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 Toms Hollow Lane into two new lots. Although the property at 40 Toms 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 Boards 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 Boards approval decision, claiming that the decision violated the conditions imposed on approval of the 1975 subdivision plan and was otherwise in excess of the Boards authority.
On February 11, 2011, the Kennedys filed a Motion for Summary Judgment, seeking dismissal of the Samuelsons appeal. [Note 1] Now, for the reasons set forth in this courts July 16, 2013 Decision Granting Summary Judgment in Favor of the Plaintiffs, it is:
ORDERED, DECLARED AND ADJUDGED that the Decision of the Defendant Orleans Planning Board, as filed with the Orleans Town Clerk on June 23, 2010, exceeded that Boards authority and is hereby ANNULLED.
[Note 1] Although the Planning Board and its members are nominal defendants, they have not participated in the defense of the decision under appeal.