Home ROBERT L. HEDLUND, as Mayor of the Town of Weymouth, on behalf of the Planning Board of the Town of Weymouth, v. CALPINE FORE RIVER ENERGY CENTER, LLC and ALGONQUIN GAS TRANSMISSION, LLC.

MISC 17-000628

April 3, 2018

Norfolk, ss.



In 1953, the Massachusetts legislature adopted the Commonwealth's first comprehensive law allowing municipalities to regulate the subdivision of lands – that is, the splitting of a single property into two or more lots. (For ease of reference, this Decision will call the process of splitting a single property into two or more lots "subdivision." This Decision won't use that term to describe the result of a subdivision, as in "She lives in a subdivision down the street.") The 1953 legislation has survived largely intact and forms the current Subdivision Control Law, found in G.L. c. 41, § 81K et seq. The statute's purpose is to protect "the safety, convenience and welfare of the inhabitants" of those municipalities that adopt the Law "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 . . . ." Id. at § 81M; see also Daley Construction Co., Inc. v. Planning Bd. of Randolph, 340 Mass. 149 , 154 (1959).

The Subdivision Control Law shares many features of the Commonwealth's zoning enabling acts. Like the zoning acts, the Law is not mandatory: a municipality (other than Boston) may choose to regulate subdivisions, or not. See c. 41, § 81N. Like the zoning acts, the Law is comprehensive: once a municipality opts to take advantage of the Law, it can't add to or ignore its prescriptions for how to regulate subdivisions. See Costanza & Bertolino, Inc. v. Planning Bd. of North Reading, 360 Mass. 677 , 679-80 (1971); Cassani v. Planning Bd. of Hull, 1 Mass. App. Ct. 451 , 457-58 (1973). Like the zoning acts, the Law allows municipalities to customize some of their regulations. The Law permits municipalities to write, for example, their own procedural and substantive rules pertaining to subdivision proposals that will result in one or more new "buildable" lots that don't have sufficient legal access from a public or a previously approved way. See G.L. c. 41, § 81Q. Municipalities also can modify their zoning laws (usually, those establishing minimum lot-area and "frontage" requirements) to control which new lots will require approval under the Law. See Bloom v. Planning Bd. of Brookline, 346 Mass. 278 , 283-84 (1963); Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 806-08 (1981). Finally, while the Law provides a number of exemptions from subdivision regulation, the Law makes local planning boards the initial arbiters of whether an applicant qualifies for the exemption (resulting sometimes in a declaration, in the words of the statute, that "approval under the subdivision control law [is] not required," but more often resulting in something called, oxymoronically, an "ANR approval"). See c. 41, § 81P.

Like the current Zoning Enabling Act, the Subdivision Control Law has enforcement mechanisms. This case involves two of them. The first is unique to the Subdivision Control Law. Chapter 41, § 81N provides that once a municipality has adopted the Law, the municipality must alert the register of deeds and the recorder of the Land Court for the county in which the municipality lies. Thereafter, the Law prohibits that register and the recorder from allowing someone to "record any plan showing a division of a tract of land into two or more lots, and ways, whether existing or proposed, providing access thereto, in any city or town in which the [Law] is in force" unless the plan contains proof that the plan complies with the Law. Id. at § 81X. What's peculiar about § 81X is that it inserts into what one might consider a "local" matter (the regulation of subdivisions) a non-municipal officer, the register of deeds. See G.L. c. 36, §§ 1-2. (The registers also act as assistant recorders of the Land Court (the latter being another non-municipal officer) in their respective registry districts. See G.L. c. 185, § 10.) This reflects the Commonwealth's interest in the Subdivision Control Law and how it contributes to the purposes of the Commonwealth's land-recording and -registration systems. See Board of Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120 , 125 (1964); SMI Investors (Delaware), Inc. v. Planning Bd. of Tisbury, 18 Mass. App. Ct. 408 , 411 (1984).

The second enforcement mechanism that pops up in this case is found in G.L. c. 41, § 81Y. Section 81Y provides, in pertinent part:

The superior court for the county in which the land affected by any of the provisions of the subdivision control law lies and the land court shall have jurisdiction in equity on petition of the planning board of a city or town . . . to enforce the provisions of the subdivision control law . . ., and may restrain by injunction violations thereof or make such decrees and as justice and equity may require. No proceeding under this paragraph shall be instituted more than one year after the act or failure to act upon which such petition is based.

