MISC 11-446702

January 14, 2013


Piper, J.


Middleboro Park, LLC (“Middleboro Park”) commenced this action in this court against the Planning Board of the Town of Middleborough (“Board”) on March 28, 2011 when Middleboro Park 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 from 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.

This case came on to be heard on the Board’s motion for summary judgment. After hearing on the summary judgment motion, the court (Piper, J.) issued a decision of even date, in which the court allowed the Board’s summary judgment motion.

In accordance with the decision, it is

ORDERED and ADJUDGED that the Amended Decision of the Board denying approval to the Modified Plan is not legally entitled to be modified or annulled by the court, and is upheld. In upholding the Amended Decision, the court has not passed on the validity of each of the reasons provided by the Board, in its Amended Decision, for disapproval of the Modified Plan, the court having addressed only those grounds specifically reached in the court’s decision of even date.

By the Court. (Piper, J.)