Opinion
18-P-1059
03-25-2019
NICHOLAS V. LIAKAS v. PLANNING BOARD OF DRACUT.
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 plaintiff brought an action for declaratory relief seeking to obtain a judgment that a utility easement would satisfy frontage requirements on his property to allow him to build a home. On summary judgment, a judge of the Superior Court dismissed the case on the basis that his action presented no actual controversy. We affirm.
Background. The plaintiff owns a house on property located in Dracut (town); the property contains a utility easement. In 2014, the plaintiff obtained permission to subdivide his property in order to build additional homes on it. He did not proceed with developing the subdivision, however, because he found it financially unfeasible. In 2015, the plaintiff submitted a letter to the planning board of Dracut (board) requesting permission to build an additional house on his property, using the utility easement as required frontage, and he attended a board meeting to explain his plans. When the board failed to take any action on his request, the plaintiff filed a complaint in Superior Court. The complaint sought a judicial declaration that the utility easement was a town way that could be used to provide the necessary frontage to build an additional house. The complaint also requested an order compelling the board to allow him to build the house.
Discussion. We review the allowance of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012). Summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id. Here, there was no dispute that § 2.11.42 of the town bylaws prohibited the plaintiff from building another dwelling on his property ("No more than one building for dwelling purposes shall be located upon a lot"). There was also no dispute that the plaintiff had failed to comply with the 2014 subdivision requirements that would have allowed him to build. The plaintiff sought to avoid the subdivision requirements by arguing that the utility easement was a public way, such that he could build under an exception to the subdivision control law.
"[T]he division of a tract of land into two or more lots shall not be deemed to constitute a subdivision within the meaning of the subdivision control law if, at the time when it is made, every lot within the tract so divided has frontage on (a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon." G. L. c. 41, § 81L.
Yet, the plaintiff's 2015 letter to the board did not constitute a formal request for an endorsement that subdivision approval was not required. See G. L. c. 41, § 81P (request for endorsement that subdivision control law does not apply must be done pursuant to G. L. c. 41, § 81T); G. L. c. 41, § 81T (definitive plan of land must be submitted for approval or determination that approval not required). Thus, there was no formal application before the board on which it could take action. The board's failure to take action on something that was not properly before it presented no actual controversy in the Superior Court. See Colangelo v. Board of Appeals of Lexington, 407 Mass. 242, 247-248 (1990). Nor could a controversy be created simply by framing it as one for declaratory relief. See id. at 247. There was no error in the dismissal of the complaint for lack of an actual controversy.
Judgment affirmed.
By the Court (Blake, Lemire & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 25, 2019.