Capone v. Finnerty

Decision Date10 March 1999
Docket Number962491B
Citation1999 MBAR 064
PartiesDonna Capone et al.1 v. Mark S. Finnerty et al.2
CourtMassachusetts Superior Court

Mass L. Rptr. Cite: 9 Mass. L. Rptr. 647

Venue Superior Court, Worcester, SS

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): BURNES

This is an action by plaintiffs (hereinafter "Capone") under G.L.c. 41, 81BB, to appeal the approval of a definitive subdivision plan off White's Pond Road in Lancaster Massachusetts. Capone alleges, the Lancaster Planning Board violated and/or ignored the Subdivision Control Law as well as its own regulations in approving the subdivision plan. The matter is before the court on a motion for summary judgment pursuant to Mass.R.Civ.P. 56, brought by defendants (hereinafter "Benjamin Builders").3 For the reasons discussed below, Benjamin Builders' motion for summary judgment is ALLOWED.


The undisputed material facts as established by the summary judgment record are as follows. Capone and the other plaintiffs own parcels of land with frontage on White's Pond Road, Lancaster, Massachusetts. Benjamin Builders became the record owner of a ten acre parcel of property located on White's Pond Road (the "Property"), on July 1, 1996. Soon thereafter, in September 1996, Benjamin Builders submitted a subdivision plan (the "Plan") to the defendants, Planning Board of the Town of Lancaster (the "Planning Board"). The Plan called for the Property to be subdivided into five single family house lots. In accordance with provisions of the Massachusetts Subdivision Control Law (G.L.c. 41, 81K-81GG), as well as Lancaster's Rules and Regulations Governing the Subdivision of Land (the "Rules and Regulations"), the Planning Board held public hearings on August 5, 1996, October 7, 1996, and October 21, 1996, after which it voted to approve the Plan. A Certificate of Approval of the Plan was subsequently filed with the Lancaster Town Clerk's Office on October 30, 1996.

Pursuant to G.L.c. 41, 81BB, Capone commenced this action to appeal the Planning Board's approval of the Plan. Benjamin Builders has moved for summary judgment. Based on the evidence submitted by both parties, and the representations of counsel at the hearing on this motion, the court makes the following determinations accepting what the plaintiffs say is true.


This court grants summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commissioner of Correction, 390 Mass 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). "The evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (quoted with approval in G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 263 (1991)). The moving party bears the burden of affirmatively demonstrating the absence of triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law. See Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the nonmoving party's case or by demonstrating that the nonmoving party has no reasonable expectation of proving an essential element of his case at trial. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991).

Capone argues that the Planning Board violated several provisions of the Subdivision Control Law and the Rules and Regulations when it voted its approval of the Plan. The crux of Capone's argument is that White's Pond Road provides the only access to the proposed subdivision, and this road is a private way over which Benjamin Builders lacks the right of ingress and egress. Specifically, Capone asserts that if Benjamin Builders "cannot use the road to enter the property, the subdivision has no access and certainly not meaningful access an issue of critical importance to the planning board." Capone suggests it is the burden of the subdivision plan proponent, i.e. Benjamin Builders, to prove to the Planning Board, as part of the subdivision plan approval process, that the subdivision will have access to either a public way or that the proponent has rights in an adjoining private way. Because Benjamin Builders did not demonstrate to the Planning Board that it had such access over White's Pond Road, Capone claims it was a violation of the Subdivision Control Law and the Rules and Regulations, for the Planning Board to approve the Plan. Benjamin Builders dispute Capone's claim to ownership of White's Pond Road, and further argues that any ownership disputes fall outside the concern of the Planning Board. The preliminary issue before this court is whether the Planning Board had jurisdiction to consider issues relating to ownership in White's Pond Road.

