INTRODUCTION
The Procedural Background
This case is one of three Land Court actions brought by Plaintiff Attleboro Sand & Gravel Corp. ("ASG") in connection with its efforts to operate a bituminous concrete plant on land it owns in the City of Attleboro's Industrial Business Park ("IBP") zoning district. To this end, ASG filed the first of its three Land Court Actions in 2014, seeking a declaration that bituminous concrete plants were permitted in the IBP District by right under the Zoning Ordinance then in effect. The City disputed ASG's interpretation of the Ordinance, but while the first action was still pending, the City amended the Ordinance in June, 2015, to expressly prohibit bituminous concrete plants. Whereupon, ASG filed a second declaratory judgment action seeking a determination that its 2014 lawsuit had tolled the running of a three-year zoning freeze on its property, which ASG had obtained in 2013 with the "Approval Under the Subdivision Control Law Not Required" ("ANR") endorsement of a plan of ASG's land, and that, accordingly, the June 2015 Zoning Ordinance amendments remained inapplicable to the ASG land during the pendency of the 2014 action.
In the 2015 declaratory judgment action, 15 MISC 000514 (JCC), this court ruled on summary judgment that the filing of ASG's 2014 declaratory judgment action suspended the running of the three-year zoning freeze obtained with the ANR plan endorsement, provided that final adjudication in ASG's 2014 action is favorable to ASG. In the 2014 declaratory judgment action, 14 MISC 486245 (JCC), the court ruled, after trial, that the Zoning Ordinance in effect prior to the June 2015 amendments did not permit bituminous concrete plant uses. Both of these judgments have been appealed and, at the time of this writing, the appeals are still pending.
Meanwhile, in an attempt to obtain a second zoning freeze to protect its property from application of the June 2015 Zoning Ordinance amendments, ASG had filed an application for preliminary subdivision approval just prior to the adoption of the June 2015 amendments. The Planning Board rejected the preliminary plan application as incomplete, and ultimately disapproved ASG's proposed definitive subdivision plan on the ground (among others) that ASG did not first submit a preliminary plan, as required under G.L. c. 41, § 81S for all subdivisions of non-residential land. ASG filed the instant action, appealing the definitive plan disapproval under G.L. c. 41, § 81BB, and also seeking a declaratory judgment that the Planning Board improperly refused ASG's preliminary plan in order to prevent ASG from obtaining the benefit of a G.L. c. 40A, § 6, ¶ 5 zoning freeze.
The Partial Summary Judgment Motion
In its Motion for Partial Summary Judgment, ASG asks this court to declare (1) that the Planning Board's June 22, 2015 vote rejecting and refusing to process ASG's preliminary plan [Note 1] had the legal effect of, and constituted, a disapproval of the preliminary plan submitted by ASG on May 11, 2015, and (2) that a G.L. c. 40A, § 6 process zoning freeze took effect upon the submission of the preliminary plan and remains in effect through the pendency of this appeal of the definitive plan disapproval. In opposing Plaintiff's Motion, the Planning Board contends that ASG's preliminary plan application was properly rejected as an incomplete filing because the preliminary plan "failed to meet even the minimal requirements of G.L. c. 41, § 81L" for such a plan. The Planning Board does not dispute the material facts relied upon by the Plaintiff, but argues that those facts entitle the Planning Board to summary judgment that ASG's preliminary plan was properly refused and that, because submission of a proper preliminary plan is a statutory prerequisite for submission of a non-residential definitive plan, the Planning Board's disapproval of ASG's definitive plan was proper per G.L. c. 41, § 81S. [Note 2]
The Parties have essentially agreed that the principal question for the court to address in resolving ASG's Motion for Partial Summary Judgment is whether ASG's preliminary plan satisfied the definition of a "preliminary plan" in G.L. c. 41, § 81L. If it did, the Planning Board could not simply "reject and not process" the preliminary plan, and ASG was entitled to file its definitive plan. For the reasons discussed below, I find that the preliminary plan submitted by ASG did substantially conform to the minimum statutory requirements for such a plan. Therefore, ASG is entitled to partial summary judgment that the Planning Board's refusal to process ASG's preliminary plan did not disqualify ASG's subsequent definitive plan submission, and had no effect on any zoning freeze rights afforded by G.L. c. 40A, § 6, ¶ 5 to the land shown on ASG's preliminary plan during the processing of the preliminary and definitive plans. Partial summary judgment in favor of ASG will, nonetheless, leave unresolved the further question of whether or not the Planning Board's disapproval of the definitive plan was nevertheless in its authority because it was validly based on other grounds.
