MISC 16-000570

September 27, 2018

Middlesex, ss.



Plaintiffs Regina and John Conway reside on a roughly rectangular 1.79-acre parcel at 66 Main Street in Westford, Massachusetts. Defendants David Guthrie and Christopher Finneral own an abutting 6.8-acre property at 64 Main Street. 64 and 66 Main were once in a single tract. The Westford Planning Board approved a division of that tract in 1969, leaving 66 Main abutting the northwest side of Main Street and placing the 64 Main property behind 66 Main (if one were standing on Main Street).

Since 1969, in order to reach 64 Main from Main Street, one must travel a 30-foot right of way that runs over the southwest edge of 66 Main. This decision will call that right-of-way the "Conway Right of Way." The parties to this dispute agree that by deed, the owners of 64 Main enjoy an easement over the Conway Right of Way. They're allowed to use it "for all purposes for which streets and ways are commonly used in the Town of Westford. . . ."

Sometime after 1969, a single-family residence was built on 64 Main. The owners of that home (later demolished, relocated and rebuilt) used the Conway Right of Way for access to Main Street. Messrs. Guthrie and Finneral bought 64 Main in 2015. In 2016, they applied to the Westford Planning Board for approval of a definitive two-lot, two-residence subdivision of 64 Main. They contemplate dubbing the Conway Right of Way "Kinloch Drive." They plan on extending Kinloch Drive within a new 50-foot right of way that will be entirely within 64 Main's boundaries. That extension will proceed northwest from the end of the Conway Right of Way, jag to the north and northwest, and end in what's laid out as a cul-de-sac (although as will be seen later, Guthrie and Finneral have no duty as of yet to build a cul-de-sac). The two building sites will be north of where Kinloch Drive first jags to the north.

The Conways did not join in or otherwise consent to Guthrie and Finneral's subdivision application. The Planning Board nevertheless approved it, and the Conways timely appealed the Board's decision to this Court under G.L. c. 41, § 81BB.

The Conways have moved for summary judgment. They attack the Board's decision on four grounds. They first argue that the Board shouldn't have acted on Guthrie and Finneral's subdivision application because (a) the Board's subdivision regulations (the "Regulations," found in Chapter 218 of the Code of the Town of Westford) require all "owners . . . of all land" included in a request for approval of a subdivision to join in the subdivision application; (b) Guthrie and Finneral's subdivision includes the Conway Right of Way; (c) the Conways didn't sign Guthrie and Finneral's subdivision application; and thus (d) the application is incomplete. (This decision calls that argument the "Application Claim.") Second, the Conways contend that the two approved subdivision lots lack adequate frontage on a road or way. Third, the Conways submit that the Board improperly waived its requirement (with respect to the Conway Right of Way only) that all subdivision access ways be at least 50 feet wide. (This decision calls that waiver the "Width Waiver.") Last, the Conways assert that the Board improperly waived a requirement that a dead-end street like proposed Kinloch Drive terminate with a built cul-de-sac having a 70-foot outside curb radius. (This decision calls that waiver the "Cud-de-sac Waiver.")

Guthrie and Finneral have cross-moved for summary judgment on all four issues that the Conways raise. Guthrie and Finneral also dispute the Conways' standing under § 81BB to challenge the Board's approval. As this Court's jurisdiction to entertain the Conways' appeal depends on their standing, the Court addresses that issue first.

Pursuant to G.L. c. 41, § 81BB, only persons who are aggrieved by a planning board's decision concerning a definitive subdivision plan may appeal to the . . . Land Court. A person aggrieved within the meaning of G.L. c. 41, § 81BB, must assert 'a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.' The asserted basis for the claim also must be one that the statute intends to protect.

Krafchuk v. Planning Board of Ipswich, 453 Mass. 517 , 522 (2009), quoting Standerwick v. Zoning Bd. of Appeals of Andover, 445 Mass. 20 , 27 (2006). As abutters to 64 Main, the Conways enjoy a rebuttal presumption that they are "persons aggrieved." See Krafchuk, 453 Mass. at 522. But as Krafchuk notes, there are two ways that an abutter's opponent may overcome that presumption. One is to show that the abutter's interests are not among those that the Subdivision Control Law, G.L. c. 41, §§ 81K et seq., or the municipality's subdivision rules and regulations protect. The second way to overcome an abutter's presumed standing is to challenge, with evidence, the abutter's claims of injury. See Krafchuk, 453 Mass. at 522-523.

