4208, Page 94.
6. A plan entitled "Existing Conditions Plan for Lots M-1 & M-2 Old East Street in Middleton, Mass." prepared for Jeff Horne, dated September 28, 2012, prepared by Christiansen & Sergi, Inc.
7. A plan entitled "Roadway Improvement Plan for Old East Street in Middleton, Mass." prepared for Jeff Horne, dated October 22, 2012, prepared by Christiansen & Sergi, Inc. (This appears to be a full-sized version of item no. 1 listed in the Application cover letter.)
8. A plan entitled "Plan of Land Located in Boxford & Middleton," dated February 11, 2009, prepared by Eastern Land Survey Associates, Inc., endorsed as "approval under the subdivision control law not required ("ANR") on April 8, 2009 by the Middleton Planning Board, and on April 6, 2011 by the Boxford Planning Board and recorded on May 20, 2011 at the Essex South Registry of Deeds as Plan 95 in Plan Book 428 ("the 2009 ANR Plan").
Additionally, the court considers the document labeled "250 Attachment 1," appended to the Rules and Regulations Governing the Subdivision of Land as codified in Chapter 250 of the Middleton Code (attached to Plaintiffs' Complaint as Exhibit C), which sets forth the regulations for "Providing Adequate Access to Existing Lots." These regulations govern Plaintiffs application and are hereinafter referred to as the "Adequacy Regulations."
STANDARD OF REVIEW
The purpose of an action in the nature of certiorari is to "correct errors in proceedings which are not according to the course of common law, and which proceedings are not otherwise reviewable by motion or by appeal." G. L. c. 249, § 4; Lippman v. Conservation Comm'n of Hopkinton, 80 Mass. App. Ct. 1 , 5 (2011). The requisite elements for availability of certiorari are (1) a judicial or quasi-judicial proceeding; (2) a lack of all other reasonably adequate remedies; and (3) a substantial injury or injustice arising from the proceeding under review. Williams Auto Elec. Services, Inc. v. Hebert, 63 Mass. App. Ct. 182 (2005).
The reviewing court is limited to correcting "substantial errors of law apparent on the record adversely affecting material rights." FIC Homes of Blackstone, Inc. v. Conservation Comm'n of Blackstone, 41 Mass. App. Ct. 681 , 684 (1996). The review is not de novo, but
instead is "limited to what is contained in the record of the proceedings below." Police Comm'r of Boston v. Robinson, 47 Mass. App. Ct. 767 , 770 (1999).
The standard of review in a certiorari action varies according to nature of the action sought to be reviewed. Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779 , 792 (2012). Where the action being reviewed is a decision involving a board's exercise of administrative discretion, rather than a decision made in an adjudicatory hearing, the court applies the "arbitrary and capricious" standard. Id. In doing so, the court does not determine whether the record contains substantial evidence to support the board's action, but instead determines whether "'there is no ground which 'reasonable [persons] might deem proper to support it.'" Id. (quoting T.D.J. Development Corp. v. Conservation Commission of North Andover, 36 Mass. App. Ct. 124 , 128 (1994) (alteration in original).
In a certiorari action, the reviewing court "may not substitute its judgment for that of the agency," but instead "must show a great degree of deference to administrative decisions, particularly those that reflect the intimate knowledge, experience, and judgment of local officials." Johnson Prod., Inc. v. City Council of Medford, 353 Mass. 540 , 541 n.2 (1968). However, the board's finding "must be set aside if 'the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability to the contrary.'" Rogers v. Conservation Comm'n of Barnstable, 67 Mass. App. Ct. 200 , 205 (2006) (quoting New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456 , 466 (1981).
DISCUSSION
Here, as observed by the Appeals Court, the Board's authority under the Adequacy Regulations involves considerable administrative discretion in evaluating the adequacy of the design and construction of roadways. Thus, I review the Board's denial of an application under the Adequacy Regulations using the arbitrary and capricious standard. Applying the arbitrary and capricious standard to the facts and circumstances of the instant case as evidenced in the Record and in light of the Adequacy Regulations, I find that the evidence points to no possibility of an outcome other than denial of Plaintiffs' Application, given that Plaintiffs' Application does not demonstrate eligibility for the approval sought.
