MISC 19-000245

October 24, 2019

Essex, ss.




This action was commenced by plaintiffs Leota Sarrette and Lisa Palmaisano ("Plaintiffs") with the filing of a complaint on May 20, 2019 against the defendants Lowell Five Cents Savings Bank ("the Bank") and George Moriarty, Michael Soraghan, Theodore Vathally, Ronald LaPlume and Lynda Brown, as members of the City of Haverhill ("the City") Board of Appeals ("the ZBA"), pursuant to G.L. c. 40A, §17 and G.L. c. 231A §1 et seq. seeking to annul the grant of a building permit for the construction of a water booster station ("the Station") issued by the Building Inspector for the City of Haverhill ("the Inspector"). The Plaintiffs contend that the Station, being a requirement of a previously approved and subsequently rescinded subdivision plan, cannot lawfully be permitted.

On or about July 8, 2019, the Bank filed Lowell Five Cents Savings Bank's Rule 12 (b)(6) Motion To Dismiss ("Motion"), in which the Board joined, asserting (1) that the Plaintiffs' claims did not present a proper zoning appeal under G.L. c. 40A; (2) that Plaintiffs' remedies, if any, were found exclusively in G.L. c. 41, §81BB; (3) that the covenant on which the Plaintiffs relied was previously released; (4) even if not released, the Plaintiffs did not have standing to enforce it; and (5) the City's Planning Board ("the Planning Board") specifically rescinded any "purported revocation" of the definitive plan at issue here. On September 12, 2019, Plaintiffs filed Plaintiffs' Cross Motion For Summary Judgment ("the Cross-Motion") and a memorandum of law in support thereof and in opposition to the Bank's Motion ("Plaintiffs' Memorandum"). There, Plaintiffs argued that, once the approved subdivision plan was automatically rescinded, it was void and could not be made the basis for the issuance of a building permit.

A hearing on the Motion and Cross-Motion was held on September 19, 2019, after which the court invited supplemental memoranda regarding (1) whether the Plaintiffs have a right of appeal under G.L. c. 41, §81Y and G.L. c. 41, §81BB and (2) whether a prior plan was in place if, as Plaintiffs contend, the subdivision plan at issue here was rescinded. Both parties filed supplemental memoranda, which have been considered by the court. For the reasons set forth below, the Bank's Motion is granted and the Plaintiffs' Cross-Motion is denied.


The Plaintiffs' complaint alleges that, in 2009, the Planning Board approved the Crystal Springs Residential Cluster Development ("the Subdivision") as shown on a plan recorded at the South Essex Registry of Deeds ("the Registry") at Plan Book 422, Plan 89 ("the Plan"). Complaint ¶ 7. A covenant was recorded at the same time ("the Covenant") under the terms of which the developer of the Subdivision gave to the Planning Board a covenant pursuant to G.L. c. 41, §81U to construct all ways and install all municipal services in accord with the Planning Board's rules and regulations within two years of approval of the Plan. Complaint ¶ 8. The Station was one of the municipal services to be installed in an easement area reserved on North Broadway across from and adjacent to the two Plaintiffs' properties. Complaint ¶ 9.

According to the records available at the Registry, the original developer, the Planning Board and the Bank as mortgagee entered into a series of tri-partite agreements and extensions regarding the construction of ways and municipal services. Complaint ¶ 13. The Planning Board's last deadline for installation of municipal services was November 1, 2016. Complaint ¶ 15. The Station was not constructed by that date. Id. Regarding the construction of ways and municipal services, exhibit B to the Covenant, at ¶ 8, specifically states that "[f]ailure to so complete shall automatically rescind approval of the plan." Complaint ¶ 14.

The original developer subsequently abandoned the Subdivision. Complaint ¶ 10. The original developer's lender, the Bank, foreclosed on what remained of the Subdivision and took title by a foreclosure deed dated November 30, 2017 and recorded at the Registry at Book 36387, Page 457. Complaint ¶ 11.

On January 11, 2019, the Inspector issued a permit to build the Station. Complaint ¶ 17. By letter dated February 7, 2019 and filed with the Town Clerk on the same date, the Plaintiffs appealed that decision, contending that, because approval of the Plan had been automatically rescinded, "there is no 'lot' or area, or approval for the current land owner to apply for a building permit or for the Building Inspector to issue one." Complaint Ex. C. The ZBA held a hearing on the Plaintiffs' appeal on April 17, 2019 and voted to uphold the Inspector's decision to issue the building permit.

