On September 14, 2016, Ellis B. Withington and Jennifer M. Withington; Nathan N. Withington, as Trustee of Whip's Farm Trust; Ralph W. Pausig and Lorna R. M. Pausig; Dennis R. Smith and June M. Smith; Louise W. Gillock; Sara E. Tallman, as Trustee of Tallman Nominee Trust; Melanie Schneider; and Lorenz B. Cueni, as Trustee of One Hundred Seventy Three Rear Old Sandwich Road Realty Trust (collectively, plaintiffs) filed a verified complaint against Timothy Grandy, Paul McAlduff, Robert Bielen, Malcolm MacGregor, and Kenneth Buechs, as they constitute the members of the Planning Board of the Town of Plymouth (collectively, Planning Board) and against T&K Retail, LLC. [Note 1] As originally filed, plaintiffs commenced their action pursuant to G. L. c. 41, § 81BB, appealing the action of the Planning Board endorsing a plan pursuant to the provisions of G. L. c. 41, § 81P. Plaintiffs filed an amended complaint on October 6, 2016, correcting the grounds for bringing the action to G. L. c. 249, § 4.
On November 14, 2017, the court (Scheier, J.) heard oral argument on cross-motions for judgment on the pleadings. [Note 2] In a decision entered herewith, this court (Lombardi, J.) determined plaintiffs have failed to show a reasonable likelihood that they have suffered injury to a protected legal right by the Planning Board having endorsed a plan entitled "Plan of Land in Plymouth, Mass. Prepared for T&K Retail, LLC" dated August 17, 2016, pursuant to the provisions of G. L. c. 41, § 81P. In accordance with the court's decision, it is
ORDERED and ADJUDGED that the amended complaint filed on October 6, 2016, is hereby dismissed with prejudice.
By the Court.
ELLIS B. WITHINGTON and JENNIFER M. WITHINGTON; NATHAN N. WITHINGTON, TRUSTEE WHIP'S FARM TRUST; RALPH W. PAUSIG and LORNA R. M. PAUSIG; DENNIS R. SMITH and JUNE M. SMITH; LOUISE W. GILLOCK; SARA E. TALLMAN, TRUSTEE TALLMAN NOMINEE TRUST; MELANIE SCHNEIDER; AND LORENZ B. CUENI, TRUSTEE ONE HUNDRED SEVENTY THREE REAR OLD SANDWICH ROAD REALTY TRUST v. TIMOTHY GRANDY, PAUL McALDUFF, ROBERT BIELEN, MALCOM MacGREGOR, and KENNETH BUECHS, as they Constitute THE PLANNING BOARD OF THE TOWN OF PLYMOUTH; AND T&K RETAIL, LLC.