DEBORAH FRANGESH and NEAL FRANGESH v. PAMELA NESS CROWLEY, ANDREA N. HUBER, SUSAN J. CURTIS as Trustee of the ZERO NORTH STREET NOMINEE TRUST, JOHN S. BALDWIN and JUDITH BARRETT, FREEMAN BOYNTON, JR., WAYNE DENNISON, BORYS GOJNYCZ and EMMETT SHEEHAN, as Members of the DUXBURY ZONING BOARD OF APPEALS.

In the Town of Duxbury Zoning Bylaws (Bylaws) is a provision that parcels held in contiguous ownership as of January 1, 2001, cannot be divided into six or more lots or obtain building permits for six or more residences without a special permit. The individual defendants sought and obtained building permits for six houses on two lots that had only recently been divided by an approval-not-required plan—one house on a .921-acre lot and five houses on an 11.9-acre lot. Notwithstanding that these two lots are contiguous and had been in common ownership, the Town of Duxbury Building Commissioner (Building Commissioner) granted the six building permits. The plaintiffs Deborah Frangesh and Neal Frangesh (the Frangeshes), immediate abutters to the smaller parcel, appealed the building permits to the Duxbury Zoning Board of Appeals (ZBA). The ZBA issued a decision overturning the five building permits on the larger lot but affirming the building permit on the smaller lot. The individual defendants appealed the overturning of the five building permits to Plymouth Superior Court; the Frangeshes appealed the affirmance of the building permit on the smaller lot in this action. The parties have filed cross-motions for summary judgment. After hearing, the court finds that (a) the Frangeshes' presumption of standing has not been rebutted, thereby giving them standing, and (b) the ZBA erred in not addressing the requirement for a special permit for the single building permit. The ZBA's decision will be annulled and the matter remanded for further proceedings consistent with this Memorandum and Order.

Procedural History

The Frangeshes filed their complaint (Complaint or Compl.) in this action on March 28, 2017. The Answer of Defendants John S. Baldwin and Susan J. Curtis, Trustee of the Zero North Street Nominee Trust, was filed on April 24, 2017. The case management conference was held on June 23, 2017. At the case management conference, the claims against defendants Pamela Ness Crowley and Andrea N. Huber were dismissed without prejudice, and the subject building permit was deemed to apply to the current title holder of the subject property.

On November 30, 2017, the Defendants John S. Baldwin and Susan J. Curtis, Trustee of the Zero North Street Nominee Trust's Motion for Summary Judgment (Defendants' Motion for Summary Judgment), Defendants John S. Baldwin and Susan J. Curtis, Trustee of the Zero North Street Nominee Trust and Summary Judgment's Memorandum in Support of their Motion for Summary Judgment, Defendants John S. Baldwin and Susan J. Curtis, Trustee of the Zero North Street Nominee Trust's Statement of Material Facts (Def. SOF), and Defendant's Exhibit List (Def. App.) were filed. On January 19, 2018, the Plaintiffs' Cross Motion for Summary Judgment, Plaintiffs' Response to Defendant Developer's Statement of Facts and Plaintiffs' Additional Facts in Support of Cross-Motion for Summary Judgment (Pl. SOF), Plaintiffs' Memorandum of Law in Opposition to Developer Defendants' Motion for Summary Judgment on Standing and in Support of Cross-Motion for Summary Judgment on the Merits, and Plaintiffs' Appendix for Summary Judgment (Pl. App.) were filed. On February 22, 2018, Defendants John S. Baldwin and Susan J. Curtis, Trustee of the Zero North Street Nominee Trust's Legal Memorandum in Opposition to Plaintiffs' Cross-Motion for Summary Judgment and Defendants' Responses to Plaintiffs' Statement of Additional Facts and Defendants' Statement of Additional Facts in Opposition to Plaintiffs' Cross-Motion for Summary Judgment (Def. Add. SOF), and Defendants' Further Exhibit List (Def. Supp. Exh.) were filed. Plaintiffs' Motion to Strike (Motion to Strike) and the Supplemental Affidavit of Deborah Frangesh (Frangesh Supp. Aff.) were filed on March 2, 2018. Defendants' Second Supplemental Exhibit List (Def. 2nd Supp. Exh.) was filed on March 6, 2018. The court heard the Motion to Strike and the cross-motions for summary judgment on March 6, 2018, at which it denied the Motion to Strike with respect to the building permit, and took the remainder of the Motion to Strike and the cross-motions for summary judgment under advisement. This Memorandum and Order follows.

