MARIA A. KITRAS, trustee, [Note 1] & another [Note 2] vs. ZONING ADMINISTRATOR OF AQUINNAH & others. [Note 3]

SPINA, J. The plaintiffs in this declaratory judgment action are trustees of two real estate trusts that own two parcels of land in the town of Aquinnah (town) on the island of Martha's Vineyard. Pursuant to G. L. c. 40A, § 6, fifth par., and G. L. c. 111, § 127P, they seek to use and enjoy their property in accordance with the local zoning bylaws and health regulations that were in effect at the time they filed preliminary subdivision plans for the land. In addition, the plaintiffs request a declaration that the designations of two "districts of critical planning concern" (DCPCs) by the Martha's Vineyard Commission (commission) pursuant to St. 1977, c. 831 (MVC Act), are invalid. [Note 4] The town, its zoning administrator, its board of health, and the commission (collectively, the defendants), filed motions for summary judgment as to the relevant claims against them. A judge in the Superior Court allowed the defendants' motions and dismissed the plaintiffs' complaint. The Appeals Court affirmed the judgment, [Note 5] but modified it to declare specifically the rights of the parties, namely that the plaintiffs were not entitled to either an eight-year zoning freeze under G. L. c. 40A, § 6, fifth par., or a three-year freeze

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on board of health regulations under G. L. c. 111, § 127P. [Note 6] See Kitras v. Zoning Adm'r of Aquinnah, 70 Mass. App. Ct. 561, 567 (2007). We granted the plaintiffs' application for further appellate review. For the reasons that follow, we now affirm the judgment of the Superior Court allowing the defendants' motions for summary judgment, as modified to declare the rights of the parties. [Note 7]

1. Background. On March 29, 1999, the town's planning board nominated the entire town as a DCPC. See St. 1977, c. 831, § 8. The commission voted on April 22, 1999, to accept this nomination for consideration. [Note 8] See id. On June 17, 1999, the commission designated the entire town as a DCPC. See id. On January 26, 2000, the planning board then requested that a town-wide rate of development district be nominated as a DCPC, which would have the effect of regulating the rate at which building permits were issued, thereby slowing development within the town. See id. On February 24, 2000, the commission approved and designated the building cap as a DCPC. See id. The planning board subsequently promulgated implementing regulations, approved

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by the commission, with respect to these two DCPCs, and the town incorporated these regulations into its zoning bylaws. See id. at § 10. While these designations and related regulations were being approved and adopted, a "moratorium" suspended the town's authority to issue development permits from April 22, 1999, until May 23, 2000, with certain limited exceptions set forth in St. 1977, c. 831, § 9.

Nonetheless, on June 29, 1999, the plaintiffs submitted preliminary subdivision plans to the planning board and the local board of health by hand delivering the plans to the town clerk pursuant to G. L. c. 41, § 81S. On June 30, 1999, the town approved changes to its zoning bylaws, including a restriction on building heights and an expansion of frontage requirements. On January 28, 2000, the plaintiffs submitted definitive subdivision plans to the planning board and the board of health in the same manner as they had submitted their preliminary plans.

On June 5, 2000, after the moratorium had expired, the plaintiffs sent letters (one for each real estate trust) to the town clerk requesting the issuance of certificates of constructive approval pursuant to G. L. c. 41, § 81V, [Note 9] stating that the planning board had failed to act in a timely manner on the plaintiffs' definitive subdivision plans, and, therefore, these plans were to be deemed approved. Citing the planning board's inability to approve subdivision plans during the moratorium, the town clerk issued identical letters denying the plaintiffs' requests for certificates.

On August 10, 2000, the planning board held a hearing on

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the plaintiffs' preliminary subdivision plans. The planning board denied the plans on the grounds that the plaintiffs were not present at the hearing, and that frontage and access requirements with respect to one of the parcels of land were inadequate.

On May 8, 2001, the plaintiffs again requested in writing that the town clerk issue certificates of constructive approval of their definitive subdivision plans. On May 25, 2001, the town clerk denied the requests, stating that the planning board had acted on, and had denied, the subdivision plans on August 10, 2000. In doing so, the town clerk mistakenly referred to the action taken by the planning board on the plaintiffs' preliminary subdivision plans. The planning board never acted on the definitive subdivision plans filed by the plaintiffs on January 28, 2000.