STANDARD OF REVIEW
Summary judgment is appropriate when, drawing all inferences from the Rule 56 materials submitted in support of the motion in the light most favorable to the nonmoving party, the court determines that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Opara v. Mass. Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004); Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982). See also Mass. R. Civ. P. 56(c) (summary judgment to 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 dispute of material fact and that the moving party is entitled to a judgment as a matter of law."). The party moving for summary judgment bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles them to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). Here, ASG has met its burden of establishing its entitlement to partial summary judgment on the basis of the undisputed material facts.
UNDISPUTED MATERIAL FACTS
The material facts are not in dispute. ASG owns approximately 187 acres of land at 125 Tiffany Street, Attleboro (the "Locus"). The majority of the Locus is zoned Industrial Business Park ("IBP"). The Locus has long been used for quarrying and stone crushing.
According to G. L. c. 41, § 81S, a land owner who wishes to subdivide non-residential land is required to submit a preliminary plan to the local planning board and board of health for review before submitting a definitive subdivision plan for approval. On May 11, 2015, by hand delivery to the Planning Board's Senior Planner at the City Hall, ASG submitted to the Planning Board the following:
1. A completed Form B Application for a Preliminary Subdivision Plan for the Locus (the "Form B");
2. Seven sets of a plan entitled "Preliminary Subdivision Plan Quarry Estates 125 Tiffany Street, Attleboro, Massachusetts" by Pare Corporation, dated May 2015 consisting of twelve (12) sheets (the "Preliminary Plan"); and
3. A letter addressed to the Planning Board, dated May 11, 2015, which included a description of the "Quarry Estates" project with eight attached exhibits (the "Project Narrative").
(Collectively, the "Preliminary Plan Application"). [Note 3]
Before delivering the Preliminary Plan Application to the Senior Planner, ASG's agent had obtained the City's Health Agent's sign-off on the original of the Application.4 After the Preliminary Plan Application was delivered to the Senior Planner, ASG's agent hand delivered a copy of the Application to the City Clerk's office, where it was stamped as "Received City of Attleboro City Clerk" with the date of May 11, 2015.
The statutory definition of "preliminary plan" is as follows:
"Preliminary plan" shall mean a plan of a proposed subdivision or resubdivision of land drawn on tracing paper, or a print thereof, showing (a) the subdivision name, boundaries, north point, date, scale, legend and title "Preliminary Plan"; (b) the names of the record owner and the applicant and the name of the designer, engineer or surveyor; (c) the names of all abutters, as determined from the most recent local tax list; (d) the existing and proposed lines of streets, ways, easements and any public areas within the subdivision in a general manner; (e) the proposed system of drainage, including adjacent existing natural waterways, in a general manner; (f) the approximate boundary lines of proposed lots, with approximate areas and dimensions; (g) the names, approximate location and widths of adjacent streets; (h) and the topography of the land in a general manner.
G.L. c. 41, § 81 L.
The Preliminary Plan shows the division of the non-residential Locus into eight lots, to be served by two proposed cul-de-sac streets identified on the Plan by the names Road "A" and Road "B." Approximate boundary lines and areas of the proposed lots are indicated on the Preliminary Plan, as are the approximate layout lines of the two proposed Roads. The Project Narrative states that Road "B" "will generally follow a previously approved driveway which is currently under construction." The referenced "previously approved driveway" is one shown on plan sheets 3, 4, & 5 entitled "Proposed Layout and Grading Plan" by Bay Colony Group, Inc. dated May 7, 2013 (last revised through February 28, 2014) (hereinafter, the "Driveway Plan"), which had been included in a wetlands Notice of Intent, and an application for a Local Storm Water Management Permit. The Driveway Plan was approved by the Attleboro Conservation Commission on June 27, 2014.
The Driveway Plan was not included with the Preliminary Plan Application, but the Planning Board had the Driveway Plan before it when it considered ASG's Preliminary Plan Application. (See Defendant's Opposition at 9.) That the Planning Board was aware of the contents of the Driveway Plan during the course of its review of the Preliminary Plan is also illustrated by the several comparisons made in the Decision between the Preliminary Plan and the Driveway Plan.
The layout width and length of Road "B" shown on the Preliminary Plan are not identical to the length and width of the corresponding driveway on the Driveway Plan. For example, the Preliminary Plan shows Road "B" to be of uniform width, while the corresponding driveway on the Driveway Plan varies in width from 15 to 25 feet. Also, Road "B" on the Preliminary Plan is only about 400 feet in length from its intersection with the public way (County Street) and ends in a cul-de-sac, while the corresponding driveway on the Driveway Plan is shown as continuing into the Locus another 900 feet to intersect with another driveway. Road "B," however, follows the same general layout and route as the first 400 feet of the corresponding driveway.
