Opinion
18-P-884
04-19-2019
JOHN McPHERSON & another v. PLANNING BOARD OF PLYMOUTH & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, John and Brenda McPherson, appeal from a Superior Court judgment affirming the decision of the town of Plymouth planning board (board) granting a special permit to subdivide property into three lots. Lacking a record upon which to review the judgment, we affirm.
We have only such materials as the parties put before us; "it is the appellant's responsibility to ensure that the record is adequate for appellate review." Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018), quoting Commonwealth v. Woody, 429 Mass. 95, 97 (1999). See Mass. R. A. P. 18 (a), as amended, 425 Mass. 1602 (1992). In the absence of an adequate record, "no reasonable basis exists for the court to review, much less disturb, the judge's findings." Taylor v. Beaudry, 82 Mass. App. Ct. 105, 118 (2012).
The plaintiffs argue that "[t]he Applicants never submitted evidence to the Board that proves that the proposed [rural density development] is consistent with the Town's Village Centers Plan." Even assuming the doubtful proposition that consistency with the town's village centers plan was a matter that had to be proved to the board, rather than one of many factors to be considered by the board in determining whether to issue a permit, we have no basis for evaluating the plaintiffs' assertion. They have provided only four of the eleven exhibits admitted in the Superior Court, and they have not provided any pleadings in which they may have raised this issue before appeal. Although they purport to quote a portion of the transcript, they have not provided us with a copy of the transcript. See R.M. Parker Co. v. Marmik, LLC, 88 Mass. App. Ct. 654, 655 n.2 (2015) ("the findings are in essence unreviewable because the trial transcript was not included in the appellate record"); Buddy's Inc. v. Saugus, 62 Mass. App. Ct. 256, 264 (2004) ("reliance upon the evidence at trial is misplaced if only because [the party] failed to provide us with the transcript"). In short, there is no way for us to evaluate whether consistency with the town's village centers plan was proved, either to the board or to the Superior Court.
Similarly, we cannot review the plaintiffs' assertions regarding the impact statement. The town's zoning bylaw § 205-9(C)(3)(e) requires an impact statement, not as an end in and of itself, but as an aid for the board "to evaluate the impact of the proposed development on Town services and the welfare of the community." The judge found that "the Board had before it the relevant evidence and made the necessary findings relating to environmental design." The board's decision, which has been provided to us, finds minimal detrimental impact on town services and the welfare of the community.
The plaintiffs, however, assert that "[t]he judge was presented no evidence and made no rulings on these issues [impact on fire and police protection, effects on the subterranean water table, the effect of proposed septic systems, and the ecology of the vicinity of the proposed development], nor did the Applicants enter an impact statement into evidence at trial." We cannot fault the judge for failing to address specifically every particular that could affect town services or the welfare of the community, and we have no way of determining whether the applicants presented evidence on these matters. Accordingly, because the plaintiffs failed to provide an adequate record to establish their claims of error, we must affirm.
Judgment affirmed.
By the Court (Vuono, Massing & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 19, 2019.