Babcock v. Planning Bd. of Monson, 14-P-1021

• Decision Date: 16 September 2015
• Docket Number: 14-P-1021
• Parties: JAMES BABCOCK & another v. PLANNING BOARD OF MONSON & another.
• Court: Appeals Court of Massachusetts

JAMES BABCOCK & another¹ v. PLANNING BOARD OF MONSON & another.²

14-P-1021

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

September 16, 2015

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, James Babcock and Donald R. Derby, appeal from a Land Court judgment in favor of the defendants, the planning board (board) of the town of Monson (town) and the town.³ The board denied the plaintiffs' application for a special permit to construct a common driveway, which the plaintiffs claim has rendered their lots inaccessible and unsuitable for residential development. On appeal, they argue that certain provisions of the town's zoning by-law (by-law), which control the construction of driveways and require lot owners to agree to share maintenance expenses, are invalid asapplied to them. See G. L. c. 240, § 14A. They also claim they are entitled to construct single-family homes on their lots as a matter of right. We affirm.

Background. We briefly summarize the relevant facts. Each of the two plaintiffs owns a lot of land (described in the record as lot 7 and lot 8) in the town. The plaintiffs wished to connect their lots with Hovey Road, the nearest public way. Each lot has approximately fifty feet of frontage on Hovey Road, but the plaintiffs claimed that they could not build driveways across the frontage because doing so would require crossing protected wetlands. Other than that frontage, the only access from Hovey Road to lots 7 and 8 is over a gravel easement running across an adjacent lot, lot 9. Lot 9 is owned by Cheryl A. Pereira, who is not a party to this suit.

Owners who wish to construct a common driveway in the town, as the plaintiffs do here, must first comply with § 6.21.3(2) of the by-law, which states:

"Any deeds of ownership of lots served by a common driveway shall require that the owners of said lots must be members of a maintenance association, whose purpose is to provide for maintenance of the common driveway . . . . An association agreement or covenant shall be submitted with the Special Permit application guaranteeing the continuing maintenance expenses. Such agreement shall be subject to the review and approval of Town Counsel and the Planning Board as part of the Special Permit, and shall be recorded in the Hampden County Registry of Deeds."

The plaintiffs filed their application for a special permit with the board, and included a proposed covenant for the maintenance of the common driveway. However, Pereira, the owner of lot 9, refused to sign the covenant.⁴ Thus, after a hearing, the board denied the requested special permit because all three owners who were to be served by the driveway did not agree to the covenant as required under the by-law. The plaintiffs appealed to the Land Court, see G. L. c. 40A, § 17, and a judgment in favor of the board entered in that court. The plaintiffs appeal.⁵

Discussion. On appeal, the plaintiffs claim that summary judgment should not have entered on the question of whether § 6.21.3(2) of the by-law is invalid as applied to them. They argue the evidence in the summary judgment record was sufficient to permit a rational trier of fact to conclude that lots 7 and 8 had been rendered inaccessible by the board's adverse decision. We disagree. The plaintiffs have not shown how the faciallyvalid by-law "amount[s] to an arbitrary, unreasonable, and oppressive deprivation of the owner's interest in his private property," Barney & Carey Co. v. Milton, 324 Mass. 440, 445 (1949), nor have they shown how its application here is in any way inconsistent with its articulated purposes. See Amberwood Dev. Corp. v. Board of Appeals of Boxford, 65 Mass. App. Ct. 205, 209 (2005). The evidence in the record consisted only of one affidavit (which was partially struck by the judge),⁶ an unauthenticated copy of a 1994 site plan showing that as of that date wetlands existed across the frontage of lots 7 and 8, and a copy of a 1994 decision by the town's conservation commission denying a permit to lot 7 to build across these wetlands. "No rational jury could find in the plaintiffs' favor on that issue based on the proffered evidence." Glidden v. Maglio, 430 Mass. 694, 698 (2000).

The plaintiffs have also failed to proffer sufficient evidence to support their remaining claims. Again, we agree with the judge, who found that the record does not show that lots 7 and 8 meet the criteria to be designated "estate lots"under § 6.5 of the by-law, or...