Guthrie and Finneral attack the Conways' standing using both methods. Guthrie and Finneral first claim that the Conways' interest in remedying Guthrie and Finneral's "defective application" isn't one that the Subdivision Control Law or Westford's Regulations protect. But it's undisputed that §§ 218-3 and 218-11(A) (1)(b) of the Regulations require the "applicant" for approval of a definitive subdivision to be the "owner (or owners) . . . of all land included in the subject request for action before the Planning Board," and the "original signatures of the owner(s)" must be on the applicant's definitive-subdivision application. Kuklinska v. Planning Bd. of Wakefield, 357 Mass. 123 , 129 (1970), and Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104 , 106-107 (1991), hold that the Subdivision Control Law allows municipalities to adopt such regulations, and Batchelder lists (at pages 108-109 of the decision) several statutory interests that such "owner" application requirements advance. The Conways' Application Claim thus is within the ambit of the interests protected by the Subdivision Control Law and the Regulations. (Even if it weren't, the Conways point to another interest – that in having traffic cross their property safely – that the Law explicitly defends. See c. 41, § 81M (requiring local boards exercising authority under the Law to do so "with due regard . . . for reducing danger to life and limb in the operation of motor vehicles"). Guthrie and Finneral's "beyond the scope" attack on the Conways' standing thus fails either way.)

"Beyond the scope" arguments lend themselves to decisions on summary judgment, as they usually don't involve evidentiary issues. See Swartz v. Lipkind, 26 LCR 235 , 238 (2018) (addressing similar standing issues under G.L. c. 40A, § 17). The second method of disputing an abutter's standing – challenging his or her claims of injury – is an uphill battle on summary judgment, owing both to the abutter's statutory presumption of standing and rules that require a court to draw against any party who moves for summary judgment all reasonable inferences from the moving party's evidence. See Parent v. Stone & Webster Engineering Corp., 408 Mass. 108 , 111 (1990).

Guthrie and Finneral succumb to that uphill battle here. The Conways contend that the proposed subdivision will result in (1) construction noise; (2) construction-related dust; (3) speeding construction traffic; (4) increased risks associated with the added traffic on the Conway Right of Way, once a second residence is built; (5) loss of privacy; and (6) loss of peace and quiet. An analysis of the first three harms (all related to construction) shows that there's enough evidence for the Conways to survive Guthrie and Finneral's motion for summary judgment on the issue of standing. See 81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline, 461 Mass. 692 , 704 n. 16 (2012) (plaintiff may maintain zoning appeal with only one valid standing claim). Since the Conways are presumed to have standing, it's incumbent on Guthrie and Finneral to offer admissible evidence that disputes the Conways' specific claims of harm. See Krafchuk, 453 Mass. at 522-523; Swartz, 26 LCR at 238. Guthrie and Finneral did that, submitting evidence that any construction-related harms will be short-lived. The Conways provided competing testimony, however, that construction still will affect them substantially, owing in large part to use of the Conway Right of Way.

The state of the evidence is such that the Conways survive Guthrie and Finneral's standing challenge, at this stage of this case. See 81 Spooner Road, 461 Mass. at 704-705 (appeal of summary-judgment ruling in a c. 40A, § 17 appeal of zoning board decision); Gale v. Zoning Board of Appeals of Gloucester, 80 Mass. App. Ct. 331 , 335 (2011) (appeal under c. 40A, § 17 of a special permit and zoning variance; owner of servient estate that is subject to an access easement, who fears impacts of construction on the dominant estate, has standing to challenge dominant estate's construction permits). The Court thus DENIES Guthrie and Finneral's motion for summary judgment on the issue of standing. But Guthrie and Finneral's triable challenge to the Conways' standing has an immediate effect upon the Conways' motion for summary judgment: the Court must deny it, as the Court can't enter judgment in their favor on any of their claims until they have established standing at trial. The most that the Court can do with respect to the Conways' substantive claims is rule against them, if the summary-judgment record warrants that. See Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991) (court may enter summary judgment against a party that bears the burden of proof at trial, if that party has no reasonable expectation of proving their claim at trial).