Sheet C2.3 of the Preliminary Plan shows proposed stormwater drainage for Road "A," including locations of catch basins, drain lines and a 9,000 s.f., three-foot deep stormwater basin. Sheet C2.2 of the Preliminary Plan shows the locations of two "existing (under construction)" stormwater basins to serve Road "B," but does not indicate any other elements of the proposed drainage system for Road "B." The Project Narrative, however, states that Road "B" "will generally employ the approved stormwater management system currently under construction. Once road widths and lengths are finalized the system components will be modified to accept any additional stormwater volumes." The Project Narrative itself also contains a general description of the stormwater management plan for the entire, proposed development, with calculations, based upon the yet-to-be constructed system which had been approved by the Conservation Commission in conjunction with the Driveway Plan.
Contours of existing topographical elevations on the Locus are shown on the Preliminary Plan at intervals of two feet, along with spot grades. The Preliminary Plan does not show proposed changes to the existing topography of the Locus.
ASG's Preliminary Plan contains the subdivision name, boundaries, north point, date, legend and scale, as well as the names of all abutters, the names of the record owner and the applicant, and the name of the engineer who prepared the Plan, all as specified in parts (a), (b) and (c) of the statutory definition. As specified in part (g), the Preliminary Plan also shows the names, approximate locations and widths of adjacent streets, as well as existing easements. No public areas are shown on the Plan, and none were proposed.
On June 22, 2015, the Planning Board voted unanimously to "reject and not process" ASG's Preliminary Plan because the filing was incomplete. The Planning Board's Certificate of Vote was dated June 23, 2015 and was filed with the City Clerk on June 24, 2015 ("the Decision"). The Decision describes several ways in which the Preliminary Plan Application failed to comply with the requirements for preliminary plans set out in Section 4 of the Planning Board Rules and Regulations Governing the Subdivision of Land, as amended through June 2013 (the "Subdivision Rules and Regulations") and/or the requirements listed in the Planning Board's Preliminary Plan Checklist appended to said Subdivision Rules and Regulations. Also, the Decision identifies certain other informational shortcomings the Planning Board found in the Preliminary Plan Application: numbered paragraph 6 in the Decision states that "[t]he petitioner has not provided any information about the proposed grading of the roadway on the site plan," and numbered Paragraph 7 details several reasons why "the concept for the proposed stormwater management system for Road 'A' and Road 'B' is grossly inadequate." The inadequacies identified under numbered Paragraph 7 include: lack of existing or proposed contours for the roadways or lots; providing stormwater management system descriptions and calculations "for a roadway of a 'different size and configuration' than Road 'B'"; and proposing to capture stormwater by means of a system which was approved by the Conservation Commission under a stormwater management permit for a narrow driveway, and not for a subdivision roadway. Notably, however, the Decision does not identify any specific ways in which the Preliminary Plan fails to conform to the requirements for a preliminary plan as set forth in G.L. c. 41, § 81L. [Note 5], [Note 6]
On December 10, 2015, within seven months of submitting its Preliminary Plan, ASG submitted a definitive subdivision plan of the Locus. The Planning Board disapproved that definitive plan based on 14 reasons. The first reason given for disapproval was ASG's failure to have first submitted a valid preliminary plan for the nonresidential subdivision as required by G.L. c. 41, § 81S. ASG timely appealed the definitive plan disapproval by filing the instant action under G.L. c. 41, § 81BB.
DISCUSSION
ASG has moved for partial summary judgment that the Planning Board had no proper basis for disapproving the definitive plan on the ground that the applicant failed to submit a valid preliminary plan. The Planning Board has opposed ASG's Motion, arguing that it is well within the Planning Board's authority under the Subdivision Control Law to "reject without processing" a plan that fails to fully meet the definition of "preliminary plan" set forth in G.L. c. 41, § 81L ("§ 81L") and that ASG's Preliminary Plan did not, in fact, meet that statutory definition. Consequently, the Planning Board argues, ASG did not "submit" a preliminary plan prior to submitting its definitive plan for approval of a nonresidential subdivision, as mandated by G.L. c. 41, § 81S ("§ 81S").