Section 81Y echoes, somewhat, c. 40A, § 7 of the Zoning Enabling Act, which allows a zoning enforcement officer to apply to the Superior or Land Courts for enforcement aid. But § 7 casts the zoning enforcement officer as a "local" enforcer, someone who's upholding a local law. Section 81Y's objective is enforcement of a statute that serves statewide public interests, the Subdivision Control Law. So a closer parallel to § 81Y might be a local conservation commission's powers under G.L. c. 131, § 40 to enforce the Commonwealth's Wetlands Protection Act, an act that similarly advances statewide and not merely local interests. See Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779 , 785-86, 792 (2012).

With all of this as background, let's turn to the undisputed facts of this case, which is before the Court on the parties' cross-motions for summary judgment. This case involves a property in Weymouth, Massachusetts known as 6 & 50 Bridge Street. The property is comprised of smaller lots that have long histories, such that by July 2016, 6 & 50 Bridge Street contained both registered and unregistered ("recorded") land. Some of the smaller lots comprising 6 & 50 Bridge Street also extend beyond Weymouth's municipal boundary into the abutting city of Quincy, Massachusetts.

The property's owner in July 2016 was defendant Calpine Fore River Energy Company, LLC. A company that's seeking to build an interstate natural-gas pipeline, defendant Algonquin Gas Transmission, LLC, approached Calpine with a proposal to construct a pipeline "compressor station" on portions of 6 & 50 Bridge Street that are entirely in Weymouth. Calpine was willing to let that happen, and it agreed to sell Algonquin the land beneath the proposed station site.

As luck would have it, the site straddled registered and recorded land, and there was no plan on record at the registry of deeds for Weymouth (the Norfolk County Registry of Deeds; this Decision will call it the "Registry") to which Calpine and Algonquin could refer in order to describe the site definitively and precisely. They thus asked a surveyor to prepare a plan (the "September 2016 Plan"). The September 2016 Plan showed Calpine's property as divided into six lots, B-1, G-1, G-2, H-1, H-2, and H-3. Calpine and Algonquin used the September 2016 Plan (or variations thereof) to describe what Algonquin was buying, Lot G-1 (on registered land), Lot G-2 (on recorded land), and Lot B-1 (also on recorded land).

While the September 2016 Plan proved useful to Calpine and Algonquin in negotiating a sale of the compressor-station site, the Plan was unrecorded. It's virtually impossible for one to obtain marketable title of a slice of either recorded or registered land without recording an accompanying plan, or at least relying on a previously recorded plan. See c. 183, § 6A (recorded land); c. 185, §§ 51, 65 (registered land). But recall that § 81X of the Subdivision Control Law provides that one can't record any plan that shows, for the first time, a division of land in a town that's adopted the Subdivision Control Law (as Weymouth has) unless that plan bears the correct certification or endorsement from that town's planning board. Since the September 2016 Plan showed such a division, Calpine and Algonquin needed the Weymouth Planning Board's sign-off on that Plan.

To that end, in October 2016, Calpine and Algonquin submitted to the Planning Board the September 2016 Plan. Calpine and Algonquin asked the Board to endorse the Plan as an ANR plan. On November 9, 2016, the Board denied the endorsement. The Board faulted the manner in which the Plan labelled some of its lots, and questioned why the Plan depicted lots in Quincy, lots that were beyond the Board's geographic jurisdiction.

Chapter 41, § 81BB allows parties to appeal denials of ANR endorsements within twenty days of the denial, see Stefanick v. Planning Bd. of Uxbridge, 39 Mass. App. Ct. 418 , 421 (1995), but Calpine and Algonquin didn't appeal the Board's refusal to endorse the September 2016 Plan. Thus, as of November 30, 2016, according to c. 41, § 81X, the September 2016 Plan wasn't suitable for recording at the Registry. But for reasons none of the parties has explained, Calpine and Algonquin proceeded with the sale of Lots G-1, G-2, and B-1 anyway, notwithstanding the lack of a recorded (or even a recordable) plan depicting what Algonquin was buying.

Since one of Algonquin's lots (Lot G-1) was part of registered land and the other two lots (Lots G-2 and B-1) were on recorded land, Calpine signed two deeds in favor of Algonquin, as the Registry tracks registered and recorded land separately. See c. 36, § 25; c. 185, § 48. Both deeds describe Lots G-1, G-2 and B-1, and both deeds do so by reference to an attached "Exhibit A." In both deeds, Exhibit A states: "The parcels that comprise the Real Property are shown [on] the Plan that is Exhibit B. . . ." Exhibit B to both deeds was the unapproved, unendorsed, not-suitable-for-recording, September 2016 Plan, although it now bore the date November 21, 2016.

