Another v. Planning Bd. Of Stockbridge (and Three Companion Cases )

• Citation: 926 N.E.2d 578,76 Mass.App.Ct. 759
• Decision Date: 21 May 2010
• Docket Number: 07-P-1596.,No. 06-P-589,07-P-982,07-P-1595,06-P-589
• Parties: Richard BERNSTEIN & another v.PLANNING BOARD OF STOCKBRIDGE (and three companion cases ).
• Court: Appeals Court of Massachusetts

76 Mass.App.Ct. 759

926 N.E.2d 578

Richard BERNSTEIN & another ¹v.PLANNING BOARD OF STOCKBRIDGE (and three companion cases ²).

Nos. 06-P-589, 07-P-982, 07-P-1595, 07-P-1596.

Appeals Court of Massachusetts Suffolk.

Argued Oct. 14, 2009.

Decided May 21, 2010.

Christopher H. Heep for planning board of Stockbridge.

Arthur P. Kreiger, Cambridge, for Stone Ridge Associates, LLC.

Present: KANTROWITZ, SMITH, & GRAHAM, JJ.

SMITH, J.

These land use cases present a complex knot of interrelated litigation and appeals tied to the constructive approval of a definitive subdivision plan in Stockbridge (town). The four appeals, which we address together in this opinion, are appeals by the defendant planning board of Stockbridge (board). The board challenges (1) the entry of summary judgment in the Land Court in favor of the plaintiff developer Stone Ridge Associates, LLC (Stone Ridge ³), on Stone Ridge's application for a special permit to build within an overlay zoning district; (2) an amended summary judgment addressing whether the land in question is subject to a zoning freeze; and (3) two decisions of the Land Court annulling the board's rescission, on two separate occasions, of constructive approval of Stone Ridge's definitive subdivision plan.⁴

1 Background. Stone Ridge is the owner of a 99.6-acre parcel of land upon which it seeks to build a subdivision. The parcel is situated within a residential zoning district in the town. In the spring and the summer of 2002, Stone Ridge began the subdivision permitting process by filing two sets of preliminary subdivision plans with the board. Thereafter, in October, 2002, it filed a nine-lot definitive subdivision plan with the board. The board took no action on the definitive plan until March 24, 2003, when it filed a disapproval decision with the town clerk.

Because the board's decision did not fall within the ninety-day deadline required by G.L. 41, § 81U,⁵ Stone Ridge filed a complaint in the Land Court on April 1, 2003, seeking a declaration that the plan had been constructively approved as a result of the board's inaction, and also an order that the town clerk issue a certificate of constructive approval. More than three years later, in a decision dated May 2, 2006, a Land Court judge ⁶ ordered the town clerk to issue a certificate of constructive approval, which, in fact, was issued on June 30, 2006. The board did not appeal from the judge's order.

Against the backdrop of active litigation regarding the constructive approval of Stone Ridge's definitive subdivision plan, the board and Stone Ridge forged ahead with the approval process. Several of those actions gave rise to appeals currently before us. We address the background of each appeal in turn.

a Rescissions (Appeals Court docket nos. 07-P-1595 and 07-P-1596). On or about March 4, 2003, shortly after the ninety-day constructive approval deadline had passed, Stone Ridge entered into a loan agreement with JDI Loans, III, LLC (JDI), securing the loan agreement with a mortgage on the parcel. Thereafter, in a decision dated October 31, 2003, the board rescinded its apparent constructive approval of Stone Ridge's definitive subdivision plan. The board based the rescission on two grounds: first, that the plan did not meet the requirements of the town's subdivision regulations, and, second, that the application was deficient. The board also found that the mortgage transaction was not entered into in good faith because the mortgage was executed prior to issuance of a certificate of constructive approval. Stone Ridge appealed the board's decision to the Land Court, arguing that the rescission was in violation of G.L. c. 41, § 81W, which requires the consent of third-party mortgagees prior to the rescission of an approved subdivision plan.

A few years later, after Stone Ridge had paid off its mortgage with JDI, the board, on April 24, 2006, again rescinded the apparent constructive approval of the definitive subdivision plan, on the same grounds enumerated in its 2003 rescission. Once again, Stone Ridge appealed the board's rescission to the Land Court. Stone Ridge thereafter filed a combined motion for summary judgment as to both rescissions. Following a hearing, on August 13 2007, the judge issued a decision and judgment allowing Stone Ridge's combined motion for summary judgment and annulling each rescission. The board timely appealed from both rescissions.⁷

b Special permit application to build within overlay district (Appeals Court docket no. 06-P-589 ). Single family homes are permitted as of right in the town's residential zoning district; however, the town's by-law requires a special permit for construction on land that falls within the town's “Lake and Pond Overlay District” (LPOD). Section 6.5 of the by-law regulates activity within the LPOD “to protect and enhance the principal lakefronts of the Town of Stockbridge; to maintain safe, healthful conditions; to prevent and control water pollution; and, to preserve vegetative cover and natural beauty.” The parties do not dispute that some of the parcel falls within the LPOD.