1. Jurisdiction of a planning board

Benjamin Builders, in its summary judgment motion, sets forth the general rule that a planning board does not have jurisdiction to adjudicate or resolve property disputes between subdivision project proponents and abutting land owners. Capone recognizes this general rule. However, she contends that an exception arises in instances, like here, when a property issue is relevant to approval of a subdivision plan. In these instances, Capone argues, a planning board has the authority to address and resolve the property ownership issue. Consequently, this court must first determine whether or not the Planning Board violated the Subdivision Control Law when it failed to determine whether Benjamin Builders had ownership rights to White's Pond Road.

Town planning boards are governed by the Subdivision Control Law, G.L.c. 41, 81K-81GG, which is "a comprehensive statutory scheme designed for the safety, convenience and welfare of the inhabitants of the cities and towns." Federline v. Planning Bd. of Beverly, 33 Mass.App.Ct. 65, 68 (1992), quoting Costanza & Bertolino, Inc. v. Planning Bd. of N. Reading, 360 Mass. 677, 679 (1971).

It is settled that a principal purpose of the Subdivision Control Law is "to ensure efficient vehicular access to each lot." Gifford v. Planning Board of Nantucket, 376 Mass. 801, 807 (1978) (statutory requirement providing for access to a way, is based on concerns of access by the fire department and other agencies charged with protecting the public peace, safety and welfare, i.e., "access" as the ability to reach the individual lots).

The Subdivision Control Law sets forth several considerations for a planning board to address in making its determination regarding the feasibility of a proposed subdivision plan. See G.L.c. 41, 81M (1994 ed.). In particular, planning boards may "regulat[e] the laying out and construction of ways in subdivisions providing access to the several lots therein..." Id. This section further requires planning boards to consider whether this access is over ways that "will be safe and convenient for travel" with the purpose of "securing safety in the case of fire, flood, panic and other emergencies..." Id. See Meyer v. Planning Bd. of Westport, 29 Mass.App.Ct. 167, 170 (1990) ("subdivision control... compels the construction of ways which, among other things, are safe and convenient for travel and make provision for utilities").

This is not to say a planning board must concern itself solely with matters within the proposed subdivision. A planning board may consider the effect that an adjacent public way may have on the proposed subdivision. See North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432, 437 (1981) ("[f]actors pertaining to safety, accessibility, or the increased traffic on [an adjacent public road]... may be considered where relevant to the requirements of the statute or of local regulations"). Other accessibility concerns, such as road width, and/or suitable grade, and/or adequate construction are properly before the board. See Section 252 of the Rules and Regulations (requiring the Planning Board to consider the surface width, surface type, and grade, when making a determination about the adequacy of access); Rattner v. Planning Bd. of W. Tisbury, 45 Mass.App.Ct. 8, 12 (1998) (planning board has a duty to evaluate the adequacy of certain roads outside the proposed subdivision that are to be used for access to the subdivision). Compare United Reis Homes, Inc. v. Planning Bd. of Natick, 359 Mass. 621, 625 (1971) (planning board is to comply with reasonable conditions recommended by the board of health relating to drainage from adjacent parcels of land); Rounds v. Board of Water & Sewer Comm'rs. of Wilmington, 347 Mass. 40, 46-47 (1964) (consideration of adequacy of water pipes coming from outside the proposed subdivision is not beyond the proper scope of inquiry of the planning board in connection with approval of a subdivision plan). At the same time, there is no indication that a planning board may disapprove a subdivision plan on the sole ground of the inadequacy of an adjoining public way or water supply. See Fairbairn v. Planning Bd. of Barnstable, 5 Mass.App.Ct. 171, 178 (1977), and cases cited; Miles v. Planning Bd. of Millbury, 29 Mass.App.Ct. 951, 953 (1990).

From the statutory language and the foregoing body of case law it is clear that a planning board's concern with access focuses on congestion and safety concerns from potentially dangerous conditions on roadways and land adjacent to a proposed subdivision. See Rattner v. Planning Bd. of W. Tisbury, supra at 11; see also Fairbairn v. Planning Bd. of Barnstable, supra at 179.


To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT