Kitras v. Zoning Adm'R of Aquinnah, SJC-10223.

Citation453 Mass. 245,901 N.E.2d 121
Decision Date20 February 2009
Docket NumberSJC-10223.
CourtUnited States State Supreme Judicial Court of Massachusetts

Arthur P. Kreiger, Cambridge, for the plaintiffs.

Ronald H. Rappaport, Edgartown, for town of Aquinnah.

Eric W. Wodlinger, Boston, for Martha's Vineyard Commission.

Benjamin Fierro, III, Boston, for Home Builders Association of Massachusetts, Inc., amicus curiae, submitted a brief.



The plaintiffs in this declaratory judgment action are trustees of two real estate trusts that own two parcels of land in the town of Aquinnah (town) on the island of Martha's Vineyard. Pursuant to G.L. c. 40A, § 6, fifth par., and G.L. c. 111, § 127P, they seek to use and enjoy their property in accordance with the local zoning bylaws and health regulations that were in effect at the time they filed preliminary subdivision plans for the land. In addition, the plaintiffs request a declaration that the designations of two "districts of critical planning concern" (DCPCs) by the Martha's Vineyard Commission (commission) pursuant to St.1977, c. 831 (MVC Act), are invalid.4 The town, its zoning administrator, its board of health, and the commission (collectively, the defendants), filed motions for summary judgment as to the relevant claims against them. A judge in the Superior Court allowed the defendants' motions and dismissed the plaintiffs' complaint. The Appeals Court affirmed the judgment,5 but modified it to declare specifically the rights of the parties, namely that the plaintiffs were not entitled to either an eight-year zoning freeze under G.L. c. 40A, § 6, fifth par., or a three-year freeze on board of health regulations under G.L. c. 111, § 127P.6 See Kitras v. Zoning Adm'r of Aquinnah, 70 Mass.App. Ct. 561, 567, 875 N.E.2d 503 (2007). We granted the plaintiffs' application for further appellate review. For the reasons that follow, we now affirm the judgment of the Superior Court allowing the defendants' motions for summary judgment, as modified to declare the rights of the parties.7

1. Background. On March 29, 1999, the town's planning board nominated the entire town as a DCPC. See St.1977, c. 831, § 8. The commission voted on April 22, 1999, to accept this nomination for consideration.8 See id. On June 17, 1999, the commission designated the entire town as a DCPC. See id. On January 26, 2000, the planning board then requested that a town-wide rate of development district be nominated as a DCPC, which would have the effect of regulating the rate at which building permits were issued, thereby slowing development within the town. See id. On February 24, 2000, the commission approved and designated the building cap as a DCPC. See id. The planning board subsequently promulgated implementing regulations, approved by the commission, with respect to these two DCPCs, and the town incorporated these regulations into its zoning bylaws. See id. at § 10. While these designations and related regulations were being approved and adopted, a "moratorium" suspended the town's authority to issue development permits from April 22, 1999, until May 23, 2000, with certain limited exceptions set forth in St.1977, c. 831, § 9.

Nonetheless, on June 29, 1999, the plaintiffs submitted preliminary subdivision plans to the planning board and the local board of health by hand delivering the plans to the town clerk pursuant to G.L. c. 41, § 81S. On June 30, 1999, the town approved changes to its zoning bylaws, including a restriction on building heights and an expansion of frontage requirements. On January 28, 2000, the plaintiffs submitted definitive subdivision plans to the planning board and the board of health in the same manner as they had submitted their preliminary plans.

On June 5, 2000, after the moratorium had expired, the plaintiffs sent letters (one for each real estate trust) to the town clerk requesting the issuance of certificates of constructive approval pursuant to G.L. c. 41, § 81V,9 stating that the planning board had failed to act in a timely manner on the plaintiffs' definitive subdivision plans, and, therefore, these plans were to be deemed approved. Citing the planning board's inability to approve subdivision plans during the moratorium, the town clerk issued identical letters denying the plaintiffs' requests for certificates.

On August 10, 2000, the planning board held a hearing on the plaintiffs' preliminary subdivision plans. The planning board denied the plans on the grounds that the plaintiffs were not present at the hearing, and that frontage and access requirements with respect to one of the parcels of land were inadequate.