On August 23, 2002, the plaintiffs filed in the Superior Court a petition for a writ of mandamus to compel the town clerk to issue certificates pursuant to G. L. c. 41, § 81V, documenting constructive approval of their definitive subdivision plans. See G. L. c. 249, § 5. A judge granted the plaintiffs' petition, concluding that the definitive subdivision plans were constructively approved as a result of the town's inaction following the expiration of the moratorium on May 23, 2000. [Note 10] On appeal from the allowance of the mandamus action, a panel of the Appeals Court, in an unpublished memorandum and order pursuant to its rule 1:28, reversed the Superior Court judgment, concluding that the plaintiffs' fifteen-month delay in bringing their mandamus action was unreasonable. [Note 11] See Kitras v. Town Clerk of Aquinnah, 61 Mass. App. Ct. 1121 (2004). The plaintiffs remained without

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any certificates documenting constructive approval of their definitive subdivision plans.

In the meantime, on July 29, 2002, the plaintiffs filed a separate complaint in the Land Court in which they sought, among other things, a declaratory judgment that, due to inaction by the planning board, their definitive subdivision plans had been constructively approved, and the parcels of land at issue were entitled to the benefit of a zoning freeze pursuant to G. L. c. 40A, § 6, fifth par., [Note 12] commencing on the date their preliminary subdivision plans were submitted, even in the absence of certificates from the town clerk pursuant to G. L. c. 41, § 81V. The plaintiffs also sought a judgment declaring that the commission's designations of the DCPCs were invalid because the DCPCs served no regional purpose in protecting the island of Martha's Vineyard. [Note 13] On January 26, 2004, the Land Court action was transferred to the Superior Court pursuant to G. L. c. 211B, § 9.

In allowing the defendants' motions for summary judgment, [Note 14] the judge stated that constructive approval of the plaintiffs'

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subdivision plans was not sufficient to trigger a freeze of the town's zoning bylaws as of June 29, 1999, absent corresponding certificates from the town clerk. Further, the judge continued, it was undisputed that the plaintiffs never obtained, nor could they obtain, such certificates given the resolution of their mandamus action. With respect to the DCPCs, the judge concluded that the plaintiffs were not entitled to declaratory relief because their action was untimely and they had failed to satisfy their heavy burden of proving that the DCPCs were invalid under the MVC Act.

2. Standard of review. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 358 (1997). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue. See Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Any doubts as to the existence of a genuine issue of material fact are to be resolved against the party moving for summary judgment. See Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied, 459 U.S. 970 (1982).

3. Zoning freeze. The plaintiffs first contend that, pursuant to G. L. c. 40A, § 6, fifth par., it is the final approval of definitive subdivision plans, rather than the endorsement of such approval, that triggers the eight-year zoning freeze for the land shown on such plans. We disagree with the plaintiffs' view as to when and how this zoning freeze becomes effective.

Preliminarily, before analyzing the particulars of subdivision plan approval, we point out that the Zoning Act, G. L. c. 40A, and the subdivision control law, G. L. c. 41, §§ 81K-81GG, share a similar purpose, which is "to regulate the use of land to ensure the safety, convenience, and welfare of the inhabitants of municipalities." McElderry v. Planning Bd. of Nantucket, 431 Mass. 722, 726 (2000). As is relevant here, G. L. c. 40A, § 6,

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fifth par., relieves a developer who has submitted a subdivision plan to a local planning board from compliance with future changes to zoning bylaws by (1) freezing the applicable bylaws governing the land shown on the subdivision plan as of the time when the plan is first submitted to the planning board and while the plan is being processed under the subdivision control law (the process freeze); and (2) freezing those same zoning bylaws for eight years from the date of the endorsement of final approval of a definitive plan. The intent of this statutory provision is "to protect landowners and developers 'from the "practice in some communities of adopting onerous amendments to the zoning by-law after submission of a preliminary plan which is opposed by segments within the community." ' " Massachusetts Broken Stone Co. v. Weston, 430 Mass. 637, 640-641 (2000), quoting Heritage Park Dev. Corp. v. Southbridge, 424 Mass. 71, 76 (1997).

We turn now to consideration of the subdivision control law to clarify when constructive approval of a definitive subdivision plan becomes final and when a developer thereby becomes entitled to an eight-year zoning freeze under G. L. c. 40A, § 6, fifth par. The statutory scheme is intended to "set up an orderly procedure for definitive action within stated times, and for notice of that action in offices of record within stated times, so that all concerned may rely upon recorded action or the absence thereof within such times." Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 125 (1964). General Laws c. 41, § 81U, fifth par., provides that a definitive subdivision plan is deemed to be approved if the planning board fails "either to take final action or to file with the city or town clerk a certificate of such action on the definitive plan within ninety days after such submission." See Stoner v. Planning Bd. of Agawam, 358 Mass. 709, 713-714 (1971) (failure of planning board to comply with requirements of G. L. c. 41, § 81U, results in "constructive" approval of subdivision plan); Kay-Vee Realty Co. v. Town Clerk of Ludlow, 355 Mass. 165, 168 (1969) (same). Then, pursuant to G. L. c. 41, § 81V, in those instances where a plan has been deemed approved because the planning board has failed to act, "the city or town clerk shall, after the expiration of twenty days without notice of appeal . . . or, if appeal has been taken, after receipt of