On December 2, 2016, Algonquin took both deeds to the Registry. Algonquin presented one deed to the Registry employees who maintain the records for registered land in Norfolk County. They accepted the deed and registered it as Document No. 1,368,107 (the "Registered Land Deed"). Algonquin tendered the second deed to the Registry employees who maintain the records for recorded land in Norfolk County; they recorded the second deed in Book 34726, Page 482 (the "Recorded Land Deed"). When the Registry employee saw Exhibit B to the Recorded Land Deed (that is, the September 2016 Plan), that employee made two alterations to the Deed.

First, on its Exhibit A, in the sentence that read, "The parcels that comprise the Real Property are shown [on] the Plan that is Exhibit B," the employee crossed out "Plan" and wrote "Sketch." Second, the employee stamped the so-called Sketch with this legend (capitalization in the original): "THIS IS A SKETCH AND SHALL NOT BE REFERRED TO AS A PLAN FOR THE PURPOSES OF CONVEYING OR SUBDIVIDING LAND."

The Registry shouldn't have accepted either deed. Exhibit B to both deeds was labelled "Subdivision Plan of Land," and rightly so: it showed a division of lands that previously recorded plans had depicted as single lots. In both deeds, Calpine and Algonquin had referred to Exhibit B expressly for the purposes of conveying Lots G-1, G-2 and B-1 to Algonquin. Labelling Exhibit B a "Sketch," or stamping it with a legend that it "shall not be referred to as a Plan for the purposes of conveying land," didn't change the fact that Calpine and Algonquin were using the "Sketch" precisely for the forbidden purpose, conveying land. And it's undisputed that Exhibit B didn't meet § 81X's recording requirements, as it it bore no Planning Board approval or endorsement whatsoever.

Well within the one-year period for enforcement actions under c. 41, § 81Y, the Planning Board caught wind of the sale of Lots G-1, G-2 and B-1 and the recording of the "Sketch." On December 23, 2016, Weymouth's mayor, acting on the Planning Board's behalf, sued Calpine and Algonquin in Norfolk County Superior Court. Count I of the Board's complaint sought a declaratory judgment that the recording of Exhibit B violated § 81X, "and that the conveyance purportedly effected by such Deed[s] was therefore void ab initio." (Emphasis in original.) Count II of the Board's complaint sought injunctive relief "in the form of an order rescinding the [December 2016] conveyance" on account of Calpine and Algonquin's failure to comply with the Subdivision Control Law. The Board also sought an order "enjoining any [and] all persons and entities from recording or registering any instruments related to the [conveyed properties], unless and until the lots comprising the [properties] are properly divided from adjacent parcels in accordance with the Subdivision Control Law. . . ." (Emphasis in original.)

The cause of what happened next isn't clear from the record. Whether it was because of the Norfolk Superior Court suit, or whether it was because someone else had become uncomfortable with how Calpine and Algonquin had left things with the Board or the Registry, in February 2017 Calpine and Algonquin submitted a second application to the Board. That application sought an ANR endorsement for a revised plan of 6 & 50 Bridge Street (the "Revised ANR Plan"). The Revised ANR Plan corrected the labelling issues that the Board had identified on the September 2016 Plan and omitted Calpine's land in Quincy.

The Planning Board took no action on the Revised ANR Plan. Eventually, by operation of c. 41, § 81P, the Weymouth Town Clerk certified on March 21, 2017 that the Revised ANR Plan was "deemed" to have received the Board's ANR endorsement. Algonquin promptly recorded the Clerk's certificate and the Revised ANR Plan. Algonquin later moved to dismiss the Board's Norfolk Superior Court complaint, for lack of subject-matter jurisdiction. Most of Algonquin's arguments went to the merits of the Board's claims, but in October 2017, the Superior Court seized on one argument – that only the Land Court may make declarations pertaining to registered land – as grounds to transfer the entire action to this Court under G.L. c. 212, § 26A. Once the case arrived here, this Court ordered the parties to file cross-motions for summary judgment.

Calpine and Algonquin admitted at oral argument on the parties' motions that the September 2016 Plan and the Exhibit Bs attached to the Registered and Recorded Land Deeds weren't suitable for recording. The Court thus holds that the Registry's acceptance of the Registered and Recorded Land Deeds violated c. 41, § 81X. Calpine and Algonquin nevertheless argue that the Planning Board's dispute with Calpine and Algonquin is moot, since the Board eventually gave its (deemed) endorsement to the Revised ANR Plan, which they claim is substantively no different from the defective Exhibit Bs. The Board's ANR endorsement certainly prevents the Board from disputing the Revised ANR Plan, but the endorsement and subsequent recording of the Revised ANR Plan doesn't correct the Registered Land Deed, the Recorded Land Deed, or their defective Exhibit Bs. There's also nothing at the Registry that alerts anyone that the Deeds and their Exhibit Bs violate the Subdivision Control Law, and nothing that explains the relationship between the Deeds' illegal Exhibit Bs and the later- recorded Revised ANR Plan. As long as those errors remain on the record at the Registry, this case remains alive under § 81Y.