On May 8, 2001, the plaintiffs again requested in writing that the town clerk issue certificates of constructive approval of their definitive subdivision plans. On May 25, 2001, the town clerk denied the requests, stating that the planning board had acted on, and had denied, the subdivision plans on August 10, 2000. In doing so, the town clerk mistakenly referred to the action taken by the planning board on the plaintiffs' preliminary subdivision plans. The planning board never acted on the definitive subdivision plans filed by the plaintiffs on January 28, 2000.

On August 23, 2002, the plaintiffs filed in the Superior Court a petition for a writ of mandamus to compel the town clerk to issue certificates pursuant to G.L. c. 41, § 81V, documenting constructive approval of their definitive subdivision plans. See G.L. c. 249, § 5. A judge granted the plaintiffs' petition, concluding that the definitive subdivision plans were constructively approved as a result of the town's inaction following the expiration of the moratorium on May 23, 2000.10 On appeal from the allowance of the mandamus action, a panel of the Appeals Court in an unpublished memorandum and order pursuant to its rule 1:28 reversed the Superior Court judgment, concluding that the plaintiffs' fifteen-month delay in bringing their mandamus action was unreasonable.11 See Kitras v. Town Clerk of Aquinnah, 61 Mass. App.Ct. 1121, 813 N.E.2d 584 (2004). The plaintiffs remained without any certificates documenting constructive approval of their definitive subdivision plans.

In the meantime, on July 29, 2002, the plaintiffs filed a separate complaint in the Land Court in which they sought, among other things, a declaratory judgment that, due to inaction by the planning board, their definitive subdivision plans had been constructively approved, and the parcels of land at issue were entitled to the benefit of a zoning freeze pursuant to G.L. c. 40A, § 6, fifth par.,12 commencing on the date their preliminary subdivision plans were submitted, even in the absence of certificates from the town clerk pursuant to G.L. c. 41, § 81V. The plaintiffs also sought a judgment declaring that the commission's designations of the DCPCs were invalid because the DCPCs served no regional purpose in protecting the island of Martha's Vineyard.13 On January 26, 2004, the Land Court action was transferred to the Superior Court pursuant to G.L. c. 211B, § 9.

In allowing the defendants' motions for summary judgment,14 the judge stated that constructive approval of the plaintiffs' subdivision plans was not sufficient to trigger a freeze of the town's zoning bylaws as of June 29, 1999, absent corresponding certificates from the town clerk. Further, the judge continued, it was undisputed that the plaintiffs never obtained, nor could they obtain, such certificates given the resolution of their mandamus action. With respect to the DCPCs, the judge concluded that the plaintiffs were not entitled to declaratory relief because their action was untimely and they had failed to satisfy their heavy burden of proving that the DCPCs were invalid under the MVC Act.

2. Standard of review. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 358, 676 N.E.2d 815 (1997). See Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue. See Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989). Any doubts as to the existence of a genuine issue of material fact are to be resolved against the party moving for summary judgment. See Attorney Gen. v. Bailey, 386 Mass. 367, 371, 436 N.E.2d 139, cert. denied, 459 U.S. 970, 103 S.Ct. 301, 74 L.Ed.2d 282 (1982).

3. Zoning freeze. The plaintiffs first contend that, pursuant to G.L. c. 40A, § 6, fifth par., it is the final approval of definitive subdivision plans, rather than the endorsement of such approval, that triggers the eight-year zoning freeze for the land shown on such plans. We disagree with the plaintiffs' view as to when and how this zoning freeze becomes effective.

Preliminarily, before analyzing the particulars of subdivision plan approval, we point out that the Zoning Act, G.L. c. 40A, and the subdivision control law, G.L. c. 41, §§ 81K-81GG, share a similar purpose, which is "to regulate the use of land to ensure the safety, convenience, and welfare of the inhabitants of municipalities." McElderry v. Planning Bd. of Nantucket, 431 Mass. 722, 726, 729 N.E.2d 1090 (2000). As is relevant here, G.L. c. 40A, § 6 fifth par., relieves a developer who has submitted a subdivision plan to a local planning board from compliance with future changes to zoning bylaws by (1) freezing the applicable bylaws governing the land shown on the subdivision plan as of the time when the plan is first submitted to the planning board and while the plan is being processed under the subdivision control law (the...

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