MARTHA SAMUELSON AND PAUL SAMUELSON, v. ORLEANS PLANNING BOARD and, in their capacities as members of the ORLEANS PLANNING BOARD, JOHN FALLENDER, KENNETH MCKUSICK, CHET CRABTREE, JOHN OSTMAN, STEVE BORNMEIER, PAUL MCNULTY, CHARLES BECHTOLD, and JOHN FULLER, and THOMAS R. KENNEY and PATRICIA KENNEDY.

INTRODUCTION

This action involves an abutter appeal, under G.L. c. 41, § 81BB, from the June 23, 2010 decision of the Defendant Orleans Planning Board which purports to approve the application of Defendants Thomas R. and Patricia Kennedy (the “Kennedys”) for a definitive subdivision plan showing the division of the property known and numbered as 40 Tom’s Hollow Lane into two new lots. Although the property at 40 Tom’s Hollow Lane is shown as “Lot 4” on a six-lot definitive subdivision plan, which was approved in 1975 subject to conditions limiting further subdivision, the Board’s approval decision makes no reference to the 1975 subdivision plan or the conditions imposed thereon. Plaintiffs Martha Samuelson and Paul Samuelson are the owners of Lot 5 on the 1975 subdivision plan. They seek an annulment of the Board’s approval decision, claiming that the decision violated the conditions imposed on approval of the 1975 subdivision plan and was otherwise in excess of the Board’s authority.

On February 11, 2011, the Kennedys filed a Motion for Summary Judgment, seeking dismissal of the Samuelsons’ appeal. [Note 1] The Kennedys contend that their plan conforms to all applicable subdivision regulations, except one. They claim, therefore, that since the Board granted the only waiver needed (a waiver allowing reduced frontage for a proposed “panhandle” lot), and since the Board’s decision incorporated the conditions recommended by the Board of Health, the Board’s decision approving their plan must be upheld as a matter of law, pursuant to G.L. c. 41, § 81 U.

In opposing the Kennedys’ Motion for Summary Judgment, the Samuelsons argue that the Board exceeded its authority in approving the Kennedys’ subdivision plan because (a) the conditions imposed on the approval of the 1975 subdivision plan prohibit the further subdivision of the Kennedys’ lot to create additional lots until and unless Tom’s Hollow Lane is constructed in accordance with the roadway and utility standards in the Board’s subdivision regulations, and because (b) the Board did not (and cannot) properly waive those standards in accordance with G.L. c. 41, § 81R. The Samuelsons contend that waivers from the roadway and utility standards in this instance would be inconsistent with the Subdivision Control Law and not in the public interest, particularly in light of the conditions imposed on the 1975 subdivision approval. [Note 2]

The Kennedys replied to the Samuelsons’ Opposition by asserting that their subdivision plan stands alone and can be approved without regard for the actions taken by the Board in 1975. The Kennedys contend that, because the two lots shown on their subdivision plan both have frontage on Tom’s Hollow Lane, an existing private way located outside the boundaries of the subdivision tract, and because they propose to make no changes to Tom’s Hollow Lane, the Subdivision Regulations governing construction standards for new subdivision roads simply do not apply and, therefore, no waivers of those Regulations were necessary in order for their plan to be approved as presented. The Kennedys also argue that the conditions imposed on the approval of the 1975 subdivision plan are of no effect because they expired as a matter of law in 2006.

“Summary judgment is appropriate where there is no genuine issue of material fact, and where viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” Opara v. Mass. Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004). “Summary judgment, when appropriate, may be rendered against the moving party.” Mass. R. Civ. P. 56(c). Here, I find that none of the material facts are in dispute. And, on the basis of the undisputed material facts, with all inferences made in favor of the nonmoving party, I conclude that the decision approving the Kennedys’ 2010 subdivision plan was in excess of the Board’s authority. Thus, summary judgment is appropriately entered against the Kennedys, annulling the Board’s decision.

UNDISPUTED MATERIAL FACTS

1. Thomas R. Kennedy and Patricia W. Kennedy (the “Kennedys”) are the principals of Capt. Harry Hunt House, LLC, which is the record owner of the real property located at 40 Tom’s Hollow Lane, Orleans, Massachusetts.