The Adequate Access Review Process
The stated purpose of the Adequacy Regulations is to provide regulations by which an applicant can improve a way existing prior to subdivision control in the Town without having to obtain definitive subdivision approval. The first two numbered paragraphs of the Adequate Access Regulations provide, in full:
1. Prior to issuing a building permit for new construction, the Building Inspector must obtain a determination from the Planning Board that the lot upon which the building is being erected has frontage upon a street. The Zoning Bylaw defines a street as "a way which, in the reasonable judgment of the Planning Board, has sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic existing and/or resulting from the development of abutting land and for the installation of municipal services to such land(s) and/or buildings located on or to be constructed on such land and which complies with one of the following criteria: (1) a way which the Town Clerk certifies is used as and maintained regularly and consistently as a public way by the Town to the same extent to which other public ways are maintained by the Town; or (2) a way shown on a plan previously approved and endorsed by the Planning Board and recorded at the Registry of Deeds; or (3) a way existing prior to the date on which subdivision control was adopted by the Town."
2. For a lot which has frontage on one of the aforementioned ways, which lot existed prior to the date on which subdivision control was adopted by the Town (March 15, 1955), but does not meet the construction standards described above (i.e., sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic existing
on such land"), the Planning Board hereby adopts rules and regulations by which an applicant may improve said way without submitting a definitive plan under the Board's "Rules and Regulations Governing the Subdivision of Land in Middleton, MA." [Emphasis added].
These two introductory paragraphs of the Adequacy Regulations plainly identify the limited circumstances in which those Regulations may be used by an applicant to improve a way "in existence" which lacks sufficient width, suitable grades, and adequate construction "without submitting a definitive plan. . . ." That is, the subject way must fall within one of the three categories of ways listed in the Zoning By-law definition of street, and the lot having frontage on the way in question must be one which "existed prior to the date on which subdivision control was adopted by the Town (March 15, 1955)." Paragraph 3 of the Adequate Access Regulations then sets forth the rules and regulations governing the application and review procedures in such circumstances.
Paragraph 3A of the Adequacy Regulations more specifically circumscribes the Board's ability to apply those Regulations, and expressly imposes an obligation on the applicant to demonstrate to the Board that both the way and the lot meet the prerequisites for applicability of the Regulations, providing in pertinent part:
Applicability. Prior to implementing these rules, the Board must find that the lot in question falls under the criteria described in the above paragraphs [nos. 1 and 2]. To make this determination, the Board requires applicants to submit, as part of their application, the following information:
1) Existence of lot prior to subdivision control. To demonstrate that the lot in question existed prior to the date on which subdivision control was adopted by the Town, the applicant shall:
a) *Provide a copy of the recorded deed and plan (if any) as recorded in the Essex County Registry of Deeds, which shows that the lot existed in its current form prior to March 15, 1955.
2) Existence of Way.
c) If the applicant is attempting to demonstrate that the lot in question has "frontage on a way existing prior to the date on which subdivision control was adopted by the Town, then the applicant shall:
[1] *Provide deeds, maps, and other documentation which shows that the road in question existed prior to March 15, 1955.
[2] *Provide evidence that the road has a history of being used as a traveled way.
[Emphases added.]
Plaintiffs' Application
Plaintiff Jonathan Webber is the record owner of Lot 6 and Plaintiff David Webber is the record owner of Lot 6A. On or about March 28, 2013, Plaintiffs applied to the Board for approval of a proposed "Road Improvement Plan" for the purpose of establishing that said lots have adequate frontage on Old East Street (the "Application"). According to the Application, the proposed Improvement Plan was submitted to "[demonstrate] that the applicant's property and the way providing access thereto and frontage thereon, were in existence well prior to the adoption of subdivision control by the Town of Middleton
, " and that the "road improvements will result in a way providing access to the Applicant's property which has sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic and the installation of municipal services."
The Application includes several deeds and plans, but none of the deeds or plans submitted demonstrate that either Lot 6 or Lot 6A "existed in its current form prior to March 15, 1955." Indeed, paragraph 10 of Plaintiffs' Complaint in this matter alleges that "Lots 6 and 6A were created by an ANR Plan approved by the Planning Board on April 8, 2009 and recorded with the Essex Registry of Deeds Southern District on May 20, 2011 at Plan Book 428, Page 95" (the "2009 ANR Plan"). [Note 4] A copy of the 2009 ANR Plan is in the Record. [Note 5], [Note 6]
Notably, the deeds identified in the Application cover letter as "Locus M-1" and "Locus M-2" describe much larger landholdings. The 1910 deed, which is purportedly for "Locus M-1," describes a parcel of approximately 190 acres in Middleton; the 1917 deed, which is also purportedly for "Locus M-1," describes 38 acres of land in Boxford and Middleton. The 1908 deed, which is purportedly for "Locus M-2," describes a woodland parcel of five acres in Boxford, whereas the second deed, which is also purportedly for "Locus M-2" is dated 1976 and describes a 16-acre parcel on East Street (not "Old East Street") and Locust Street. Plainly, none of these deeds establish that either Lot 6A or Lot 6 has been in existence and unchanged since prior to March 15, 1955.
