Opinion
No. 11–P–1897.
2012-11-9
Joyce A. GRAVES v. PLANNING BOARD OF CHILMARK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
By the Court (GRAINGER, BROWN & SULLIVAN, JJ.).
The plaintiff, Joyce A. Graves, appeals from the entry of summary judgment dismissing her complaint against the planning board of Chilmark (board).
Background. In 1999 William and Joyce Graves owned approximately twelve acres of registered land located off Tea Lane in Chilmark. In February of that year they submitted an application to the board to divide the property into two lots as an approval not required (ANR) plan. After the board expressed concern that approval would result in still further subdivision, the Graveses withdrew their application. Following communications with the board, the Graveses resubmitted the application with the understanding that they would agree not to undertake any further subdivision. Accordingly, on April 2, 1999, the Graveses executed a document entitled “Covenant” which stated in pertinent part:
“Owner hereby covenants that following the re-subdivision of Lots 1 and 4 into two lots, the same being Lots 11 and 12 as shown on Land Court Plan No. 15222G (pending), no further subdivision of either Lot 11 or Lot 12 shown on Land Court Plan No. 15222G shall occur.
“Said covenant shall run with the land, and shall be binding on the Owner and all persons claiming under them.”
The board subsequently endorsed the ANR plan submitted by the Graveses with a notation stating “See Covenant dated April 2, 1999.”
William Graves is now deceased. In 2010, Joyce Graves sought approval for further subdivision and asserted that the covenant was invalid or unenforceable. We agree with the motion judge that the plaintiff's arguments are unavailing, and affirm the judgment dismissing her complaint.
Discussion. This case is governed by our decision in Murphy v. Planning Bd. of Hopkinton, 70 Mass.App.Ct. 385 (2007). The subdivision control law provides a twenty-day period to appeal the denial of an ANR plan. G.L. c. 41, § 81BB. Although the statute does not provide a time period for review of a plan that was approved, the proper measure is the sixty-day limitation imposed on petitions for certiorari. See Murphy, supra at 389, citing Stefanick v. Planning Bd. of Uxbridge, 39 Mass.App.Ct. 418, 424 (1995). See also G.L. c. 249, § 4. The plaintiff's challenge to the board's action is more than ten years beyond the limitations period.
Graves asserts that because she and her husband “voluntarily” placed the restriction on their property, she is free to remove it when she chooses. This argument turns the defense of duress to an agreement on its head, and we do not adopt it. She also asserts that the fact that the covenant was not recorded in the registry of deeds renders it unenforceable. This argument is inapplicable to the signatory of the agreement herself.
The board's endorsement of the ANR application, duly recorded, refers to the existence of the covenant.
The motion judge determined correctly that the complaint was untimely, and that the assertions advanced by Graves failed to raise a genuine issue on any material fact. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643–644 (2002).
Judgment affirmed.