2. Martha Samuelson and Paul Samuelson (the “Samuelsons”) are the record owners of real property located at 50 Tom’s Hollow Lane, Orleans, Massachusetts.

3. Both the Kennedy property and the Samuelson property front on, and are accessed by, Tom’s Hollow Lane.

4. The Kennedy property and the Samuelson property are shown as Lot 4 and Lot 5, respectively, on a plan entitled “Plan of Land in Orleans, Mass. as made for James B. Melcher, Jr., Robert H. Melcher, Mary Louise Brier, as Trustees and Individuals,” by Nickerson & Berger, Inc. Engineers, Orleans, Mass, dated October 29, 1975 and recorded in the Barnstable County Registry of Deeds at Plan Book 303, Page 100 (the “1975 Plan”).

5. The 1975 Plan subdivided land on both sides of Tom’s Hollow Lane into six lots, numbered 1 through 6.

6. The 1975 Plan was approved on November 25, 1975, subject to the following four conditions set forth in a document entitled “Statement of Conditions of Planning Board Approval,” dated November 25, 1975 and recorded in said Deeds at Book 2342, Page 298, on May 24, 1976:

1. Tom’s Hollow Lane must be constructed in accordance with the covenant dated November 25, 1975, recorded at the Barnstable County Registry of Deeds on May 19, 1976, as Document Number 11038.

2. Lots 1, 2, 3, 4, 5, and 6 shall be released from the terms of the covenant described in article [1] herein, PROVIDED that thereafter only one dwelling unit shall be constructed on each of lots 1 through 6 inclusive.

3. Any further subdivision of any property fronting on or served by Tom’s Hollow Lane shall necessitate the construction of said road and the construction of municipal services including Town water facilities in accordance with the rules and regulations of the Orleans Planning Board.

4. Additional dwellings may be constructed on said lots 1 through 6, inclusive, following the construction of said Tom’s Hollow Lane and the way leading from Quanset Road to Tom’s Hollow Lane, and the construction of municipal services including Town water facilities in accordance with the rules and regulations of the Orleans Planning Board.

(the “1975 Conditions”).

7. The 1975 Plan, as endorsed and recorded, contains the following note: “See Statement of Conditions dated Nov. 25, 1975 to be recorded conversant with the recording of this Plan.”

8. Lots 1 through 6 on the 1975 Plan were released from the covenant by instrument dated April 12, 1983 and recorded on April 13, 1983 “subject, however, to matters set forth in a document entitled, ‘Statement of Conditions of Planning Board Approval’ dated November 25, 1975 and recorded at Barnstable Registry of Deeds in Book 2342, Page 298.”

9. Tom’s Hollow Lane is a private way, which does not meet the roadway design and construction standards set forth in the Orleans Subdivision Rules and Regulations (the “Subdivision Regulations”). And there are also no municipal services, such as public water facilities, installed in Tom’s Hollow Lane.

10. On November 2, 2007, the Kennedys filed an application for approval of a definitive subdivision plan, which proposed to further divide Lots 4 and 5 on the 1975 Plan into a total of four building lots, and proposed to make various roadway and utility improvements to Tom’s Hollow Lane (the “2007 Application”). The 2007 Application included a request for waivers from the Subdivision Regulations relative to dead end streets; standards for radius curves, road surface width, sight distances, maximum grade, road surface material, and berms; and also requested a frontage waiver for a “panhandle lot.”

11. On November 27, 2007, the Board voted to grant some of the requested waivers, but denied the requested waivers relating to standards for dead end streets and road surface material. The Board then voted to deny the 2007 Application. The Board’s 2007 decision, titled “Certificate of Disapproval of a Modification of a Definitive Subdivision Plan,” listed two reasons for disapproval:

1. The proposed plan does not meet the requirements of the Zoning Bylaw and the Orleans Subdivision Rules & Regulations.

2. The applicant has not adequately demonstrated that the granting of the requested waivers is in the public interest.

12. On December 18, 2007, the Kennedys appealed the 2007 disapproval decision, under G.L. c. 41, § 81BB. That appeal remains pending in the Land Court as case no. 07 MISC 363660 (the “2007 Appeal”).