Motion to Strike

The Frangeshes have moved to strike Defendants' Exhibit 16 and paragraph 23 of Exhibit 18 as unsworn and inadmissible hearsay. Def. Supp. Exhs. 16 & 18 at ¶ 23. The statements in Exhibit 16, even though attested by the Town Clerk, are inadmissible hearsay. The statements are reflected in a writing and are not sworn by the person making them. Therefore, Exhibit 16 to the Defendants' Further Exhibit List is stricken and paragraph 23 of Exhibit 18 is stricken as it is irrelevant. Further, the Plaintiffs seek to have paragraphs 56, 61, and 62 of the Statement of Facts deemed admitted and have paragraphs 65 -74 stricken. Def. Add. SOF ¶¶ 51, 61, 62, 65-74. In responding to a statement of undisputed facts, "an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Mass. R. Civ. P. 56] must set forth specific facts showing that there is a genuine issue of for trial." Mass. R. Civ. P. 56(e). "Any response other than 'admitted' to a statement of fact . . . must include page or paragraph references to supporting pleadings, depositions, answers to interrogatories, admissions and affidavits, or else the facts described by the moving party as undisputed shall be deemed to have been admitted." Land Court R. 4. The defendants objected but did not otherwise respond to the statements of fact in paragraphs 56, 61, and 62. These statements are deemed admitted and shall be considered to the extent that they are relevant to the issues before the court. The statements of fact in paragraphs 65-74 are not sufficiently supported by references to supporting materials and are therefore stricken. The Plaintiffs' Motion to Strike is ALLOWED.

Summary Judgment Standard

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

The following facts are undisputed:

1. Susan J. Curtis (Curtis) is the current owner of the property that is the subject of this action, shown as Lot 1 on a plan entitled "Plan of Land North Street and Keene Street Duxbury, Massachusetts," dated September 14, 2016, and attached for reference as Exhibit A (the 2016 Plan). Compl. ¶ 4 & Exh. B; Ans. ¶ 4.

2. The 2016 Plan shows Lot 1 as having .921 acres, and the abutting Lot 2 as having 11.9 acres. Compl. ¶ 4 & Exh. B; Ans. ¶ 4.

3. The Frangeshes own and reside at 399 North Street, Duxbury Massachusetts (Frangesh Property). The Frangesh Property directly abuts Lot 1. Compl. ¶ 2; Ans. ¶ 2.

4. On September 29, 2016, John S. Baldwin (Baldwin), on behalf of Pamela Ness Crowley (Crowley) and Andrea N. Huber (Huber), applied for six building permits to construct single family dwellings, one dwelling on Lot 1, and five more on Lot 2. Compl. ¶¶ 25-26; Ans. ¶¶ 25- 26; Def. SOF ¶ 4; Pl. SOF ¶ 4.

5. At the time that Baldwin applied for the six building permits, Lots 1 and 2 were contiguous parcels, in common ownership of Crowley and Huber. Def. SOF ¶ 4; Pl. SOF 4, 54- 55; Def. Add. SOF ¶ 54-55; Compl. ¶ 29 & Exh. D; Ans. ¶ 29.

6. The Building Commissioner granted the six building permits on November 3, 2016. Compl. ¶ 27; Ans. ¶ 27.

7. Lots 1 and 2 were transferred to Curtis by a deed dated November 5, 2016, and recorded with the Plymouth County Registry of Deeds at Book 47768, Page 342. The claims against Crowley and Huber having been dismissed, Curtis and Baldwin are referred to hereinafter as the Developers. Compl. Exh. D.

8. On November 16, 2016, the Frangeshes applied to the Town of Duxbury Board of Health (BOH) for a permit to drill a well on the Frangesh Property. The application was approved on November 18, 2016. Pl. App. Exh. A.

