Opinion
21-P-266
04-19-2022
JACKSON WOODS INVESTMENTS, LLC v. PLANNING BOARD OF HOLDEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A year after the planning board of Holden (board) approved a subdivision plan, developer Jackson Woods Investments, LLC (Jackson Woods), applied to amend a condition in the plan, which the board denied. Jackson Woods sought judicial review of the denial, and a Land Court judge dismissed the complaint on the grounds that it was untimely, holding that Jackson Woods's remedy was to appeal from the original approval. We affirm.
Background. The following facts are undisputed. Seeking to develop eighty-seven lots of single-family homes, Jackson Woods applied to the board under the subdivision control statute, G. L. c. 41, § 81K et seq., for approval of a subdivision plan. In a written decision recorded in the town clerk's office on September 4, 2018, the board approved the subdivision plan. The approval contained a condition (condition 5) that provided as follows:
"In lieu of the [s]ubdivision [r]oadway and [i]nfrastructure inspection fee of 2.5 [percent] of the bond amount as outlined in the Holden [s]ubdivision [c]ontrol [r]egulations [Jackson Woods] is responsible for funding a third party inspector for the installation of infrastructure, utilities, and stormwater systems. The inspector will be onsite for all site preparation and infrastructure. The frequency of inspections will be at the discretion of the Department of Public Works (DPW) and the [i]nspector must provide inspectional reports to the DPW [e]ngineering [d]ivision.
"[Jackson Woods] may submit the qualifications for three inspectors to the [t]own. These expenses are at the sole responsibility of [Jackson Woods] and are in lieu of the [s]ubdivision [c]ontrol [r]egulation inspection fees."
On November 14, 2019, Jackson Woods applied under G. L. c. 41, § 81W, for the board to amend condition 5, asking that the inspection costs be capped at 2.5 percent of the bond amount, "as outlined in the reg[ulation]s." After notice and a public hearing on the amendment application, the board denied the request. The board's decision was recorded in the town clerk's office on September 17, 2020.
Jackson Woods also requested several other amendments to the subdivision plan, and then withdrew some of those requests, leaving two other requests: (1) removal of a condition that could have been construed to require Jackson Woods to use bond monies to pay for snow plowing and road maintenance and (2) issuance of building permits for model homes before the roads were paved. The board amended the former condition to clarify it, but denied the request for building permits. Those decisions are not before us.
Jackson Woods's application to amend condition 5 asserted that the inspection costs were "exorbitant," and that the scope of the inspections was beyond what had been required for other subdivisions that it had developed in the town. In denying the proposed amendment, the board noted that Jackson Woods had "the ability to control the costs of [the] third party inspection[s] by performing proper project management," and that the town had "worked with [Jackson Woods] to limit the time the third party inspector(s) [were] onsite."
On September 29, 2020, Jackson Woods filed a complaint in the Land Court seeking judicial review of the board's decision pursuant to G. L. c. 41, § 81BB. Jackson Woods asserted that condition 5 deviated from the board's rules and regulations, and that the proposed amendment would comply with those rules and regulations. Jackson Woods further claimed that the board's denial of the proposed amendment exceeded the board's authority; that the board failed to specify where the original plan or the proposed amendment deviated from the board's rules and regulations, as required by G. L. c. 41, § 81U ; and that the board's denial of the proposed amendment was "unlawful, unreasonable, arbitrary[,] and capricious."
Those rules and regulations are not in the record before us, and we may not take judicial notice of them. See Mass. G. Evid. § 202(c) (2021).
The town moved to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (1) and (6), 365 Mass. 754 (1974), arguing that the application to amend condition 5 was an effort to circumvent the twenty-day deadline for appealing from the original approval. The judge agreed with the town and dismissed the complaint, ruling that the court lacked subject matter jurisdiction over the case because it was time barred under G. L. c. 41, § 81BB. The judge held that the twenty-day deadline under that statute ran from the board's decision in September 2018 approving the original subdivision plan, not from the board's decision in September 2020 denying the application for an amendment to condition 5. This appeal ensued.
Discussion. "We review de novo the allowance of a motion to dismiss for lack of subject matter jurisdiction." 311 West Broadway LLC v. Board of Appeal of Boston, 90 Mass. App. Ct. 68, 73 (2016). At the outset, we note that "[t]he Subdivision Control Law is a ‘comprehensive statutory scheme,’ " and that its "intention ... is 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" (emphasis and citations omitted). Nantucket Land Council, Inc. v. Planning Bd. of Nantucket, 5 Mass. App. Ct. 206, 208-209 (1977).
General Laws c. 41, § 81BB, states that "[a]ny person ... aggrieved ... by any decision of a planning board concerning a plan of a subdivision of land ... may appeal ... to the land court; provided, that such appeal is entered within twenty days after such decision has been recorded in the office of the ... town clerk." That twenty-day limitation is jurisdictional and generally is strictly enforced. See Calnan v. Planning Bd. of Lynn, 63 Mass. App. Ct. 384, 389-390 (2005). See also Sergi v. Planning Bd. of Kingston, 60 Mass. App. Ct. 918, 919 (2004). There is no dispute that this requirement applied to the original decision approving the subdivision plan, and that Jackson Woods did not file an appeal from that decision within twenty days.
As characterized by Jackson Woods in its complaint, it applied to amend the subdivision plan to cap the inspection costs at 2.5 percent, contending that a higher amount was inconsistent with the board's regulations. However, under the subdivision plan, Jackson Woods agreed to "fund[ ] a third party inspector" in lieu of paying the 2.5 percent inspection fee required by the board's regulations. "If [Jackson Woods] felt that the planning board had imposed a requirement which was unreasonable or beyond the authority of the board, [its] remedy was by appeal under G. L. c. 41, § 81BB." Rounds v. Board of Water & Sewer Comm'rs of Wilmington, 347 Mass. 40, 45 (1964). Cf. Campanelli, Inc. v. Planning Bd. of Ipswich, 358 Mass. 798, 799 (1970) (in absence of original owner's appeal under G. L. c. 41, § 82BB, as amended through St. 1957, c. 199, § 2, condition of approval enforced even if unauthorized by statute); Klein v. Planning Bd. of Wrentham, 31 Mass. App. Ct. 777, 778-780 (1992) (regardless of its form, pursuit of modification of special permit attacked authority of board to impose condition and was equivalent of appeal). Although amendment is available under G. L. c. 41, § 81W, it is not a substitute for an appeal from the original subdivision plan on the ground that condition 5 was supposedly invalid because it required Jackson Woods to fund the third-party inspector in lieu of paying the 2.5 percent fee provided in the regulation. See Sergi, 60 Mass. App. Ct. at 919 (after board allowed developer's modification of subdivision plan to protect wetlands, abutter who had not appealed from original plan could not appeal from modification on other grounds, even if original plan was "invalid"). Cf. Klein, supra. Jackson Woods alleged no more in its complaint, and the judge correctly dismissed it.
In contrast to its application to the board for amendment of condition 5, see note 2, supra, Jackson Woods did not claim in its Land Court complaint that the inspection costs were beyond what was contemplated by Jackson Woods and the town at the time of the original subdivision plan. Thus, that issue is not before us.
We are well aware of the distinction between zoning and subdivision control, but we disagree with Jackson Woods's contention that, with regard to the particular issues before us, zoning cases such as Klein are not instructive.
Judgment affirmed.