13. During the course of the 2007 Appeal, the Land Court (Trombly, J.) issued a Remand Order requiring the Board to further explain its reasons for disapproval, based on the existing record. In response to said Remand Order, the Board issued a Supplemental Decision on September 12, 2008. The Supplemental Decision provided more detailed reasons for the Board’s 2007 disapproval, including traffic and safety concerns, and non-compliance with Sections 192-1B (1) and (2), 192-10C, and 192-10F of the Subdivision Regulations [Note 3] as the basis for disapproving the further division of the land on a non-conforming roadway (i.e., Tom’s Hollow Lane).

14. In 2010, the Kennedys and the Board negotiated a further remand in the 2007 Appeal. The parties’ Stipulation of Remand, which was filed with the Court on May 13, 2010, required in part that:

1. The pending case shall be remanded to the Planning Board for the purpose of the Board’s consideration of the approval of one additional panhandle lot on Lot 4, 40 Tom’s Hollow Lane. There shall be no improvements required for Tom’s Hollow Lane as a condition of the additional lot and any conditions imposed by the Planning Board, other than the condition to impose a restriction on Lot 5, shall be acceptable to the Kennedys in their sole discretion. The approval of the one additional panhandle lot shall be conditioned upon compliance with all matters set forth in this Stipulation of Remand. The Board’s action on remand shall be undertaken only after the Board has first given full legal notice of, and conducted a new public hearing.

2. Lot 5, 50 Tom’s Hollow Lane shall be subject to a permanent restriction that it shall not be further divided or subdivided. The restriction shall be for the benefit of and enforceable by the Town of Orleans and shall run with the land and be binding on successors and assigns…. The restriction shall be duly executed by the Kennedys and recorded in the Barnstable County Registry of Deeds prior to the recording of the deed from the Kennedys to the third-party purchasers of Lot 5, 50 Tom’s Hollow Lane; and the deed to the third-party purchasers shall specifically state that it is subject to the restriction for the benefit of the Town of Orleans…. [T]he restriction shall be conditional on the Planning Board’s approval of one additional panhandle lot on Lot 4, 40 Tom’s Hollow Lane as set forth in Paragraph 1 above.

15. On or about May 13, 2010, one day prior to the court approving the Stipulation of Remand, the Kennedys conveyed the land at 50 Tom’s Hollow Lane (Lot 5) to the Samuelsons, subject to a “Grant of Restriction” to the Town of Orleans, to be recorded therewith. The Grant of Restriction, which was recorded in the Barnstable Registry of Deeds at Book 24552, Page 97, provides that Lot 5 shall not be further divided or subdivided, but also provides:

… that this restriction is granted on the condition that it shall not become effective unless the Town of Orleans Planning Board approves an additional panhandle lot on 40 Tom’s Hollow Lane, Orleans, MA (Lot 4 on Plan Book 303, Pages 99-100), that the Kennedys accept the approval of the Planning Board by not taking appeal of the decision of the Planning Board and that the decision of the Planning Board becomes final. …

16. On May 14, 2010, one day after Lot 5 was conveyed to the Samuelsons, the Land Court (Trombly, J.) entered an Order of Remand, approving the parties’ Stipulation of Remand and ordering action consistent with its terms.

17. On May 26, 2010, the Kennedys filed a new application for approval of a definitive subdivision plan, together with a request for waivers from all Subdivision Regulations relating to road construction and design, insofar as applicable, as well as a request for a frontage waiver to permit a “panhandle lot” (the “2010 Application”). The 2010 Plan does not request a modification of the 1975 Plan, or any of the 1975 Conditions.

18. The plan submitted with the 2010 Application shows the division of Lot 4 into two new lots, including a panhandle lot, with both lots fronting on, and accessed by, Tom’s Hollow Lane (the “2010 Plan”). The 2010 Plan shows no proposed improvements to Tom’s Hollow Lane, and no installation of water or other municipal services. It also contains no reference to the 1975 Plan or Conditions.

