MISC 11-446702

January 14, 2013


Piper, J.


This case is before the court on a motion for summary judgment filed by the defendant, the Planning Board of the Town of Middleborough (“Board”). Middleboro Park, LLC (“Middleboro Park”) commenced this action on March 28, 2011 when it filed a Complaint under G.L. c. 41, § 81BB appealing from a certificate of disapproval of a modification, requested by Middleboro Park, of a definitive plan of subdivision earlier approved by the Board. It denied Middleboro Park’s application for approval of a plan which would have been a modification (“Modified Plan”) of the approved definitive subdivision plan (“Subdivision”) for Middleborough Park at 495, a subdivision of land located off of Bedford Road in Middleborough, Plymouth County, Massachusetts. An Amended Complaint was filed with Defendant’s assent on May 11, 2011, also pressing an appeal under G.L. c. 41, § 81BB of an amended certificate of disapproval of modification of the definitive plan (“Amended Decision”) issued by the Board on April 26, 2011; the Amended Decision offered additional reasons for the Board’s disapproval of the Modified Plan.

In the Amended Complaint, Middleboro Park requests that the court issue a judgment that the Board’s disapproval of the Modified Plan constituted an abuse of the Board’s discretion, exceeded the Board’s authority under the Subdivision Control Law and the Board’s Subdivision Rules and Regulations (“Rules and Regulations”), and was based on grounds that are legally untenable, unreasonable, whimsical, arbitrary, and capricious.

The Board’s motion for summary judgment was filed with supporting papers on July 31, 2012. In its brief in support of its motion for summary judgment, the Board argued that its Amended Decision should be declared valid, and that the court ought enter summary judgment in the Board’s favor because the Modified Plan did not comply with various provisions of the Rules and Regulations, did not comply with the Special Permit governing the development of the Subdivision, [Note 1] and was not consented to by the owners of the lots in the Subdivision, as the Board alleges is necessary under G.L. c. 41, § 81W (because the marketability of those owners’ titles would be impaired by the proposed modifications).

Middleboro Park filed its opposition to the Board’s motion for summary judgment with supporting papers on September 10, 2012. Middleboro Park argued that while the Board’s disapproval might be upheld because Middleboro Park admitted that some of the reasons supporting disapproval of the Modified Plan given in the Amended Decision were valid, several of the reasons were invalid and therefore the court should deny the Board’s motion in part and declare those reasons invalid.

The court heard arguments on the Motion for Summary Judgment on September 13, 2012. Following argument, the court deferred taking the motion under advisement so that Middleboro Park could file and serve a status report by October 1, 2012, stating whether or not it would seek the assents of Cirelli Foods and Brookfield Engineering — two owners of lots in the Subdivision. The Board contended these lot owners’ consent to the Modified Plan was necessary, because their rights would be affected by the Modified Plan. The court gave Middleboro Park the opportunity to seek and obtain from these lot owners assents to the proposed modifications, and then to supplement the summary judgment record with those assents. The court did so on the prudential ground that should Middleboro Park successfully obtain the assents, it would moot the question whether that independent basis for the Board’s disapproval was legally proper. Middleboro Park filed a report on October 1, 2012, confirming that Middleboro Park would seek the two lot owners’ assents. The court issued on October 5, 2012 an order requiring that Middleboro Park submit its supplementary summary judgment filings by October 31, 2012. Middleboro Park filed a request on October 31, 2012 for an extension of that deadline to November 19, 2012. The court allowed that request on November 5, 2012, over the Board’s objection, and the two owners’ assents were filed by Middleboro Park.

Based upon the summary judgment record, the following material facts appear not to be in genuine dispute:

1. Middleboro Park is the owner of several lots within the Subdivision and the successor-in-title to the original developers of the Subdivision.

2. The Subdivision lies within the Development Opportunities Overlay District under Section IX of the Town of Middleborough’s Zoning By-law.

3. On September 2, 2010, the Middleboro Park filed the Modified Plan, which sought approval to revise a definitive plan approved by the Board in 2004. The 2004 subdivision plan depicted a second phase of the development of the Subdivision (“Phase II”). As approved, Phase II included the creation of four additional lots; completion of the unbuilt portion of the subdivision access road known as Commerce Boulevard (“Commerce Boulevard II”); construction of an extension of Commerce Boulevard (“Commerce Boulevard Extension”) to Clay Street, which lies to the north of the Subdivision; the expansion of a detention basin known as Basin #2 to serve the drainage needs of Commerce Boulevard II, Lot 9, and a portion of Lot 1, formerly known as Lot 11 and the proposed development on their lots by Cirelli Foods and Brookfield Engineering (owners of Lots 3A and 10 respectively, as labeled on the Modified Plan); and construction of a detention basin to be known as Basin #3 to serve the drainage needs of Commerce Boulevard Extension and portions of Lots 5 and 6. None of these improvements have yet been constructed.