Additionally, the several deeds and plans submitted with the Application are insufficient to demonstrate that "Old East Street" was a way in existence before March 15, 1955, or that it has a history of being used as a travelled way. The 1910 and 1917 deeds refer to "an old county road." Also, reference is made in the 1908 deed of the Boxford parcel to "an old road." But nothing submitted by Plaintiffs attempts to relate these references to the "Old East Street" which Plaintiffs seek to improve. Similarly, Plaintiffs' Application included portions of several deeds of other properties in Middleton, executed in August, 1952, July, 1953, and September, 1955, which refer to "Old County Road" but again, there is nothing connecting these various and independent references to "Old East Street," or explaining its use prior to subdivision control.
Also included with the Application were copies of plans from the 1970s and 1980s depicting ways or portions of ways labelled as "Old East Street" or "Old Road;" a recorded 1925 plan, which depicts a portion of a "Private Road" intersecting the public way, East Street; and a plan dated April 8, 1947 and recorded in 1986, which labels a horseshoe shaped way connecting to East Street as "Old Road." The Application lacks any narrative explaining how these assorted deeds and plans demonstrate the existence and use of "Old East Street" as a travelled way.
The Denial
On May 8, 2013, the Board considered and denied the Application. As reflected in both the video and the minutes of that meeting, the vote taken was on a motion to deny the Roadway Improvement Plan based upon the Town Counsel's recommendation that conflicting information in the Registry of Deeds indicates that Old East Street is not a roadway meeting the qualifications of a roadway improvement plan. The written decision of the Board states the reason for denial as follows:
based upon documentation on record at the Southern Essex District Registry of Deeds and in the Assessor's Office for the Town of Middleton, the Roadway in question, "Old East Street" is not a roadway that meets one (1) of the three (3) criteria set forth in Section 1 of the Rules and Regulations regarding Providing Adequate Access to Existing Lots. In addition, the Plan itself does not provide adequate access.
In their Motion for Judgment on the Pleadings, Plaintiffs contend that the Board erred in finding that Old East Street is not one of the three types of ways listed in the first paragraph of the Regulations. Plaintiffs assert that the documentation they submitted to the Board is sufficient to establish that Old East Street is "a way existing prior to the date on which subdivision control was adopted by the Town" and that there is nothing in the record upon which the Board could have properly relied in concluding otherwise. [Note 7] Additionally, Plaintiffs assert that the record does not contain "substantial evidence" supporting the Board's conclusion that Plaintiffs' plan does not provide for adequate access, arguing that the Improvement Plan and Profile Plan [Note 8] included in their Application demonstrate that Old East Street is (or will be) adequate. For its part, the Board contends that the Application did not contain sufficient documentation to justify a finding that Old East Street is a "way in existence" prior to adoption of subdivision control in the Town, but that even if Old East Street might have been a way in existence prior to subdivision control, such a fact is irrelevant where the Application was seeking approval with respect to lots created subsequent to March 15, 1955. For the reasons discussed below, I am persuaded by the Defendants arguments.
1. Existence of "Old East Street"
Based upon the record before the Board, it was not arbitrary for the Board to conclude that the Application does not demonstrate that Old East Street qualifies as a "way in existence" prior to adoption of the subdivision control law in Middleton. The various deeds and plans provided with the Application are not self-evident, and no explanation was given as to how and when the subject way came into being, the history of its use, or how the various plans and deeds, taken together, establish the claimed status of Old East Street. Notably, Plaintiffs make no attempt to remedy the situation through their Motion for Judgment on the Pleadings, by including a detailed explanation of the documents they submitted to the Board. Rather, they gloss over the subject with a general assertion that the package of deeds and plans submitted as part of the Application "demonstrate[d] that old East Street is a way that has existed since prior to the adoption of the subdivision control law in Middleton." Plaintiffs' argument principally focuses on the lack of substantial evidence in the record to contradict their own documentation, including the fact that the Board's vote appeared to be based upon documents not presented during the meeting (and therefore not properly part of the record), and without giving the applicants the opportunity to review and respond to such documents.
The Board's proceedings, as evidenced by the video recording, were relatively informal, and quite short. I do not accept Plaintiffs' characterization of the May 8, 2013 meeting as an evidentiary-type hearing where the Board considered outside evidence and denied the Applicants an opportunity to review and respond to such evidence. [Note 9] To the contrary. The video of the Board's meeting plainly shows that the attorney representing the applicants was already aware of the issue of conflicting record information, when the Board Chairperson reported Town Counsel's recommendations on the Application. Rather than attempting to make a formal presentation of the Application to the Board, the applicant's attorney appeared to accept the Board Chairperson's position that resolving the issue of whether Old East Street is a type of roadway that meets the qualifications for an improvement plan is one best left to the courts. Indeed, when consulted by the Board Chairperson as to whether, given Town Counsel's recommendation, her preference was for the Board to deny the Application or to "take no action" on it, the applicants' attorney suggested that the Board deny the Improvement Plan rather than "take no action." She made no attempt to offer any explanation to the Board as to why Town Counsel might be mistaken, did not question the nature of the reportedly conflicting information, did not offer to walk the Board through the information in the Application package, and did not request a continuance to allow her to provide rebuttal information.