19. On June 22, 2010, following a public hearing, the Board voted to approve the 2010 Plan as submitted, and also voted to approve a “waiver from the street frontage requirements of the Zoning By-law to allow for a panhandle lot.” Its vote approving the 2010 Plan was made subject only to conditions recommended by the Board of Health concerning the existing septic system on Lot 4B. The record of the Board’s June 22, 2010 votes does include any vote to waive specific Subdivision Regulations. The record of the Board’s June 22, 2010 votes does not include a vote to modify the 1975 Plan or the 1975 Conditions. [Note 4]

20. The Board’s written decision, filed with the Town Clerk on June 23, 2010 (the “2010 Decision”) does not address any waivers from the Subdivision Regulations. Although the 2010 Decision is entitled “Modification to a Definitive Subdivision Plan,” the Decision makes no reference to proceedings conducted in accordance with G.L. c. 41, § 81W, makes no reference to the 1975 Plan (or any other plan) to be modified, and makes no reference to the 1975 Conditions or Covenant Release. The 2010 Decision describes only the Board’s approval of the 2010 Plan “as submitted” subject to the two conditions recommended by the Board of Health.

DISCUSSION

An appeal under G.L. c. 41, § 81BB is subject to de novo review, requiring the judge to determine, among other things, whether the subject subdivision plan conforms to the applicable subdivision rules and regulations and to the recommendations of the local board of health. Here, the Samuelsons, as the parties objecting to the 2010 Decision, would have the burden at trial to prove that the Board exceeded its authority in approving the 2010 Plan by demonstrating that the Plan did not so conform. See e.g., Strand v. Planning Bd. of Sudbury, 7 Mass. App. Ct. 935 (1979); Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 (1975). As the parties moving for summary judgment, however, the Kennedys had the burden of proving both the absence of any genuinely contested issue of material facts, and their entitlement to judgment as a matter of law. Although the Kennedys were successful in establishing absence of disputed material facts, they failed to demonstrate that the undisputed material facts entitle them to judgment dismissing the Samuelsons’ appeal. Instead, the undisputed material facts demonstrate that the Board did exceed its authority when it approved the subdivision of Lot 4 without first having modified the 1975 Plan approval, in accordance with the procedures set forth in G.L. c. 41, § 81W, to eliminate or amend the 1975 Conditions limiting further subdivision.

It is undisputed that Tom’s Hollow Lane is a private way which has never been brought into conformance with the Subdivision Regulation standards for construction of roadways and installation of municipal services; that the 1975 Plan was approved subject to the condition that further subdivision of any land fronting on or served by Tom’s Hollow Lane will necessitate construction of that roadway and installation of municipal services in accordance with the Board’s Subdivision Regulations; that the 2010 Plan shows the subdivision of Lot 4 into two new lots fronting on, and accessed by, Tom’s Hollow Lane; that said Lot 4 was shown on the 1975 Plan; and that the 2010 Plan proposed no improvements to Tom’s Hollow Lane. It is also undisputed that the Board approved the 2010 Plan without requiring any improvements to Tom’s Hollow Lane, and without expressly granting waivers from any of the Subdivision Regulations pertaining to roadway construction standards and installation of municipal services. Finally it is undisputed that the Board approved the 2010 Plan without having first modified or amended the 1975 Plan to change or eliminate the limitations on further subdivision. [Note 5]

The Kennedys argue that the 2010 Plan was entitled to approval, as a matter of law, in accordance with G.L. c. 41, § 81U because it met all applicable Subdivision Regulations and was conditionally approved by the Board of Health. The Kennedys assert, moreover, that the 1975 Conditions requiring improvements to Tom’s Hollow Lane as a pre-condition for further subdivision of land served by or fronting on Tom’s Hollow Lane are inapplicable to the 2010 Plan. The Kennedys contend that their 2010 application for subdivision approval proposed no improvements to Tom’s Hollow Lane because, as contemplated under the Stipulation of Remand and the Court’s Remand Order, none were required. They say that, in any event, the Subdivision Regulations pertaining to roadway design and construction are applicable only to roads proposed within a new subdivision, whereas Tom’s Hollow Lane already exists and is not within the boundaries of the subdivision tract shown on the 2010 Plan. Finally, the Kennedys contend that the 1975 Conditions limiting further subdivision of land served by the unimproved Tom’s Hollow Lane no longer apply because they expired in 2006 pursuant to G.L. c. 184, § 23. As discussed below, the Kennedys’ arguments are all unavailing.