Guthrie and Finneral argue that the Conways won't be able to prove any of their claims at trial. The Court starts with the Conways' challenge to the frontage of the proposed subdivision's lots. It's undisputed that § 218-4.2 of the Regulations requires lots within a proposed subdivision to have frontage that complies with Westford's Zoning Bylaw. 64 Main is in a Residence A district under the Bylaw. Lots in that district must have a minimum "lot frontage" of 200 feet. The Bylaw defines "lot frontage" as "[t]he horizontal distance measured along the front lot line between the points of intersection of the side lot lines with the front lot line and to a minimum depth of the minimum front setback for the building in that zoning district." The Bylaw defines "Lot Line, Front" as "[t]he property line dividing a lot from a street or right-of-way over which line there is vehicular access to the building(s) on the lot. . . ." The Bylaw defines "Lot Line, Side" as "[a]ny lot line not a front or rear lot line." ("Lot Line, Rear" means "[t]he lot line . . . opposite the front lot line.") The minimum front-yard setback in the Residence A district is 50 feet.

The Conways claim generally that the subdivided lots won't have more than 200 feet of "lot frontage." The only evidence they cite for that contention is the approved subdivision plan and the Bylaws. The former shows, however, that both approved lots will have at least 200 feet of "lot frontage," all of it along Guthrie and Finneral's newly laid-out right of way, Kinloch Drive, and the Conways dispute that fact. Instead, the Conways spend considerable effort arguing that 64 Main lacked adequate frontage when the Board approved the creation of 64 Main in 1969. They contend that Guthrie and Finneral need to correct that earlier mistake (if there was one) before they're entitled to subdivide 64 Main.

The Conways point to nothing in the Subdivision Control Law or the Regulations that obligates Guthrie and Finneral to correct what the Conways perceive as flaws in the 1969 subdivision approval. The lack of a written "correction" requirement is fatal to the Conways' "mistaken 1969 approval" argument. In approving definitive-subdivision applications, municipal boards may apply only their written rules. They don't enjoy wide-ranging discretion to impose conditions. See Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 695-697 (1996); Wall Street Development Corporation v. Planning Board of Westwood, 72 Mass. App. Ct. 844 , 854 (2008). Since the Conways haven't identified a Regulation that requires Guthrie and Finneral to correct the alleged 1969 error, and as the Conways don't dispute the facts that show that the approved lots have at least 200 feet of frontage on Kinloch Drive, the Court GRANTS Guthrie and Finneral's cross-motion for summary judgment on the issue of the adequacy of the proposed lots' frontage.

The Court next turns to the Board's waivers. The parties agree that planning boards may waive strict compliance with their own subdivision rules and regulations "where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law." G.L. c. 41, § 81R. Krafchuk holds that a board's decision to grant or deny a waiver "will be upheld unless premised upon 'a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary,'" Krafchuk, 453 Mass. at 529, quoting Musto v. Planning Bd. of Medfield, 54 Mass. App. Ct. 831 , 837 (2002). Krafchuk goes on to hold that proving that a board has committed reversible error is a considerable task:

The board's determination whether a particular waiver is in "the public interest" involves a large measure of discretion, and if "reasonable minds might in good faith differ, without doubting the reasonableness of the opposing view, the conclusion reached by the planning board should be sustained on judicial review. For it is the board, not the court, to whom the statute delegates the discretion, and the role of the court is merely to ascertain whether the board exceeded its authority."

Krafchuk, 453 Mass. at 429 (citations omitted), quoting Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 809 (1981). Krafchuk suggests that in considering the other requirement for a valid waiver, that the waiver is "not inconsistent" with the intent and purpose of the Subdivision Control Law, a reviewing court needn't show any deference to the board. See Krafchuk, 453 Mass. at 429 (emphasis added; "the court determines whether there is a substantial derogation from the intent and purpose of the subdivision control law").

With Krafchuk in mind, the Court examines the Board's two waivers.

The Width Waiver. Guthrie and Finneral argue that the undisputed facts show that the Board properly concluded that the Width Waiver is in the public interest. The pertinent undisputed facts are these:

* Guthrie and Finneral asked for the Width Waiver, as well as waivers of requirements that they build sidewalks on both sides of the Conway Right of Way and Kinloch Drive.

* In exchange for both waivers, Guthrie and Finneral volunteered to either (a) pay $12,838.50 to a Town "Sidewalk Gift Account" or (b) construct or reconstruct 1,131 linear feet of sidewalk at a location to be determined by the Town.

* Section 218-19(C) of the Regulations provides:

For subdivisions in which a requirement to construct sidewalks is waived, the Board may, as a condition of approval[,] (1) require the applicant to construct an off-site sidewalk of at least equal value to the sidewalk that was waived in a location within proximity to the subject project; or (2) require the applicant to contribute funds for the purposes of studying, designing, acquiring easement(s) and/or constructing sidewalks, pathways, walkways, bicycle paths, and/or other pedestrian access and safety measures.