9. On November 19, 2016, a well driller hired by the Frangeshes began drilling the well allowed by the November 16, 2016, permit. The Frangeshes paid $1,100 for the work performed that day. Pl. App. Exh. A.

10. On November 24, 2016, the Frangeshes received a certified letter, dated November 21, 2016, from the Duxbury Health Agent, Tracy Mayo, informing them that their well permit had been issued in error and would be voided. The well permit was voided because the well was to be located within 150 feet of an approved septic system to be constructed on Lot 1. Pl. App. Exh. A.

11. The Frangeshes appealed the grant of the six building permits to the ZBA. Compl. Exh. A.

12. In a Decision dated March 8, 2017 (Decision), the ZBA upheld the single building permit issued for Lot 1 and overturned the five building permits issued for Lot 2. Compl. Exh. A; Def. SOF ¶ 5; Pl. SOF ¶ 5.

13. Section 104 of the Town of Duxbury Zoning Bylaws (Bylaws) provides in part:

This Bylaw is for the purpose of protecting the health, safety, convenience and general welfare of all inhabitants of the Town; to lessen the danger from fire, congestion and confusion; to control the impact future land development will have on the quantity and quality of the drinking water resources of the Town…

Def. App. Exh. 3.

14. Section 401.5 of the Bylaws provides:

No building or structure shall be used, constructed, relocated, added to or demolished without a building permit having been issued by the Zoning Enforcement Officer. No such permit shall be issued until such construction alteration or use, as proposed complies in all respects with the provisions of this bylaw or with a decision rendered or special permit granted by the Board of Appeals or any other Special permit Granting Authority (SPGA) authorized by this Bylaw.

Def. App. Exh. 3.

15. Section 530.1 of the Bylaws provides:

The purpose of this Bylaw is to ensure that land divisions, subdivisions, and developments of multiple dwellings on single lots are afforded the depth and breadth of review allowed by G.L. c. 40A, sec. 9 to adequately protect public health, safety and welfare of the current and future residents of the Town.

Def. App. Exh. 3.

16. Section 530.2 of the Bylaws provides:

The division and/or subdivision of land held in single ownership as of January 1, 2001 or anytime thereafter into:

1. Six (6) or more lots or;

2. The division of a track of land greater than ten (10) acres into five (5) or more lots or;

3. The construction of six (6) or more dwelling units on land that does not require land division and/or subdivision, whether on one or more contiguous parcels held in single ownership as of January 1, 2001 or anytime thereafter,

shall require a special permit from the Planning Board under the provisions of Sections 540 and/or 906.2, unless application is made under Section 700 of the Zoning Bylaw, in which case the special permit granting authority shall be the Board of Appeals. In cases where the proposed division of land is for six (6) or more lots and said division is proposed as a division of land not requiring Planning Board approval (G. L. c. 41, sec. 81-P), the Planning Board's special permit powers shall be limited to enforcing the provisions of Section 560 of the Zoning Bylaw. The provisions of Section 530.2.3 shall not apply to the construction of six (6) or more dwelling units on individual lots, if said six (6) or more lots were in existence as of January 1, 2001

Def. App. Exh. 3.

17. Section 611.3 of the Bylaws provides in part:

No person shall undertake clearing or grading activities of an area greater than 30,000 square feet at any one time or in increments such that the total land area of abutting property within the control of any person graded in a thirty-six (36) month period will exceed 30,000 square feet, without first obtaining a Site Alteration Special Permit from the planning Board, unless specifically exempted under Section 611.5 of this Bylaw.

Def. App. Exh. 3.

18. Section 611.5 of the Bylaws provides in part:

The provisions of this Bylaw shall not apply to the following activities: 1. Clearing and grading in conjunction with construction of structures intended for residential habitation if the land area to be cleared or graded is less than 30,000 square feet…

Def. App. Exh. 3.

19. The Frangeshes appealed the Decision to this court to challenge the Decision with respect to the building permit for Lot 1. The Developers appealed the Decision to the Plymouth Superior Court to challenge the Decision with respect to the five building permits on Lot 2. That case has been docketed as Plymouth Superior Court case no. 1783CV00307 (the Superior Court case).