First of all, the facts in this case fully contradict the Kennedys’ argument that the division of Lot 4 into two new lots is entitled to approval without regard to the adequacy of Tom’s Hollow Lane to serve those lots. Contrary to the Kennedys’ characterization of the 2010 Plan, it is not a “stand alone” plan and Tom’s Hollow Lane is not outside the 2010 subdivision tract. Rather, the 2010 Plan shows the subdivision of Lot 4 into two lots fronting on, and accessed by, Tom’s Hollow Lane. Not only does Lot 4 itself front on Tom’s Hollow Lane, but the division of Lot 4 into two lots is necessarily dependent upon the existence of, and adequacy of, Tom’s Hollow Lane to serve as frontage for the two new lots. See, e.g., Arrigo v. Planning Board of Franklin, 12 Mass. App. Ct. 802 , 810 (1981) (primary significance of frontage for purposes of the Subdivision Control Law is to ensure vehicular access and availability of municipal services to lots in a subdivision).

Secondly, the Kennedys’ contention that Tom’s Hollow Lane is not subject to the construction standards in the Subdivision Regulations because it is an existing way as opposed to a newly proposed subdivision access road, completely ignores the 1975 Conditions and the conditions of the Covenant Release. The 1975 Plan showed the division of land on both sides of Tom’s Hollow Lane into a total of six lots, including Lot 4. That the Board in 1975 treated the then-existing Tom’s Hollow Lane as the subdivision access road serving all six lots is also reflected in the 1975 Conditions and in the provisional Covenant Release for Lots 1 through 6 on the 1975 Plan. It is, moreover, apparent from these documents that the limitations on further subdivision were integral to the Board’s approval of the 1975 Plan in light of the existing condition of Tom’s Hollow Lane and lack of municipal services therein.

It is well within a planning board’s authority to limit the number of lots in a subdivision where access and/or municipal services are inadequate, provided the limitations are noted on the approved plan. Hamilton v. Planning Bd. of Beverly, 35 Mass. App. Ct. 386 , 388 (1993). The Board in 1975 exercised this authority when it imposed the 1975 Conditions, and referenced the Conditions on the endorsed Plan. Where a note on the approved plan limits the number of lots in the subdivision, that note is an integral part of the subdivision approval. Id. Therefore, absent modification proceedings in accordance with G.L. c. 41, § 81W to eliminate or modify the 1975 Conditions prohibiting further subdivision and more than one dwelling on each of the six lots until Tom’s Hollow Lane is improved to meet the Board’s subdivision roadway and water facility standards, those Conditions continue to limit development of the six lots shown on the 1975 Plan. The Board’s approval of the 2010 Plan, without first modifying the 1975 Plan, violated those conditions, as a matter of law. [Note 6] See Matthews v. Planning Board of Brewster, 72 Mass. App. Ct. 456 (2008).

Finally, contrary to the Kennedys’ claim, the 1975 Conditions did not automatically expire in 2006 pursuant to G. L. c. 184, § 23. The provisions of that statute, which generally limit conditions or restrictions on title or use of real property to a term of thirty years after recording, are not applicable to conditions imposed on a subdivision approval. The Kennedys’ reliance on Murphy v. Planning Board of Hopkinton, 70 Mass. App. Ct. 385 (2007) is misplaced. See Killorin v. Zoning Bd. of Appeals of Andover, 80 Mass. App. Ct. 655 , 659 (2011), in which the Appeals Court distinguished a restriction imposed as a condition on a governmental approval from a restriction of the type addressed in Murphy, which was held by a public body pursuant to a written agreement or contract. The Court equated only the second type with the term “restriction” as used in G.L. c. 184, § 23.

Here, the 1975 Conditions were not incorporated into any written agreements entered into between a landowner and the Town of Orleans, or its Planning Board. Nor did the 1975 Conditions require the subdivision applicant/landowner to impose a deed restriction on the subject land. Therefore, the 1975 Conditions are not governed by Chapter 184 and have not expired.

CONCLUSION

Because Tom’s Hollow Lane has not been brought into compliance with the roadway construction and water facility standards of the Subdivision Regulations, the subdivision of Lot 4 as shown on the 2010 Plan is impermissible under the 1975 Conditions which, in the absence of a modification or amendment in accordance with G.L. c. 41, § 81W, continue to control. Therefore, the 2010 Decision approving the 2010 Plan, without first modifying the 1975 Conditions, exceeded the Board’s authority as a matter of law, and must be annulled.

Judgment shall enter accordingly.