* Section 218-19(D) of the Regulations provides: "Where the Town accepts contribution of funds in lieu of sidewalk construction, the amount of such funds shall be at least equal to the costs of the sidewalk(s) that would have been required in the absence of a waiver. . . ."

* The Board accepted Guthrie and Finneral's proposal and required, as a condition of the Board's approval of their subdivision, to do what they promised prior to the issuance of a certificate of occupancy for the second (unbuilt) lot in the subdivision.

* In granting a waiver of the "sidewalk" Regulations, the Board stated:

In exercising their discretion to grant the waiver, the Board found that by granting the waiver (and other related waivers), the public interest would be served by either providing or planning for pedestrian access and safety measures that would benefit the public, as opposed to non- public improvements for the benefit [of] a single additional residential lot."

* In granting the Width Waiver, the Board stated:

The Board found that by granting this waiver (and related waivers), that the public interest criterion would be satisfied by either providing or planning for offsite pedestrian access and safety measures that would benefit the public, as opposed to non-public improvements for the benefit [of] a single additional residential lot, and that without said waivers, no such public benefit would be realized."

The Conways ask the Court to overlook the Board's stated reasons for finding that the Width Waiver is in the public interest, and instead embrace (or at least allow the Conways to procced to trial on) alternative, not-so-publicly-beneficial grounds for the Waiver. The Conways assert, for example, that "the only reason for waiving the width requirement was to allow the Applicants to realize a significant economic benefit." They also contend that the Board granted the Waiver because Guthrie and Finneral had agreed to donate part of the 64 Main property to the Town of Westford. The Conways' Statement of Material Facts provides no support for these assertions. The Statement doesn't identify anything that describes anyone's reasons for seeking or granting the Waiver. The Statement points to no evidence of Guthrie and Finneral's "economic benefit" from the waiver. The Statement also provides no evidence of a land-for-Waiver exchange. Since the Conways offer no facts that put the reasonableness of the Board's public-interest conclusion in dispute, the Court GRANTS Guthrie and Finneral's motion for summary judgment on the issue of whether the Board acted within its discretion in concluding that the Width Waiver is in the public interest.

Guthrie and Finneral say they're also entitled to summary judgment on the question of whether the Board properly held that the Width Waiver is "not inconsistent" with the intent and purpose of the Subdivision Control Law. A dispute of fact prevents the Court from siding with Guthrie and Finneral on that issue. Section 218-13 of the Regulations states that design standards such as the 50-foot width requirement "may be waived or modified by the Board if a determination is made that the general guidelines enumerated in the previous section [that is, § 218-12, "General guidelines"] can be better implemented by a waiver or modification of a specific design requirement." (Emphases added.)

The Board's decision contains no express determination that granting the Width Waiver "better implements" any of § 218-12's general guidelines. The decision contains twelve general "findings," plus five "notes" that are specific to the Width Waiver. None of the findings or notes mentions § 218-12's general guidelines expressly. Moreover, none of the findings or notes states, in so many words, that the Width Waiver "better implements" anything.

For purposes of summary judgment, the Court must construe the decision's lack of an express finding under § 218-13 as evidence that the Board failed to make a § 218-13 determination. While it's true that the law doesn't require a planning board to make written determinations supporting the grant of a waiver, see Krafchuk, 453 Mass. at 529, the absence of a written finding nevertheless is admissible evidence that the board neglected the issue. The Court thus DENIES Guthrie and Finneral's motion for summary judgment on the issue of whether the Board properly held that the Width Waiver is "not inconsistent" with the Subdivision Control Law.

The Cul-de-sac Waiver. The Court's discussion of the Width Waiver makes it easier to dispose of Guthrie and Finneral's motion for summary judgment concerning the Cul-de-sac Waiver. The Conways correctly point out that the Board's decision contains no discussion of how the Waiver is in the public interest, and no indication that the Board made the required determination under § 218-13 of the Regulations that the Waiver "better implements" § 218-12's general guidelines. Guthrie and Finneral counter that the Cul-de-sac Waiver isn't "substantial" enough of a derogation from the Subdivision Control Law to warrant overturning the Board's decision. See Krafchuk, 453 Mass. at 529; Arrigo, 12 Mass. App. Ct. at 809.