Meanwhile, on February 13, 2019, the Planning Board voted to accept an irrevocable standby letter of credit from the Bank and to "revoke the purported automatic rescission of the approval of the Crystal Springs Subdivision, effective immediately." Complaint ¶ 20.


The analysis of Plaintiffs' claims begins and ends with Plaintiffs' description of the issue in Plaintiffs' Memorandum at p. 10:

This case and the current motions rest on a simple question: can a definitive subdivision plan, once it is automatically rescinded by the specific terms of a Planning Board Covenant, be the basis for the issuance of building permits pursuant to G.L. ch 41 §81Y, or must a new definitive plan be approved in accordance with the Subdivision Control Law?

Nothing in that statement of the issue, or in the factual background of this matter, implicates zoning. As a result, an appeal pursuant to G.L. c. 40A will not lie. Plaintiffs' alternative claim for declaratory relief also fails because the Plaintiffs lack standing to assert it. [Note 2]

Regarding the unavailability of c. 40A to the Plaintiffs here, the Supreme Judicial Court's decision in Green v. Board of Appeal, 358 Mass. 253 (1970) is instructive. There, a definitive subdivision plan had been approved in 1965 for some 98 units of housing, building permits were issued and substantial expense incurred in the construction of water and sewer facilities, storm drains and foundations before two individuals, the Alphens, appealed the issuance of the building permits to the board of appeals. After hearing, the board of appeals voted to request that the selectmen revoke the building permits and the developer appealed. The trial court upheld the board of appeals.

On further appeal to the Supreme Judicial Court, the Alphens argued, among other things, that approval of the subdivision plan was conditioned on a specified elevation of the cellar floor of the building, although that condition did not appear on the recorded subdivision plan. The Green court held that the subdivision control law does not extend to the imposition of conditions related to the structural aspects of proposed buildings, such that the condition relied on by the Alphens, even if it appeared of record, could not be relied upon by the board of appeals as a basis for its decision. Of particular relevance to this matter, the court also stated:

It is to be noted also that review under G.L. c. 40A, §13, of action by the building inspector (see Bearce v. Zoning Bd. of Appeals of Brockton, 351 Mass. 316 , 319-320) relates only to his decisions "in violation of . . . this chapter [c. 40A] or any . . . by-law adopted thereunder" (emphasis added). A different remedy (a bill in equity in the Superior Court) is provided to deal with violations of a planning board order or condition imposed under the subdivision control law. See G.L. c. 41, § 81Y.

358 Mass. at 263 n. 7.

The decision in Planning Board of Easton v. Koenig, 12 Mass. App. Ct. 1009 (1981), is of similar import. There, the Easton Planning Board sought to overturn the decision of the Easton Zoning Board of Appeals to permit landowners to build a dwelling on a lot owned by them in a subdivision in Easton. The Planning Board had refused to release the landowners from a covenant on the grounds that certain ways and services had not been provided as required by the Planning Board's rules and regulations. The landowners then went to the building inspector, who denied them a building permit, and then appealed to the zoning board of appeals, which issued a permit after hearing subject to certain conditions. The Planning Board appealed that decision to the superior court and then to the Appeals Court.

The Appeals Court reversed on the grounds that the zoning board of appeals was without jurisdiction to grant the building permit where conditions imposed during the subdivision control process were at issue:

The Subdivision Control Law, as found in c. 41, §§81K-81GG, of the Massachusetts General Laws, is a "comprehensive statutory scheme," Costanza & Bertolino, Inc. v. Planning Bd. of No. Reading, 360 Mass. 677 , 679 (1971), which sets forth in detail a means of regulating the subdivision of land. According to the statute, only the planning board and, in certain situations, the planning board of appeals, are authorized to determine whether a subdivision covenant has been satisfied so that a building permit may be issued. See G.L. c. 41, §81Y. The zoning board of appeals, as such, is not authorized to make such decisions. See G.L. c. 40A, §14. Cf. G.L. c. 41, §§81K-81GG.

12 Mass. App. Ct. at 1009. Green and Planning Board of Easton make clear that a local zoning board of appeal under c. 40A has no role to play in determining whether a permit is properly issued pursuant to the subdivision control law.