Calpine and Algonquin next argue that the Board lacks both the standing and the power to remedy any problems associated with the Registered and Recorded Land Deeds. Section 81Y disposes of both contentions. It expressly gives the Board the power "to enforce the provisions of the subdivision control law," and to ask the courts to "restrain by injunction violations thereof or make such decrees and as justice and equity may require." In its complaint, the Board limited its requests for relief to the December 2016 events that violated the Subdivision Control Law; § 81Y affords equitable relief for those violations. (In its memorandum in support of its motion for summary judgment, the Board attempts to grab a little more in the way of relief, asking this Court to rule that Algonquin violated the terms of a certificate of public convenience and necessity issued by the Federal Energy Regulatory Commission to Algonquin for its interstate pipeline project. This Court lacks jurisdiction to enforce FERC's orders. See Millennium Pipeline Company, LLC v. Certain Permanent and Temporary Easements, 777 F.Supp.2d 475, 481 (W.D.N.Y. 2011), aff'd sub nom. Millennium Pipeline Co. v. Certain Permanent & Temp. Easements, 552 F. App'x. 37 (2d Cir. 2014). The Court will confine this case to Subdivision Control Law issues, as the Board's complaint does.)

The Court thus holds that the Board is entitled to a judgment and injunctive relief on both Counts I and II of its Complaint. That leaves the question of the proper remedies. The Board's complaint seeks a declaration that the December 2016 conveyances were "void ab initio," and if they weren't void, the Board wants an order "rescinding" the conveyances. The Board provides no authority for such orders. The Board also fails to explain how rescission would serve the purposes of the Subdivision Control Law. Moreover, the Board has proven a violation only of § 81X. That statute addresses the recording of plans, and it aims its directives to registers and recorders. Section 81X doesn't speak to parties who present documents for recording.

The limited scope of § 81X suggests that what's needed here is correction and repair of the Registry's records. Had this case involved recorded land only, the remedy would be simple: the Court would order Calpine and Algonquin to record a confirmatory deed, one that relies on the properly endorsed Revised ANR Plan and that warns the public not to rely on the parties' December 2016 prior deeds or their illegal Exhibit Bs. What complicates this case is its mixture of registered and recorded land, as Algonquin admitted at oral argument it learned in the summer of 2017: Algonquin had obtained in August 2017 a confirmatory deed from Calpine, one relying on the Revised ANR Plan. Algonquin took the deed to the Registry, but was told (the Registry being careful now) that one can't correct a mistake affecting registered land by means of a corrective deed. Instead, one must commence what's called a "subsequent" registration case (also known as an "S" case) under c. 185, § 114. And until the S case is resolved, the Registry hesitates to do anything with Algonquin's recorded-land parcels, Lots G-2 and B-1. Armed with that knowledge, Algonquin filed an "S" case in September 2017, hoping to clean up the certificate of title to Lot G-1. See Algonquin Gas Transmission Co., LLC, 17 SBQ 07785 09- 001.

"Mixed" registered and recorded lands are ripe for other problems besides delays in recording confirmatory deeds. Liens, mortgages, and other encumbrances affecting the entire mixed parcel sometimes are recorded on only the "registered" side of the registry, or on only the "recorded" side. Inexperienced title examiners sometimes examine title on one side, but not the other, with resulting headaches for putative purchasers and lienholders. Fortunately, c. 185, § 52 provides a mechanism for avoiding some of these problems: it allows the owner of registered land, under a variety of circumstances, to withdraw that land from registration. Calpine and Algonquin admitted at oral argument that they had considered months ago withdrawing Lot G-1 from registration; as part of the equitable repair and correction of the December 2016 transactions, this Court will insist on withdrawal. The Court will further order that, once none of Algonquin's three parcels is registered, Calpine and Algonquin put on record a confirmatory deed. That deed may ratify the December 2016 transactions, but it must make clear that the property descriptions contained in the Registered and Recorded Land Deeds are ineffective, and that none of those deeds' Exhibit Bs may be relied upon. The Court will require Calpine and Algonquin to file a copy of the proposed confirmatory deed with the Court, serve a copy on the Town, and receive the Court's approval of the confirmatory deed before it may be recorded. Finally, the Court will enjoin Calpine and Algonquin from conveying or encumbering any of the Algonquin parcels until (a) they have been withdrawn from registration and (b) a Court-approved confirmatory deed has been recorded.

Judgment to enter accordingly.