ASG contends that the Preliminary Plan it submitted to the Planning Board did satisfy all of the definitional elements set forth in § 81L, thereby satisfying the requirement of § 81S that a preliminary plan be submitted prior to submission of a definitive plan for a nonresidential subdivision. ASG argues, therefore, that the Planning Board had no power to refuse to process ASG's Preliminary Plan, and that the Board's Decision "rejecting and refusing to process" ASG's Preliminary Plan Application must be treated as a simple "disapproval" of the Preliminary Plan, which did not prevent the filing of the definitive plan.
For the reasons which will be discussed below, I find that ASG's Preliminary Plan substantially conformed to the requirements specified in the § 81L definition of "preliminary plan." Accordingly, as the Planning Board had no authority under § 81S to reject and refuse to process ASG's Preliminary Plan, the first reason given for the Planning Board's disapproval of ASG's definitive plan is invalid.
Pursuant to the second paragraph of § 81S,
[i]n the case of a nonresidential subdivision, any person before submitting his definitive plan for approval shall submit to the planning board and the board of health a preliminary plan and shall give notice to the clerk of such city or town by delivery or registered mail, postage prepaid, that he has submitted such plan.
Section 81S expressly stipulates that "the provisions of the subdivision control law relating to a plan shall not be applicable to a preliminary plan." And the § 81L definition provides the only statutory requirements for the contents of a preliminary plan. Submission of a plan which substantially complies with this definition is all that § 81S requires prior to submission of a definitive plan for a nonresidential subdivision. See Paul Livoli, Inc. v. Planning Bd. of Marlborough, 347 Mass. 330 , 336 (1964) ("A preliminary plan is defined in c. 41, § 81L, and in order to obtain the benefits of c. 40A, § 7A [now c. 40A § 6, ¶5]
, a preliminary plan which complies substantially with that definition must be submitted."). Indeed, there is no dispute that the Preliminary Plan submitted by ASG substantially complied with the requirements set out in parts (a), (b), (c), (f), and (g) of the § 81L definition. Moreover, contrary to the Planning Board's argument, I find that the Preliminary Plan also substantially complied with the remaining requirements listed in parts (d), (e), and (h) of the definition. That is, the Preliminary Plan adequately showed: (d) the existing and proposed lines of streets, ways, easements and any public areas within the subdivision in a general manner; (e) the proposed system of drainage, including adjacent existing natural waterways, in a general manner; and (h) the topography of the land in a general manner.
1. The Preliminary Plan shows the existing and proposed lines of ways in a general manner.
The Planning Board argues that ASG's Preliminary Plan fails to show the existing and proposed lines of proposed Road "B," in that the roadway width is not noted on the Plan. Additionally, the Board argues that ASG's Project Narrative is inconsistent with what is depicted on the plan drawings because, while the Narrative states that Road "B" will generally follow a previously approved driveway which is currently under construction (i.e., the driveway shown on the Driveway Plan), plan sheet C2.2 depicts Road "B" with a uniform width as compared to the variable width shown on the Driveway Plan, and a shorter length than the approved driveway.
I do not agree with the Board that the failure to label the width dimension of Road "B" is fatal. Plan sheet C2.2 contains a scale which allows for easy calculation of the uniform Road "B" width proposed. And the depiction of Road "B" on sheet C2.2 of the Preliminary Plan is not directly contradicted by the Project Narrative description of the layout of Road "B" as "generally following" the layout of the under-construction driveway. The driveway shown on the Driveway Plan is plainly not identical in layout to proposed Road "B" shown on the Preliminary Plan, and it extends well beyond the approximate 400-foot length of Road "B." Nevertheless, proposed Road "B" intersects with County Street at approximately the same location as the driveway, and generally follows the same route as the driveway, at least to the extent of its approximate 400-foot length.
The statutory definition requires only that the proposed lines of ways be depicted "in a general manner." G.L. c. 41, § 81L(d). I find that the depiction of Road "B" on the Preliminary Plan substantially satisfies this requirement, with or without elaboration provided through the Project Narrative. While it might have been more helpful to the review process if the Preliminary Plan and the Project Narrative more accurately described the relationship between the under-construction driveway and the layout shown on the Preliminary Plan, the Planning Board's understandable "desire for a more detailed elaboration of the plan than was provided" is not a proper basis for outright refusal of the Preliminary Plan. See Paul Livoli Inc., 347 Mass. at 336.
2. The Preliminary Plan shows the proposed system of drainage in a general manner.
While acknowledging that the Project Narrative describes the stormwater drainage system for Road "B" as generally employing the approved stormwater management system shown on the Driveway Plan, the Planning Board objects that the proposed drainage system is not adequately shown on the plan itself and therefore does not comply with § 81L(e). The Planning Board's objection is unpersuasive. As with the lines of proposed roadways, a proposed system of drainage need only be shown on the preliminary plan "in a general manner" to meet the requirements of § 81L.