Discussion

The parties have filed cross-motions for summary judgment. The Developers seek to have the Complaint dismissed, arguing that the Frangeshes do not have standing to maintain an appeal of the Decision under G.L. c. 40A, § 17. The Frangeshes seek to have the Decision annulled, arguing primarily that the Developers were required to seek one or more special permits prior to the issuance of the disputed building permit for Lot 1.

1. Standing

The Developers challenge the Frangeshes' standing to maintain their appeal of the Decision upholding the Building Commissioner's issuance of a building permit for Lot 1. In order to have standing, the Frangeshes must be "person[s] aggrieved" by the Decision. G.L. c. 40A, § 17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011); Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 702-703 (1998). Persons entitled to notice under G.L. c. 40A, § 11, including abutters to the subject property and abutters to abutters within 300 feet of the subject property, are entitled to a rebuttable presumption that they are aggrieved within the meaning of § 17. G.L. c. 40A, § 11; 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass. App. Ct. 376 , 381 (2006). The Frangeshes are direct abutters to Lot 1 and are therefore entitled to the rebuttable presumption that they are aggrieved by the Decision.

In the zoning context, a defendant can rebut an abutter's presumption of standing at summary judgment in three ways. First, the defendant can show "that, as a matter of law, the claims of aggrievement raised by an abutter, either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect." 81 Spooner Road, LLC, 461 Mass. at 702, citing Kenner, 459 Mass. at 120. Second, "where an abutter has alleged harm to an interest protected by the zoning laws, a defendant can rebut the presumption of standing by coming forward with credible affirmative evidence that refutes the presumption." Id. at 703. "[T]he defendant may present affidavits of experts establishing that an abutter's allegations of harm are unfounded or de minimis." Id. at 702, citing Kenner, 459 Mass at 119–120, and Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 23–24 (2006). Third, a defendant need not present affirmative evidence that refutes a plaintiff's basis for standing; "it is enough that the moving party demonstrate by reference to material described in Mass. R. Civ. P. 56(c), [ 365 Mass. 824 (1974),] unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving a legally cognizable injury." Id. at 703, quoting Standerwick, 447 Mass. at 35; see Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991). "Once the presumption of standing has been rebutted successfully, the plaintiff [has] the burden of presenting credible evidence to substantiate the allegations of aggrievement, thereby creating a genuine issue of material fact whether the plaintiff has standing and rendering summary judgment inappropriate." 81 Spooner Road, LLC, 461 Mass. at 703 n.15, citing Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 519–521 (2011).

In response to interrogatories the Frangeshes have articulated bases for aggrievement that include harms relating to increased density and erosion from clearing existing forest. Pl. App. Exh. 7. Specifically, the Frangeshes allege, and have presented evidence, that their ground and well water will be jeopardized by the increased density of neighboring septic systems and that the clearing required to build the houses on Lots 1 and 2 will create hazards on their property from storm water erosion. Id. The Frangeshes argue that they are uniquely injured by the revocation of their well permit owing to the septic system being permitted on Lot 1. This is a harm from increased density. The proposed house on Lot 1 will be close to the Frangesh Property—indeed, close enough to possibly prevent their drilling their new well. This evidence is sufficient to state claims of aggrievement. The Developers' demand that the Frangeshes produce further supporting evidence places too high a burden on the Frangeshes, who enjoy the presumption that they are aggrieved. Rather, the burden lies on the Developers to rebut, in the three ways discussed above, the Frangeshes' presumption of aggrievement based on these claims.

The Developers have not presented evidence that "'warrant[s] a finding contrary to the presumed fact' of aggrievement," 81 Spooner Road, LLC, 461 Mass. at 702, quoting Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003), or that shows that the Frangeshes cannot prove their claimed injury. Therefore, the Developers can only rebut the presumption of aggrievement by showing that the harms alleged by the Frangeshes are not to interests protected by the Bylaws. Such protected interests can arise from a bylaw's express language or implicitly from the intent of the bylaw's provisions. Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 518-519 (2011); see, e.g., Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994) (bylaw expressly protected visual character or quality of the neighborhood); Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 12 (2009) (requirements regarding lot size, lot width, and side yard are intended to further the general purposes of the bylaw).