Guthrie and Finneral's argument founders, on summary judgment, because of disputes of fact. Their evidence that the Cul-de-sac Waiver "insubstantially" derogates from the Subdivision Control Law is found in (a) the Engineering and Fire Department's alleged approvals of the Waiver, (b) the Board's explanation that the cul-de-sac requirement was intended for roads likely to be accepted as public ways, and (c) Condition 2 of the Board's approval, which declares that the subdivision's "roadway" is to be a "private way" and, in the event it is ever accepted as a public street, that the owners of the subdivision's lots must bring the roadway up to the Board's then-applicable standards. But the Conways have offered evidence that the Engineering Department merely deferred to the Fire Department's analysis of Kinloch Drive, and that the Fire Department's conclusions don't jive with the Drive shown on the plan that the Board approved. That creates enough of a dispute of fact for the Court to DENY Guthrie and Finneral's motion for summary judgment as to the Cul-de-sac Waiver. A trial is needed on whether (a) the Board determined that the Waiver is in the public interest; and (b) the Board's approval of the Waiver "substantially derogates" from the purposes of the cul-de-sac requirement or the Subdivision Control Law more generally.

Guthrie and Finneral also cross-moved for summary judgment on the Conways' Application Claim. As noted earlier, the Regulations require the "owners" of "all land" included in a request for subdivision approval to sign the approval application, and the Conways didn't do that. The Board nevertheless accepted Guthrie and Finneral's application as complete, reasoning:

In exercising their discretion to interpret their own Regulations, and with benefit of advice from Town Counsel, the Board found that a waiver from Section 218-3 of the Regulations from the definition of the term "Applicant" was not required for [Guthrie and Finneral's subdivision] proposal. The Board found that while [Guthrie and Finneral do] not possess fee simple ownership of the [Conway Right of Way, Guthrie and Finneral do] possess a 30-foot easement, reserved by the original grantor, for all purposes for which streets and ways are commonly used in the Town of Westford. The Board found that while the definition of "frontage" [in § 218-3 of the Regulations] makes reference to fee simple ownership, the definition of "Applicant" does not. . . .

The trouble with the Board's conclusion is that it runs contrary to the holdings of Kuklinska, Batchelder, and Silva v. Planning Bd. of Somerset, 34 Mass. App. Ct. 339 (1993), all of which sustained challenges from persons similarly situated to the Conways, persons who live in municipalities that require the "owners" of land leading to or part of a proposed definitive subdivision to sign on to or otherwise consent to the subdivision application. While it's true that § 218-3's definition of "frontage" refers to "fee-simple ownership" of property, and its definition of "applicant" uses the unmodified word "owner," it doesn't stand to reason that one can therefore interpret "owner" as including someone who holds only an easement in affected land. If that were the case, the subdivision applicants in Silva – who owned the fee to the centerline of a proposed subdivision's access way, but only an easement over the other half of the way – would have won and not lost their case. The plain meaning of "owner" also doesn't support the Board's conclusion. See Black's Law Dictionary (7th ed. 1999) (defining "owner" as "One who has the right to possess, use and convey something; a proprietor.").

Citing Pelullo v. Croft, 86 Mass. App. Ct. 908 (2014), Guthrie and Finneral contend that where the interpretation of the local board's regulation is at issue, a court owes the board's interpretation deference. Pelullo holds, and this Court doesn't dispute, that a court must defer to a municipal board's reasonable interpretation of a zoning bylaw that the same board is charged with administering. One justification for that deference is the view that a local board is more familiar than a reviewing court with local conditions and the "'history and purpose of [the] town's zoning by-law.'" Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009), quoting Duteau v. Zoning Bd. Of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999). Another justification stems from one of the purposes of the Zoning Act – "to achieve 'greater implementation of the powers granted to municipalities,' including 'restricting, prohibiting, permitting or regulating' the uses of land." Wendy's, 454 Mass. at 381, quoting St.1975, c. 808, § 2A. Deferring to a local board's reasonable interpretation of its local laws fosters the Zoning Act's interest in furthering local autonomy. See North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432 , 443 (1981).