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certified records of the . . . court indicating that such approval has become final, issue a certificate stating the date of the submission of the plan for approval, the fact that the planning board failed to take final action and that the approval resulting from such failure has become final." [Note 15] The import of these statutory provisions is that constructive approval under § 81U can become final in one of two ways: (1) "the expiration of twenty days without notice of appeal"; or (2) if there has been an appeal, a court decision upholding the constructive approval. G. L. c. 41, § 81V. Either way, the town clerk then shall "issue a certificate stating . . . that the approval . . . has become final." Id. See Kay-Vee Realty Co. v. Town Clerk of Ludlow, supra at 169 (where subdivision plan constructively approved and no appeal is taken, petitioner entitled to certificate from town clerk under § 81V).

The language of § 81V does not provide that a town clerk transforms a constructive approval due to planning board inaction into a final approval by issuing a certificate. Rather, the town clerk issues the certificate after the constructive approval "has become final." G. L. c. 41, § 81V. In other words, the issuance of the certificate officially memorializes that approval has become final, either by expiration of the twenty-day appeal period or by a court decision resolving the appeal. The issuance of the certificate is not an act that, itself, confers finality. Rather, it evidences finality. A contrary determination, namely that if a town clerk fails to issue a certificate, then there is no final approval of a definitive subdivision plan, would give town clerks the authority to decide which plans receive final approval and which ones do not. Final approval of a subdivision plan is determined by the planning board through its own action or inaction. See G. L. c. 41, § 81M. See also Beale v. Planning Bd. of Rockland, 423 Mass. 690, 691 (1996) (planning board acted within its authority in disapproving definitive subdivision plan that would violate applicable zoning bylaw); Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306, 308 (1976) ("planning board may not disapprove a plan not shown to violate the regulations of the planning board or the requirements of the board of health").

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Here, the planning board never acted on the definitive subdivision plans filed by the plaintiffs on January 28, 2000. Such inaction resulted in constructive approval of the plans pursuant to G. L. c. 41, § 81U, fifth par. That constructive approval of the plaintiffs' definitive subdivision plans became final when the twenty-day appeal period expired. See G. L. c. 41, § 81V. However, the eight-year zoning freeze under G. L. c. 40A, § 6, fifth par., did not commence because the town clerk did not issue a certificate memorializing final approval of the subdivision plans. The language of § 6 provides that the land shown on a definitive subdivision plan shall be entitled to a statutory zoning freeze "if such definitive plan or an amendment thereof is finally approved, for eight years from the date of the endorsement of such approval" (emphasis added). G. L. c. 40A, § 6, fifth par.

If a subdivision plan is approved by action of the planning board, then "the planning board shall cause to be made upon the plan a written endorsement of its approval." G. L. c. 41, § 81V. We recognize that there is no "endorsement" when a definitive subdivision plan is constructively approved through the inaction of a planning board. Nonetheless, we agree with the cogent reasoning of the Appeals Court that, while not identical, the certificate issued by the town clerk in such circumstances is the "functional equivalent[]" of a planning board's endorsement. Kitras v. Zoning Adm'r of Aquinnah, 70 Mass. App. Ct. 561, 566 (2007). "[E]ach evidences final approval [of a definitive subdivision plan], triggers the eight-year zoning freeze, entitles the party to record the plan, and triggers definite time periods for appeals." Id., citing G. L. c. 41, §§ 81V, 81X, 81BB, and G. L. c. 40A, § 6, fifth par. Moreover, it is the planning board's endorsement or the town clerk's certificate, as the case may be, that, by triggering the eight-year zoning freeze, terminates the process freeze that had been in effect since the first submission of the subdivision plan. Absent the planning board's endorsement or the town clerk's certificate, there is no way to identify, with precision, when the eight-year zoning freeze commences and terminates.