The Developers argue that as the purpose of the Bylaws, defined in § 104, is "protecting the health, safety, convenience and general welfare of all inhabitants of the Town…," Pl. App. Exh. 3 (emphasis supplied), the Bylaws do not exist to protect the personal interests of any single property owner in the Town. Because under the zoning law of the Commonwealth the alleged harm must be '"special and different from the concerns of the rest of the community,'" 81 Spooner Road, 461 Mass. at 701, quoting Standerwick, 447 Mass. at 33, the Developers in essence argue that there are no private interests protected by the Bylaws which could confer standing in a zoning appeal. This is an unreasonable reading of the Bylaws' purpose. The Frangeshes have articulated a particularized harm due to density—the loss of their well permit and the risk to their water and septic—which is protected by the language of sections 104 and 530.1 of the Bylaws. See Sheppard, 74 Mass. App. Ct. at 12; Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 297 (2008). Further, a harm from erosion and runoff in connection with the clearing of Lot 1 is an interest protected by §§ 611.1 and 611.3 of the Bylaws. These harms to interests protected by the Bylaws remain unrefuted by contravening evidence or testimony. The Developers have therefore not rebutted the Frangeshes' presumption of standing. The Developers' motion for summary judgment on the issue of the Frangeshes' standing must be denied. The Frangeshes are presumed by be "person[s] aggrieved" within the meaning of G.L. c. 40A, § 17.

2. ZBA Decision

The Frangeshes seek annulment of the Decision. They argue that (1) the Developers were required to obtain special permits pursuant to the Bylaws prior to being granted a building permit; (2) the buildings permits were invalid because they were issued based on an unrecorded Approval Not Required Plan prepared pursuant to G.L. c. 41, § 81P; and (3) subsequent development on Lot 2 has changed the condition on the property that the Developers have available for development such that the proposed development in the context of all six building permits considered by the ZBA is no longer possible.

An appeal of a zoning board of appeals decision is de novo; that is, in an action under § 17 the "court shall hear all the evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require." G.L. c. 40A, § 17. Section 17 review of a local board's decision involves a "'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G.L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) ("In exercising its power of review, the court must find the facts de novo and give no weight to those the board has found."); Kitras v. Aquinnah Plan Review Comm., 21 LCR 565 , 570 (2013) (noting the court must "review the factual record without deference to the board's findings"). After finding the facts de novo, the court's "function on appeal" is "to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purpose of the zoning law." Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court, however, must give deference to the local board's decision and may only overturn a decision if it is "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970), citing Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at 570.

At the time of the Decision, the ZBA was presented with an appeal of six building permits for residences to be constructed on contiguous parcels which had been held in common ownership after January 1, 2001. Pursuant to § 530.2 of the Bylaws, a special permit is required for "[t]he construction of six (6) or more dwelling units on land that does not require land division and/or subdivision, whether on one or more contiguous parcels held in single ownership as of January 1, 2001 or anytime thereafter." Section 401.5 of the Bylaws provides that no building permit "shall be issued until such construction, alteration, or use, as proposed complies in all respects with the provisions of this Bylaw or with a decision rendered or special permit granted by the Board of Appeals or any other Special Permit Granting Authority." Pl. App. Exh. 3.