The reasons developed under the Zoning Act for deferring to the reasonable interpretations of local zoning bylaws by local zoning boards don't carry over to the subdivision context. While the Legislature enacted the Subdivision Control Law "for the purpose of protecting the safety, convenience and welfare of the inhabitants of the cities and towns in which it is, or may hereafter be, put in effect," the Law achieves those purposes through a discrete set of tools: "by regulating the laying out and construction of ways in subdivisions providing access to the several lots therein, but which have not become public ways, and ensuring sanitary conditions in subdivisions and in proper cases parks and open areas." G.L. c. 41, § 81M. The Law constrains the process of "regulating the laying out and construction of ways" by requiring municipalities that adopt the Law to enact subdivision regulations that are "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" – in other words, rules that shouldn't require too much interpretation. Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329 , 334 (1962). And if a definitive subdivision plan complies with those rules (and conforms to the board of health's recommendations), the planning board must approve the subdivision. The board enjoys no discretion to reject the plan. See c. 41, § 81M; Pieper v. Planning Bd. of Southborough, 340 Mass. 157 , 163 (1959) (the Law's legislative history "gives no indication that planning boards were to have freedom to disapprove plans which comply with applicable standards merely because the board feels general public considerations make such action desirable").

Because the purposes of the Zoning Act differ from those of the Subdivision Control Law, and because zoning bylaws function differently from subdivision regulations, the Court rejects the argument that a court, when reviewing under c. 41, § 81BB of a planning board's decision either to grant or refuse approval of a definitive subdivision plan, must defer to the board's interpretation of its local subdivision regulations.

Does that mean that the Conways will prevail on their Application Claim? Not necessarily. They haven't yet proved standing: no standing means no victory. But there's something else that gives the Court pause. Silva, 34 Mass. App. Ct. at 342, muses that where the owner of a servient estate that's subject to an access easement can't legally block efforts by the owner of the dominant estate to improve the easement for purposes of lawfully subdividing the dominant estate, a planning board might be able to waive a local requirement that "all owners" sign a subdivision application.

Silva declined to decide the application-waiver issue because there was nothing in the Silva record that suggested that the planning board entertained a waiver in that case. Not so here: the Board's decision shows that it mulled waiving the "all owners" requirement, but concluded that a waiver wasn't necessary, owing solely to the Board's perceived ability to define the "ownership" issue away. The Board nevertheless identified the very circumstance described in Silva that could make a waiver appropriate: the Conways likely can't object, as a matter of private easement law, to reasonable improvements in and increased use of the Conway Right of Way for purposes of Guthrie and Finneral's proposed subdivision. (The Conways conceded at oral argument on the parties' motions for summary judgment that it's unlikely they could claim that the proposed improvements to the Conway Right of Way, or the use of the Way for two residential lots, would overburden the Guthrie and Finneral's easement in the Way.)

In light of the Board's comments on the "applicant" issue, before putting the parties to trial on standing and the other issues left open by this decision, the Court will remand this case to the Board for its prompt consideration of whether it wishes to waive its "applicant" requirement. Should the Board's decision on remand disappoint a party, that party may bring its appeal to this Court, without having to file a new action.

Accordingly, the Court REMANDS this case to the Westford Planning Board to decide whether to waive the requirement under § 218-3 of the Town's Subdivision Regulations concerning the "applicant" for the proposed Guthrie and Finneral Subdivision. The Court further


1. The Planning Board shall commence a duly noticed public hearing on the waiver issue within 45 days of this Order. The Board's hearing shall incorporate all materials previously submitted to the Board during the Board's previous public hearings on Guthrie and Finneral's subdivision application. Guthrie and Finneral shall be obligated to pay any notice and publication costs normally charged by the Board to subdivision applicants.

2. The Board shall close its public hearing within 30 days of opening the hearing, unless Guthrie and Finneral agree in writing to extend the deadline for closing the hearing. Within twenty days of closing the hearing, the Board shall issue a written decision concerning the waiver issue, file a copy of that decision with the Town Clerk, and file a copy of that decision with this Court.

3. This Court retains jurisdiction over this case, including but limited to any appeal that the Conways, Guthrie or Finneral may take from the Board's decision after remand. Any party to this case who is aggrieved by the Board's decision after remand shall, within twenty days of the filing of the decision with the Town Clerk, (a) move in this Court for leave to submit an appropriate pleading for judicial review of the decision, and (b) file with the Town Clerk, with a copy to counsel of record in this proceeding, written notice of having filed the motion for leave, accompanied by a true copy of the motion for leave.

4. Nothing in this order shall affect the rights of persons other than the parties to this action to appeal the Board's decision after remand.

5. Nothing in this Order shall prevent the parties from meeting to discuss settlement or settling this matter.

The Court otherwise DENIES the Conways' motion for summary judgment. The Court GRANTS Guthrie and Finneral's cross-motion for summary judgment in part and DENIES the motion in part.