We add that a town clerk has a mandatory obligation to issue a certificate evidencing final approval of a definitive subdivision

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plan when a planning board fails to act within the prescribed time period. General Laws c. 41, § 81V, explicitly states that the town clerk "shall . . . issue a certificate stating the date of the submission of the plan for approval, the fact that the planning board failed to take final action and that the approval resulting from such failure has become final" (emphasis added). Such language does not give the clerk any discretion in this matter. If a town clerk refuses to issue a certificate, a developer can seek relief in the nature of mandamus. See Kay-Vee Realty Co. v. Town Clerk of Ludlow, supra (mandamus action appropriate to compel town clerk to certify, in accordance with G. L. c. 41, § 81V, that subdivision plan was constructively approved). See also Lutheran Serv. Ass'n of New England, Inc. v. Metropolitan Dist. Comm'n, 397 Mass. 341, 344 (1986) (mandamus action "is appropriate to compel a public official to perform an act which the official has a legal duty to perform"); Kupperstein v. Planning Bd. of Cohasset, 66 Mass. App. Ct. 905, 905-906 (2006).

The plaintiffs here sought such relief, and they obtained it when a judge in the Superior Court granted their petition for a writ of mandamus to compel the town clerk to issue certificates pursuant to G. L. c. 41, § 81V. However, the Appeals Court reversed that determination on the ground that the plaintiffs' petition was untimely. See Kitras v. Town Clerk of Aquinnah, 61 Mass. App. Ct. 1121 (2004). We denied the plaintiffs' application for further appellate review. 442 Mass. 1114 (2004). The plaintiffs are now bound by the final judgment of the Appeals Court, and, in the absence of certificates, the eight-year zoning freeze under G. L. c. 40A, § 6, fifth par., is not triggered. [Note 16] Moreover, the effect of the final judgment is to end the processing

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of the plaintiffs' definitive subdivision plans under the subdivision control law, and, as a consequence, the process freeze under § 6, fifth par., lapses. We conclude that the plaintiffs are not entitled to a declaration that they may use and enjoy their property under the zoning bylaws that were in effect at the time they filed their preliminary subdivision plans for the land.

4. Designation of the DCPCs. The plaintiffs next contend that the judge erred in concluding that their challenge to the commission's designation of the two DCPCs was untimely. We disagree.

As an initial matter, we point out that nothing in St. 1977, c. 831, permits a landowner to appeal from the commission's designation of specific areas on Martha's Vineyard as DCPCs. Section 18 of the MVC Act states that "[a]ny party aggrieved by a determination of the commission may appeal to the superior court within twenty days after the commission has sent the development applicant written notice, by certified mail, of its decision and has filed a copy of its decision with the town clerk of the town in which the proposed development is located" (emphasis added). St. 1977, c. 831, § 18. The plain language of this provision indicates that the right to appeal from a determination by the commission applies only to "developments of regional impact," not to DCPCs. [Note 17]

In the alternative, an action in the nature of certiorari may be brought pursuant to G. L. c. 249, § 4, to "correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal." Such an action "shall be commenced within sixty days next after the proceeding complained of." G. L. c. 249, § 4. Here, the commission designated the entire town as

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a DCPC on June 17, 1999. It designated the building cap as a DCPC on February 24, 2000. Even allowing the plaintiffs' action to date back to July 29, 2002, when they filed their original complaint in the Land Court, [Note 18] their action was untimely. [Note 19]

The plaintiffs assert that G. L. c. 240, § 14A, establishes the right of a landowner to challenge "the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of [G. L. c. 40A] or under any special law relating to zoning, so called, which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land, or any part thereof." The plaintiffs argue that the impact of the DCPCs is to restrict the use, enjoyment, and development of their property. While this may be true, G. L. c. 240, § 14A, is a "remedial statute" that is intended to "permit any landowner to petition for a decision concerning the validity or invalidity of any zoning restriction applicable to his land." Sturges v. Chilmark, 380 Mass. 246, 249 (1980). We stated in Island Props., Inc. v. Martha's Vineyard Comm'n, 372 Mass. 216, 229 (1977), that the MVC Act is a "polar opposite" from those local enactments

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contemplated by the Zoning Act, G. L. c. 40A. [Note 20] "Not only is chapter [831] a statute of the General Court; the reason of its being is to import regional -- island-wide and Statewide -- considerations into the protection of the land and water of Martha's Vineyard, considerations which, the Legislature could believe, the towns themselves had not and would not severally bring to bear. . . . The regional theme runs through the whole chapter from the makeup of the commission through the ultimate standards and regulations." Id. We conclude that G. L. c. 240, § 14A, enables a property owner to challenge the validity and scope of a municipal ordinance, bylaw, or regulation; it does not serve as a mechanism by which a landowner can challenge the designation of a DCPC.

5. Conclusion. There was no error in the Superior Court judge's allowance of the defendants' motions for summary judgment. The judgment below shall be modified to declare that the plaintiffs are not entitled to an eight-year zoning freeze under G. L. c. 40A, § 6, fifth par., or a three-year freeze of board of health regulations under G. L. c. 111, § 127P. As so modified, the judgment is affirmed.

So ordered.