In the appeal before the ZBA, six building permits had been issued for two contiguous parcels of land held in common ownership, thus requiring a special permit from the Planning Board pursuant to § 530.2 of the Bylaws. Because a special permit was required, the collective permit application did not comply with the Bylaws and the six permits were therefore improperly issued by the Building Commissioner. In the Decision the ZBA annulled five of the six permits. What is not clear from the language of the Bylaws and was not addressed by the ZBA in its decision, Compl. Exh. A, is whether the ZBA, by annulling the other building permits, can then determine that the remaining single permit would not violate § 530.2 and derivatively § 401.5. Based on the agreed facts before the court, the ZBA erred either by failing to annul all six building permits for the lack of the required special permit, or by failing to consider whether it had the authority under the Bylaws to cure the defect in the building permit issued for Lot 1 by annulling the building permits issued for Lot 2. In either situation, the ZBA effectively ignored the Bylaws. The Decision was therefore based on legally untenable grounds and must be annulled. The court defers to the "board's interpretation of its zoning bylaws and ordinances," Wendy's Old fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381, due to its "home grown knowledge about the history and purpose of its town's zoning by-law." Duteau v. Zoning Bd. of Appeals of Worcester, 47 Mass. App. Ct. 664 , 669 (1999). Here, without the ZBA's interpretation of the appropriate application of §§ 401.5 and 530.2, the court has no basis on which to determine whether it should defer to the ZBA. The Decision must be annulled and remanded to the ZBA for further findings. See Roberts-Haverhill Associates v. City Council of Haverhill, 2 Mass. App. Ct. 715 , 717-718 (1974) ("the Supreme Judicial Court and [the Appeals Court] have, on proper occasions, ordered that a case involving the grant or denial of an application for a special permit or for variance be remanded to a board of appeals for further action or consideration, or both.").

The Developers argue that the court may only consider the merits of the single building permit that is the subject of the G.L. c. 40A, § 17, appeal currently before it. There is no doubt that this court lacks jurisdiction to pass judgment on the merits of the other five building permits: those permits are the subject of a separate appeal in the Superior Court case. This case, however, does not turn on the merits of the ZBA's Decision with respect to those other building permits. The issue here is whether a special permit was required to issue the building permit for Lot 1. While this issue is affected by the fact that the other five permits were applied for at all, it is not contingent in any way on the propriety of their issuance and subsequent annulment by the ZBA, and this Memorandum and Order does not purport to have any effect on the parallel proceedings in the Superior Court case concerning the five building permits issued for Lot 2.

The Frangeshes also argue that a special permit was required in connection with the total amount of clearing that would be performed on Lots 1 and 2 pursuant to § 611.3 of the Bylaws. The area that would be cleared on Lot 1 is not undisputed on the record before the court. The ZBA in the Decision found that "[b]ased on its decision regarding the permissibility of multiple houses on a lot and the Applicant's building permits, the Board did not need to decide whether Section 6.11.5.1 exempts up to 30,000 s.f. of clearing or grading for each residential habitation on a lot or contiguous lots, or up to 30,000 s.f. in total." Compl. Exh. A. On remand the ZBA should consider (1) the total area that would need to be cleared under all six building permits; (2) whether a special permit should have been required as a precondition of granting the six building permits; and (3) if a special permit was required, whether the Bylaws permit the ZBA to cure that defect in the building permit application by annulling so many building permits as to bring the area to be cleared below the threshold level that triggers the special permit requirement.

The court does not address the effect of any subsequent development on Lot 2 as the building permits applicable thereto are not subject to this action. Finally, with respect to the Frangeshes' claim that a building permit may not be validly issued based on an Approval Not Required plan which has not been recorded, the court does not read G.L. c. 41, § 81P, to require the recording of such a plan as a precondition to the issuance of a building permit. If a "plan does not create a subdivision within s 81L, it is entitled to an endorsement under the second sentence of § 81P." Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 , 605 (1980). That a plan merits endorsement under § 81P has no bearing on whether the lots created by the plan comply with zoning. Id. at 604. General Laws c. 41, § 81P, was enacted "to alleviate the 'difficulty . . . encountered by registers of deeds in deciding whether a plan showing ways and lots could lawfully be recorded.'" Id. at 602, quoting 1953 House Doc. No. 2249, at 55. The Frangeshes may—and indeed do—argue that the building permits were improperly issued because of noncompliance with zoning. That right exists whether or not the disputed plan was recorded.

Conclusion

For the foregoing reasons the Developers' Motion for Summary Judgment is DENIED and the Frangeshes' Cross-Motion for Summary Judgment is ALLOWED. Judgment shall enter annulling so much of the Decision as relates to the building permit for Lot 1 and remanding the Frangeshes' appeal of the building permit for Lot 1 to the ZBA for further findings consistent with this Memorandum and Order.

SO ORDERED

Exhibit 1