The standard here is not whether the Board could have concluded that Old East Street qualified as a way in existence prior to March 15, 1955 but, instead, whether "there is no ground which reasonable [persons] might deem proper to support" the Board's opposite conclusion. See Garrity, 462 Mass. at 792. Here, the Board's conclusion that it was unable to find that "Old East Street" met the criteria for a way eligible for improvement under the Adequacy Regulations was reasonable, considering (a) the insufficient and unexplained documentation submitted in the Application package relative to the status of Old East Street, (b) that (as reported at the meeting) the Board had been advised by Town Counsel of conflicting information in the Registry of Deeds which casts doubt on the status of Old East Street, and (c) that the attorney representing the applicants made no attempt to explain or supplement the Application, but simply acquiesced to a denial rather than have the Board take no action.
2. Existence of the Lots
While I find that the Board did not act arbitrarily or capriciously in denying the Application on the grounds that the subject way is not one which qualifies for review under the Adequacy Regulations, insufficient documentation as to the status of Old East Street is not the only fatal deficiency in the Application. Because the Application plainly demonstrates that Lot 6 and Lot 6A (aka Lot M-1 and Lot M-2) were created more than fifty years after the March 15, 1955 date on which the subdivision control law was adopted by the Town of Middleton, the Board lacked the power to approve Plaintiffs' Application under the Adequacy Regulations, even if Old East Street could be shown to qualify as a "way in existence." Thus, although the Board did not include lot ineligibility as a reason for denial of the Application, I am persuaded by the Board's argument in its Cross-motion for Judgment on the Pleadings that the status and condition of Old East Street are irrelevant in light of the fact that Lots 6 and 6A were created more than fifty years after March 15, 1955.
As discussed above, the Board may grant an adequacy approval pursuant to the Adequacy Regulations only "[f]or a lot which has frontage on one of the aforementioned ways, which lot existed prior to the date on which subdivision control was adopted by the Town (March 15, 1955) [emphasis added]." In their Complaint, Plaintiffs allege that Lots 6 and 6A were created by the 2009 ANR Plan. [Note 10] The 2009 ANR plan, which was in the Record before the Board, shows, the division of Lot 6 into two lots (Lot M-1 and Lot M-2), and none of the deeds or other plans submitted with the Application contradict this information. Therefore, since the Board could not make the requisite finding that the two subject lots "existed in [their] current form prior to March 15, 1955," it was without authority to approve the Application under the Adequacy Regulations, regardless of the status or condition of "Old East Street.
CONCLUSION
It was the Plaintiffs' burden to satisfy the Board that both the roadway and the lots it would serve meet the eligibility requirements for approval of a roadway improvement plan under the Adequacy Regulations. They did not do so. The documentation submitted to the Board did not adequately demonstrate either the status of Old East Street as a "way in existence" prior to adoption of subdivision control in the Town of Middleton, or that Lots 6 and 6A (aka Lot M-1 and Lot M-2) existed prior to said date and have remained unchanged. [Note 11] Because, Plaintiffs' Application did not satisfy both prerequisites for eligibility under the Adequate Access Regulations, I conclude that the Board's denial of the Application is neither arbitrary nor capricious. See Garrity, 462 Mass. at 792 (Board to be overturned only if "there is no ground which reasonable persons might deem proper to support it" (internal quotations and alterations omitted)).
On appeal, Plaintiffs also were unable to meet their burden to demonstrate to this court, through the Record of proceedings, that the Application was eligible for approval. [Note 12] Accordingly, Plaintiffs' Motion for Judgment on the Pleadings is DENIED, and the Defendants' Cross-Motion for Judgment on the Pleadings is ALLOWED. Judgment shall enter dismissing Count I. [Note 13]
COUNTRY PLACES DEVELOPMENT, LLC, JONATHAN WEBBER, and DAVID WEBBER v. THE TOWN OF MIDDLETON, and JOHN KNOTT, DAVID T. LEARY, SR., CHRISTINE M. LINDBERG, ROBERT ALDENBERG, BEVERLY A. POPIEISKI, AND LEAH MORESCHI as they constitute the Members of the TOWN OF MIDDLETON PLANNING BOARD.