In September, 2004, Stone Ridge applied for a special permit pursuant to the LPOD portion of the by-law (LPOD by-law). The board denied the special permit application in a decision dated February 15, 2005, concluding that Stone Ridge failed to demonstrate that the proposed construction would satisfy the environmental standards required by the LPOD by-law.

Stone Ridge timely appealed from the denial of its special permit application in the Land Court pursuant to G.L. c. 40A, § 17. In addition to arguing that the proposal satisfied the special permit criteria, Stone Ridge also sought a ruling that the LPOD by-law violated SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass.App.Ct. 101, 472 N.E.2d 269 (1984), because no substantial uses as of right were allowed within the LPOD. After the board filed its answer denying Stone Ridge's allegations, Stone Ridge moved for summary judgment. In a decision and judgment, the judge, on February 24, 2006, granted Stone Ridge's motion and invalidated the 2004 version of the LPOD by-law. The judge held that it violated the principles of SCIT, Inc., because it allowed no substantial uses as of right within the LPOD, requiring nearly every proposed use to seek the board's permission via a special permit.⁸ Essentially, the judge found that under the 2004 version of the LPOD by-law, the board was free to deny permission to any development in the LPOD. The judge nevertheless stayed the judgment for six months to allow the town to craft an LPOD by-law that might pass muster.

The board appealed from the allowance of summary judgment and the case was docketed in this court in April, 2006. In 2006, the town amended the 2004 version of the LPOD by-law, and the board, immediately thereafter, made an emergency motion to vacate the stayed judgment and requested that the Land Court judge find lawful the 2006 version of the LPOD by-law. The judge did not act on the motion at that time.⁹

c. Stone Ridge's motion to amend judgment. In November, 2006, Stone Ridge filed a motion in the Land Court to amend the judgment, asking the judge to find the 2002 version of the LPOD by-law controlling because the parcel was subject to a continuous zoning freeze as of the date the subdivision plan was first submitted in 2002, pursuant to G.L. c. 40A, § 6.^10,11 As a result of the zoning freeze, Stone Ridge maintained that the parcel was exempt from both the already invalidated 2004 version of the LPOD by-law, as well as the 2006 version of the LPOD by-law. Stone Ridge further requested that the judge invalidate the 2002 version of the LPOD by-law under SCIT, Inc., because the 2002 and 2004 versions were substantively identical.

In response to Stone Ridge's motion, the board did not dispute that the judgment erroneously was based on the 2004 version of the LPOD by-law, and that the 2002 version of the LPOD by-law should have controlled. Nevertheless, the board argued that Stone Ridge's entitlement to a zoning freeze lapsed when the board rescinded its apparent constructive approval of the subdivision plan before the town clerk issued a certificate of constructive approval. Alternatively, the board contended that the proper remedy for the judgment considered under the 2004 version of the LPOD by-law was to remand the case to the board for review of the special permit application under the 2002 version of the LPOD by-law.

In a decision ¹² and amended judgment entered on May 7, 2007, the judge held that Stone Ridge's parcel was subject to an eight-year zoning freeze as of January 9, 2003, the date the judge found that the town constructively approved the subdivision plan, thereby exempting the parcel from the 2004 and 2006 versions of the LPOD by-law. The judge further determined that remanding the case to the board for reconsideration of the special permit application under the 2002 version of the LPOD by-law would be futile because the 2002 version was “virtually identical in language and substance” to the 2004 version of the LPOD by-law, which the judge already had invalidated. The resulting amended judgment required the board to grant Stone Ridge's special permit, but allowed the board to impose reasonable conditions to protect the watercourses contained in the LPOD. Following entry of the amended judgment, the board filed another appeal in this court (Appeals Court docket no. 07-P-982), reiterating on appeal the arguments it advanced in the Land Court.

After the parties filed their briefs, we stayed action on all four appeals until the Supreme Judicial Court decided two cases that concerned, at least in part, the application of a zoning freeze to land that owners sought to subdivide under the subdivision control law. See Kitras v. Zoning Administrator of Aquinnah, 453 Mass. 245, 901 N.E.2d 121 (2009) ( Kitras ); Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517, 903 N.E.2d 576 (2009)....