Here, it is not disputed that the Preliminary Plan plainly indicates the drainage structures and lines for Road "A," but that less detail is depicted on the Preliminary Plan for the Road "B" drainage system. However, the Project Narrative accompanying the Preliminary Plan describes the drainage system, complete with calculations, for the entire development (including Road "B"), as being based upon the stormwater management system which was approved for the Locus by the Conservation Commission in conjunction with the Driveway Plan.
In its opposition memorandum, the Planning Board identifies ASG's Preliminary Plan as collectively including, not only the plan drawings entitled "Preliminary Plan," but also the Project Narrative and the Form B Application. (See Defendants' Opposition at 2.) Moreover, as is clear from the commentary in the Decision, the Planning Board had before it, and considered, the Driveway Plan showing the storm water management system for the development of the Locus. [Note 7] That the Board might have preferred that the drainage system described in the Project Narrative be more fully depicted on the Preliminary Plan drawings is understandable. However, as noted above with respect to the proposed Roads, the Boards' desire for "a more detailed elaboration of the plan than was provided" does not take ASG's Preliminary Plan out of the definition provided in G.L. c. 41, § 81L. See Paul Livoli Inc., 347 Mass. at 336. Here, I find that, when read together with the accompanying Project Narrative, the Preliminary Plan substantially complied with the statutory requirement that a preliminary plan show the proposed system of drainage in a "general manner."
3. The Preliminary Plan shows the topography in a general manner.
The Board's final argument is that ASG's Preliminary Plan did not show both existing and proposed topography. Notably, § 81L(h) specifies only that a preliminary plan show "the topography of the land in a general manner." There is no specific requirement to show proposed topography. Thus, while proposed topography may be often be depicted on preliminary plans submitted to the Planning Board, and may be very useful information to have during the preliminary subdivision review stage, § 81L simply does not require it. And the Planning Board's suggestion that such a requirement should be read into the statute is a matter better taken up with the Legislature.
On the undisputed facts and supporting documentation in the summary judgment record, I find that ASG's Preliminary Plan, which included existing contour lines and spot grades of the existing topography of the Locus, substantially complied with the requirement in § 81L(h) to show the topography of the land in a general manner.
4. The Decision did not affect ASG's right to submit a definitive subdivision plan, or alter any zoning rights obtained by submitting the Preliminary Plan.
There is no right to refuse to process a preliminary plan which substantially meets the requirements spelled out in the § 81L statutory definition. Pursuant to § 81S, a planning board's actions with respect to such a preliminary plan are limited to either approving it (with or without conditions) or disapproving it. Moreover, § 81S requires only that a preliminary plan be submitted for review prior to submission of a nonresidential definitive plan. It does not require that the preliminary plan be approved. Because the Planning Board here had no proper basis to "reject and refuse to process" ASG's Preliminary Plan, its Decision has no more legal consequence for purposes of § 81S than a disapproval. Thus, the Decision did not alter ASG's right to submit a definitive plan, and provided no valid ground for disapproval of ASG's definitive plan.
So too, the Decision did not alter ASG's statutory right to submit a definitive plan within seven months of the Preliminary Plan submission in order to obtain available zoning freeze protections. See Paul Livoli Inc., 347 Mass. at 335 (power to disapprove a preliminary plan would not alter the zoning protection rights afforded to land shown on a preliminary plan submitted under G.L. c. 41, § 81S when followed by a timely definitive subdivision plan).
CONCLUSION
Based upon the undisputed material facts, and for the reasons discussed, I find and rule that ASG is entitled to partial summary judgment declaring: (a) that the Planning Board's Decision had no legal effect on ASG's right to submit a definitive subdivision plan for approval, where ASG submitted a Preliminary Plan which substantially complied with the requirements for a preliminary plan set forth in G.L. c. 41, § 81L and thereby satisfied the requirement of G.L. c. 41, § 81S; and (b) consequently, said Decision did not alter any zoning freeze rights afforded by G.L. c. 40A, § 6 (fifth paragraph) to the ASG land when the Preliminary Plan was submitted.
Final judgment shall not enter until the remaining claims in this case are resolved.
ATTLEBORO SAND AND GRAVEL CORP. v. PAUL DANESI, BEN DOWLING, BERT BUCKLEY, MELINDA KWART, JASON GITTLE, and JIM LEWIS, as they constitute the voting members of the City of Attleboro Planning Board.