Turning, then, to the pertinent provisions of the subdivision control law, G.L. c. 41, §81Y, provides with respect to the issuance of building permits that, [i]n any city or town in which the subdivision control law is in effect, the board or officer, if any, having the power and duty to issue permits for the erection of buildings shall not issue any permit for the erection of a building until first satisfied that the lot on which the building is to be erected is not within a subdivision or that a way furnishing the access to such lot as required by the subdivision control law is shown on a plan recorded or entitled to be recorded under section eighty-one X.

Section 81Y (emphasis added) later describes the process for review of the issuance of building permits by boards or officers under that section:

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, or of ten taxable inhabitants thereof, to review any action of any municipal board or officer of such city or town in disregard of the provisions of this section, and otherwise to enforce the provisions of the subdivision control law and any rules or regulations lawfully adopted and conditions on the approval of a plan lawfully imposed thereunder, and may restrain by injunction violations thereof or make such decrees as justice and equity may require.

As the statute makes clear, only a planning board or ten taxpayers can seek review under §81Y. While there is a route of appeal by individuals from decisions of the board of appeals to the superior court or the land court pursuant to G.L. c. 41, §81BB, it is limited to appeals from the board of appeals under §81Y not applicable here. [Note 3]

Because the Plaintiffs do not contend that the Inspector's actions violated c. 40A, an appeal pursuant to G.L. c. 40A, §17, is not proper here. And, because the Plaintiffs are not parties vested with the power to seek review of the Inspector's decision under §81Y, they do not have standing to assert the claim that the building permit was wrongfully issued here. Couching the claim under the declaratory judgment act, G.L. c. 231A, does not alter the result. See Pratt v. Boston, 396 Mass. 37 , 43 (1985) ("[T]he requirement of 'standing' is not avoided by a prayer for declaratory relief." Doe v. The Governor, supra at 704. General Laws c. 231A, therefore, does not in and of itself provide the plaintiffs with the "standing" required to maintain this action.").


For the foregoing reasons, Lowell Five Cents Savings Bank's Rule 12(b)(6) Motion To Dismiss is ALLOWED and Plaintiffs' Cross Motion For Summary Judgment is DENIED. Judgment to enter accordingly.


[Note 1] Because this matter can be resolved without reference to materials outside the complaint, it is being considered under the standards applicable to Rules 12(b)(1) and 12(b)(6), Mass. R. Civ. P. Ginther v. Commissioner of Ins., 427 Mass. 319 , 322 (1998) ("In reviewing a dismissal under rule 12(b)(1) or (6), we accept the factual allegations of the plaintiffs' complaint, as well as any favorable inferences reasonably drawn from them, as true.") citing Nader v. Citron, 372 Mass. 96 , 98 (1977).

[Note 2] The issue of standing was referred to obliquely by the Bank in its original memorandum, in which it argued that the Plaintiffs did not have standing to enforce the covenant, the power and discretion to do so being vested with the local planning board. Memorandum In Support Of Lowell Five Cents Savings Bank's Rule 12(b)(6) Motion To Dismiss at pp. 14-15. The Bank directly raised the Plaintiffs' lack of standing under §81Y in its supplemental memorandum. In addition, this court may raise the issue sua sponte. Abate v. Fremont Investment & Loan, 470 Mass. 821 , 828 (2015)("As a component of subject matter jurisdiction, a party may challenge, or a judge may consider, sua sponte, standing under rule 12(b)(1) at any time. See Mass. R. Civ. P. 12(h)(3), 365 Mass. 754 (1974); Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91 , 99-100, 950 N.E.2d 40 (2011)").

[Note 3] That portion of § 81Y, regulating the issuance of permits, provides "[i]f, however, the enforcement of the foregoing provisions of this paragraph would entail practical difficulty or unnecessary hardship, and if the circumstances of the case do not require that the building be related to a way shown of such plan, the board of appeal provided in section eighty-one Z shall have power by vote of a majority of its members to issue a permit for the erection of such building, subject to the provisions of said section eighty-one Z and sections eighty-one AA and eighty-one BB." Section 81Z provides for a board of appeals that will have jurisdiction over permits for the erection of buildings under §81Y and states that "[s]uch board of appeal may be the existing board of appeals under the local building or zoning ordinance or by-law," with a proviso not relevant here.