4. The Modified Plan proposes changes to a portion of Phase II, including reduction of the proposed width of Commerce Boulevard Extension to two lanes instead of the previously approved four lanes, changes to landscaping, and reductions in the sizes of Basin #2 and Basin #3.

5. After several hearings, only the first of which Middleboro Park’s representative attended, the Board voted to disapprove the Modified Plan on March 8, 2011. The Decision was issued that day and was filed with the Town Clerk March 9, 2011.

6. On April 26, 2011, following commencement of this action, the Board issued the Amended Decision, which included additional reasons for the disapproval. [Note 2]

7. In the Amended Decision, the Board disapproved the Modified Plan because it found that the proposed modifications were for the purpose of modifying the subdivision road design in conjunction with the Town’s receipt of a MORE Jobs Grant from the Commonwealth; because the request for that grant had been withdrawn, and the Board concluded there was no longer a need for the proposed modifications.

8. The Board found that the Modified Plan did not comply with G.L. c. 41, § 81W because all of the owners and mortgagees of land affected by the modifications had not assented to the modifications. The Board did not specify in the Amended Decision which owners and mortgagees they believed would be affected.

9. The Board found that the Modified Plan did not comply with several provisions of the Rules and Regulations. Middleboro Park admits that the Modified Plan does not fully comply in the following respects:

On the other hand, Middleboro Park disputes the Board’s further claims that the Modified Plan does not comply with the Rules and Regulations in the following respects:

10. The Board found that the Modified Plan had been deemed unsatisfactory by the Board’s consulting engineer, Atlantic Design Engineers. Middleboro Park disputes that conclusion.

11. The Board found that the Modified Plan failed to fulfill certain requirements of the Special Permit:

12. The Board found that the Modified Plan conflicted with previously approved subdivision plans and that Middleboro Park failed adequately to participate in the public hearing process.

Summary Judgment Standard

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643–44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Att’y Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

II. Discussion

The issue the court must decide is whether the Amended Decision was a valid exercise of the Board’s authority. The court must hear an appeal of a planning board decision brought under G.L. c. 41, § 81BB de novo, make independent findings of fact, and determine, based on those findings of fact, the validity of the board’s decision. Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 478–79 (1955). The court’s review of the decision is limited to the reasons for disapproval specified by the board. Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306 , 307 (1976) (citing Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass. 149 , 152 (1959)). “[T]he developer has the burden of proving that the planning board has exceeded its authority in disapproving the plan.” Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977) (citing Mac-Rich Realty Const., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 83 (1976)).

The decision of a planning board to disapprove a subdivision plan--or modifications to such a plan--is to be upheld if “the record shows any substantial reason given by the board for disapproval of the plan was proper.” Mac-Rich, 4 Mass. App. Ct. at 80–81 (emphasis added). The Appeals Court in Mac-Rich discussed each of the reasons given by the planning board to which the developer objected in that case “in order to avoid prolonged litigation.” Id. at 81. The court did not say or imply that it or any other court was required under any law to adjudicate the validity of, or even to discuss, every enumerated reason given by the planning board.

Under G.L. c. 41, § 81U, the applicant has a statutory right to modify its subdivision plans in response to planning board concerns, and to then resubmit them for approval, North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432 , 446 (1980), but the court is not required to facilitate the exercise of that right by deciding the validity of every reason given for the board’s disapproval. This is particularly true where full review would necessitate taking a case to trial to decide minor factual disputes, the outcome of which would not change the ultimate disposition of the case, see Mass. R. Civ. P. 56(c); Anderson, 447 U.S. at 248 (“Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.”). Therefore, Middleboro Park is not entitled to a declaration of the validity or invalidity, as the case may be, of every single reason cited by the Board in its Amended Decision, but only to a judgment as to whether the Amended Decision itself is valid. See id. at 80–81.

