From Casetext: Smarter Legal Research

Browne v. Planning Bd. of Beverly

Appeals Court of Massachusetts.
Jun 2, 2017
91 Mass. App. Ct. 1125 (Mass. App. Ct. 2017)

Opinion

16-P-895

06-02-2017

Catherine S. BROWNE & others v. PLANNING BOARD OF BEVERLY& another.


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following the parties' cross motions for summary judgment in a Land Court case involving the approval of a subdivision in the city of Beverly (city) (case no. 11 Misc 452175), a Land Court judge issued a judgment that resolved the summary judgment claims and also dismissed a closely related complaint filed by the plaintiffs against the city's planning board (board) alleging that the board had exceeded its authority (case no. 11 Misc 450876). On appeal, the plaintiffs challenge the portion of the judgment affirming the board's approval of defendant Montrose School Park, LLC's (Montrose) "Second Modified Plan" (plan) as a minor subdivision. They also claim the judge erred in striking the "Open Space Residential Design" (OSRD) condition the board placed on the plan, and in denying their cross motion for summary judgment. Finally, they claim error in the judge's dismissal of their complaint in case no. 11 Misc 450876 challenging the board's actions as exceeding its authority. We affirm.

1. Summary judgment for Montrose. The plaintiffs claim that judgment should not have entered for Montrose with regard to the board's approval of the plan because the plan does not qualify as a "minor" subdivision under the city's subdivision rules and regulations. We disagree. We review the allowance of a motion for summary judgment de novo to determine if, viewing the evidence in the light most favorable to the nonmoving party, there is no issue of material fact and the moving party is entitled to a judgment as a matter of law. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991) ; Federal Natl. Mort. Assn. v. Hendricks, 463 Mass. 635, 637 (2012).

The plaintiffs challenge three conclusions in the approval of the plan: whether the subdivision road is under the 250-foot limit, whether lot 3 has sufficient frontage, and whether the subdivision road provides access to more than the maximum of six lots. The judge held a hearing to determine whether there were any facts in dispute, and concluded in his supplemental decision that none of these claims involved a factual dispute warranting denial of summary judgment.

a. Subdivision road length. The plaintiffs take issue with both the board and the judge crediting the affidavit of Peter Ogren in determining the length of the subdivision road. When Montrose submitted the plan to the board, the road complied with the 250-foot limit, measured to the end of the turnaround. Ogren, the registered professional engineer on the project, stated in his affidavit that "[w]hen [the road on the First Modified Plan is] measured from its intersection with Hale Street to the center of the turnaround (determined by considering the portion of the centerline of the road from the beginning of the turnaround and the end of the turnaround, and taking the mid-point of that line segment), the proposed subdivision road is 249.989 feet long.... On the Second Modified Plan, the proposed subdivision road ... is 249.65 feet long." The board approved the plan. See city subdivision rules & regulations, § IV(B)(5)(c) ("For dead ends, there shall be cul-de-sacs or other turning designs acceptable to the Planning Board"). The plaintiffs point to no evidence that this measurement is incorrect, nor do they raise a factual dispute merely by questioning Ogren's affidavit.

b. Lot 3 frontage. The plaintiffs also challenge the dimensions of lot 3 on the plan, claiming that the lot does not have the required 100 feet of frontage, and that this raises a dispute of fact rendering summary judgment inappropriate. We disagree. The plaintiffs' main argument rests upon the ninety-degree turn in the frontage measurement when measured along the street line; in their view, the measurement should be made using a straight line between the two end points of the lot. The interpretation of how frontage should be measured is an issue of law, not an issue of fact. "Statutory interpretation is a question of law for the court." Boston Police Patrolmen's Assn. v. Boston, 435 Mass. 718, 719 (2002).