Because Middleboro Park, by its own admission, failed to comply with some of the Rules and Regulations cited as reasons for disapproval in the Amended Decision, the Board was within its authority to disapprove the Modified Plan and the Amended Decision must be upheld. See Mac-Rich, 4 Mass. App. Ct. at 80–81. However, because the issue of the Special Permit’s alleged requirement that Middleboro Park obtain an access easement over Campanelli Drive is particularly amenable to resolution on the law alone, and likely to arise again in any later litigation, I will address it. [Note 4]

In its Amended Decision, the Board claimed that the Special Permit required Middleboro Park to acquire an access easement over Campanelli Drive, a private way adjacent to the Subdivision, to modify and use it as a point of access to Route 18/28. Middleboro Park, by its own admission, has not acquired such an easement, but asserts that the Special Permit does not require it to obtain that easement.

Section VIII(D)(20)(b) of the Special Permit states that “the Applicant shall... provide the project with a second point of access to the Route 18/28 corridor by extending Commerce Boulevard across Clay Street to the Campanelli Drive right of way.” In circumstances where the language is unambiguous and the facts surrounding it are undisputed, interpretation of a special permit condition is a question of law, much like interpretation of a zoning bylaw. See Wyman v. Zoning Bd. of Grafton, 47 Mass. App. Ct. 635 , 637 (1999) (“Conditions of a... special permit are subsumed in the provisions of c. 40A and ordinances or by-laws under which they are promulgated; they are part of the zoning law to be enforced.”); Building Comm’r of Franklin v. Dispatch Communications of New England, 48 Mass. App. Ct. 709 , 713 (2000) (“[T]he meaning of a phrase in a zoning by-law is a question of law, not a question of fact.”). Section VIII(D)(20)(b) is a requirement that Middleboro Park obtain an access easement through Campanelli Drive. Just as the words of a municipal bylaw should not be interpreted in a manner which would lead to an absurd result or which would be contradictory to the clear mandate or obvious purpose of the provision as a whole, so too should the words of a condition of a special permit issued under a bylaw be interpreted logically. See Shirley Wayside Ltd. P’ship v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012). The language of the condition in question makes clear that the purpose of extending Commerce Boulevard to connect with Campanelli Drive is to provide “a second point of access to the Route 18/28 corridor.” It would be contradictory to the purpose of the condition to interpret these words to require Middleboro Park merely to create the indicated connection without obtaining the access rights to Campanelli Drive necessary to allow access to the highway. The condition must be interpreted as requiring that Middleboro Park obtain an easement sufficient to create a point of access to the highway.

Middleboro Park argues that even if the Board meant to impose upon it the requirement that it obtain access rights over Campanelli Drive, it was beyond the Board’s authority to do so, because it is unreasonable for the Board to impose requirements which are beyond Middleboro Park’s control. The Special Permit which currently governs the development of the Subdivision was issued in 2004. This action was commenced on March 28, 2011. The access requirements are set forth in the Special Permit, and are beyond any appeal. I conclude that regardless of the merit of Middleboro Park’s argument, the defendant now is barred from seeking judicial review of the requirement, given the strictures imposed by G.L. c. 40A, § 17. Section 17 states that “[a]ny person aggrieved by a decision of... any special permit granting authority... may appeal to the land court... by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk” and that this remedy “shall be exclusive.” The statute creates exceptions where issues of notice are concerned, but contains no exception, explicit or otherwise, which allows the court to hear a challenge to a special permit condition several years after the decision has been filed because the applicant may have misunderstood what the condition required.

For the foregoing reasons, the Board’s motion for summary judgment is ALLOWED. The judgment that I will direct enter will be clear that it will not operate as a binding adjudication of the validity each of the Board’s reasons for its disapproval of the Modified Plan, but only as stated above.

Judgment accordingly.


[Note 1] Recorded in Book 32472, Page 193 at the Plymouth County Registry of Deeds.

[Note 2] By agreement of the parties, the Amended Decision is the operative decision in this action.

[Note 3] The Board also cited Conditions 3, 4, 5, and 6 of the Subdivision’s 2004 Certificate of Subdivision Approval, which conditioned approval of the Subdivision on this modification. In connection with the modifications to Campanelli Drive, the Board also cited Condition 20 of the 2004 decision, which requires Middleboro Park to dead-end Clay Street (a public through-street upon which the Subdivision borders and which will, according to the Modified Plan, intersect Campanelli Drive and Commerce Boulevard Extension).

[Note 4] It also is clear that the Board’s reasons for disapproval based on the Town’s loss of the MORE Jobs Grant and its claimed effect on the necessity of the modifications and Middleboro Park’s failure to attend all hearings on its application are not founded in the Board’s Rules and Regulations, the Subdivision Control Law, applicable zoning bylaws, or the recommendations of the board of health. They were therefore improper reasons for disapproval. Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 696 (1996).