As with the issue concerning the length of the subdivision road, the plaintiffs offer no authority regarding the frontage requirement's measurements besides their argument that because there is no language to the contrary, " ‘distance’ should be measured along a straight line between two points." Yet, as the judge pointed out, the plaintiffs take no issue with the other lots where frontage is calculated along a curved line. The judge did not credit the plaintiffs' "hypothetical" line; he found "[t]he only fair reading of the zoning ordinance and the subdivision rules and regulations is one that makes them consistent and uses the measurement of the actual lot line itself." This is a fair interpretation and raises no factual dispute.

c. Number of subdivision lots. The plaintiffs next claim that the subdivision encompasses seven lots, that the maximum allowed is six, and that this error precludes the plan from qualifying as a minor subdivision. While it is undisputed that the plan creates six lots abutting the subdivision street, the plaintiffs' concern is with the easement across lots 2 and 3. The judge, however, determined that the condition imposed on the plan requiring "a deed restriction prohibiting [l]ot 6 from using the subdivision road for access or frontage" ensures that only six lots may access the subdivision road. The plaintiffs argue this solution is not permanent and that the restriction may never be enforced. This argument is speculative. A condition of the plan's approval is that a permanent deed restriction be put in place establishing that the subdivision road shall not serve as frontage or access to lot 6. There is no reason to believe that the deed restriction will not be put in place, and therefore there is no dispute as to a genuine issue of material fact warranting reversal of summary judgment.

2. Cross motion for summary judgment. The plaintiffs contend that their cross motion for summary judgment should have been allowed. We disagree.

The board acted within its express authority in approving the plan as it complied with five minor, necessary waivers, which the board unanimously approved. See Krafchuck v. Planning Bd. of Ipswich, 453 Mass. 517, 529 (2009) (planning board has broad discretion to waive rules and regulations where not inconsistent with subdivision control law). As the judge found, however, the board did err in conditioning its approval on requiring that the plan comply with the OSRD ordinance, as it conflicts with the subdivision control law and would render the plan an OSRD plan rather than a minor subdivision. Waivers triggering OSRD compliance are usually those that seek dimensional relief or increased density. The OSRD condition then mandates significant amounts of open, undisturbed, and natural space as a tradeoff for the grant of significant dimensional or density waivers. That is not the case here. The plan required only minor waivers, none of which pertained to the open space and buffer zone requirements of the subdivision itself. See Collings v. Planning Bd. of Stow, 79 Mass. App. Ct. 447, 453 (2011) ("It is axiomatic that where the grant of a waiver must not be inconsistent with the intent and purpose of the subdivision control law, conditions imposed in exchange for granting a waiver similarly may not be inconsistent with the intent and purpose of the subdivision control law"). The OSRD condition was inappropriate as applied here, and the judge did not err in ordering it struck.

3. Dismissal of plaintiffs' complaint. The plaintiffs assert that their complaint in Land Court case no. 11 Misc 450876 should not have been dismissed as a part of the summary judgment proceeding in case no. 11 Misc 452175, as Montrose did not move for summary judgment on the plaintiffs' complaint in case no. 11 Misc 450876. The judge determined that the two cases overlapped so much that even though the motions for summary judgment were only filed in one case, the issues were addressed in both cases, and the overlapping claims and defenses need not be adjudicated in two separate proceedings as he had jurisdiction to enter summary judgment in both. Because the plaintiffs' complaint challenged generally the same issues raised in the other case, summary judgment was appropriate where there was nothing left to be litigated in terms of material facts.

Judgment dated January 8, 2016, entered in cases no. 11 Misc 450876 and no. 11 Misc 452175 affirmed.

Alfred L. Browne, Antoinine Gal, Joseph Gal, Thomas Grant, Anne Lewis, Robert J. Lewis, Leslie Lyman, and R. Jeffrey Lyman.


Summaries of

Browne v. Planning Bd. of Beverly

Appeals Court of Massachusetts.
Jun 2, 2017
91 Mass. App. Ct. 1125 (Mass. App. Ct. 2017)
Case details for

Browne v. Planning Bd. of Beverly

Case Details

Full title:Catherine S. BROWNE & others v. PLANNING BOARD OF BEVERLY& another.

Court:Appeals Court of Massachusetts.

Date published: Jun 2, 2017

Citations

91 Mass. App. Ct. 1125 (Mass. App. Ct. 2017)
86 N.E.3d 509