Krafchuk v. Planning Bd. of Ipswich

• Decision Date: 07 April 2009
• Docket Number: SJC-10224
• Citation: 903 N.E.2d 576,453 Mass. 517
• Parties: Elizabeth E. KRAFCHUK & another<SMALL><SUP>1</SUP></SMALL> v. PLANNING BOARD OF IPSWICH & others.<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

903 N.E.2d 576

453 Mass. 517

Elizabeth E. KRAFCHUK & another¹ v. PLANNING BOARD OF IPSWICH & others.²

SJC-10224

Supreme Judicial Court of Massachusetts, Essex.

Argued December 1, 2008.

Decided April 7, 2009.

Douglas H. Wilkins, Cambridge, for Edward P. Fagan & another.

James G. Gilbert, Salem, for Elizabeth E. Krafchuk & another.

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

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

IRELAND, J.

In this case we consider issues concerning a definitive subdivision plan of land owned by the defendants, Edward P. Fagan and Anna M. Fagan (Fagans), that was approved by the planning board of Ipswich (board). The plaintiffs, Elizabeth E. Krafchuk and Joseph A. Brear, Jr., each own property abutting the Fagans' parcel of land, which is the subject of the plan. Because we conclude that the plaintiffs had standing to challenge the board's approval of the Fagans' definitive plan, pursuant to G.L. c. 41, § 81BB³; that the Fagans' land continued to be entitled to the protection of the process freeze of the zoning bylaw provided by G.L. c. 40A, § 6, fifth par.,⁴ at the time when, following the board's rescission of constructive approval of the plan, they submitted an amended plan; that the board did not exceed its authority in granting waivers from its rules and regulations pursuant to G.L. c. 41, § 81R⁵; and that the board's approval vote was not valid where board members did not attend the hearings on the plan as required, we vacate the judgment of the Superior Court and remand this matter for further proceedings.

1. Background. The Fagans own a twenty-three and one-half acre parcel of land that has frontage along Heartbreak Road in Ipswich. In October, 2001, the Fagans, pursuant to G.L. c. 41, § 81S,⁶ submitted to the board a preliminary subdivision plan that depicted seven proposed lots, including several lots of approximately one acre in size. The lots were shown on the plan as having frontage along Blue Spruce Drive, a proposed cul-de-sac that would provide access to Heartbreak Road via a T-shaped intersection. Later that month, Ipswich amended its zoning bylaw, increasing the minimum lot size for the district where the Fagans' land is located from one acre to two acres. In March, 2002, the board disapproved the Fagans' preliminary plan.

The Fagans submitted a definitive subdivision plan to the board in May, 2002, fewer than seven months after the submission of their preliminary plan. The board held a public hearing to consider the plan beginning in June, 2002, and continuing throughout the year. The Fagans submitted amended plans in November, 2002, and again in December, 2002. Several board members were not present at all of the sessions when the defendants' application was considered. At a session held in January, 2003, the board, with all members present, voted to disapprove the most recent amendment to the plan, and to grant, pursuant to G.L. c. 41, § 81R, waivers from strict compliance with several of its rules and regulations.

The plaintiffs timely filed an appeal in the Superior Court, pursuant to G.L. c. 41, § 81BB, seeking judicial review of the board's decision to grant waivers to the Fagans. The Fagans did not file their own appeal, but instead asserted to the board that their application had already been constructively approved prior to the board's decision, pursuant to G.L. c. 41, § 81U,⁷ due to the board's failure to take final action or to file with the town clerk either a certificate or notice of an agreed extension, within ninety days after the May, 2002, filing of the definitive plan. The board, which had undergone a change in membership following the January, 2003, hearing, held a hearing in March, 2003, to consider the Fagans' assertion of constructive approval. The hearing was continued to May, 2003, when the board voted to rescind the constructive approval pursuant to G.L. c. 41, § 81W,⁸ and, without hearing any new substantive evidence, to readopt its January, 2003, decision disapproving the definitive plan and granting waivers.⁹

The plaintiffs again filed a G.L. c. 41, § 81BB, appeal in the Superior Court, seeking judicial review of the board's decision to readopt its January, 2003, decision granting waivers. The Fagans separately filed an appeal in the Land Court, pursuant to G.L. c. 41, § 81BB, seeking judicial review of the board's decision to rescind the constructive approval and to readopt the disapproval decision.

In August, 2003, the Fagans submitted a request to the board to revoke the disapproval and to approve their amended plan. The board, after another change in membership, held a public hearing on the Fagans' request beginning in September, 2003 and continuing throughout the year. The Fagans submitted an amended definitive subdivision plan in October, 2003. Not all of the board members were present at all of the sessions during which the Fagans' amended plan was considered.

The board voted on the amended plan at a hearing held in December, 2003. With four of the board's five members voting, the board unanimously rescinded the disapproval and approved the definitive subdivision plan as amended—adopting, in its decision, the twelve waivers that had been granted in the January, 2003, decision.¹⁰ The plaintiffs filed a third appeal in the Superior Court, pursuant to G.L. c. 41, § 81BB, seeking judicial review of the approval.

A bench trial was held on the plaintiffs' three consolidated Superior Court actions. On the threshold jurisdictional issue of standing, the judge ruled that both plaintiffs were persons aggrieved pursuant to G.L. c. 41, § 81BB, and could challenge the board's decisions. Turning to the merits of the plaintiffs' appeals, the judge concluded that the board's act approving the plan was invalid for three reasons. First, the judge ruled that the Fagans' plan had been constructively approved, but that the board's May, 2003, decision rescinding the constructive approval had extinguished the zoning freeze provided by G.L. c. 40A, § 6, fifth par. On that basis, the judge concluded that the two-acre minimum lot size provision of the bylaw, as amended in October, 2001, applied to the Fagans' amended plan that they submitted in October, 2003. The judge ruled that the board's December, 2003, approval of the amended plan was therefore invalid because the one-acre lots depicted on the plan did not conform to the applicable provisions of the bylaw. The judge further concluded that the approval was invalid because the board's decision incorporated two waivers of compliance with the board's subdivision rules and regulations that the judge found to have been erroneously granted. The judge also ruled that the board's December, 2003, decision was not valid where the members of the board who voted to approve the plan had not been present at all of the public hearings when the plan was considered. See Mullin v. Planning Bd. of Brewster, 17 Mass.App.Ct. 139, 456 N.E.2d 780 (1983) (in case of adjudicatory proceedings before planning board, members required to attend hearing to be entitled to vote). Having found that the board acted in excess of its authority, the judge directed entry of a judgment annulling the board's approval decision, remanding the matter to the board, and dismissing the remaining counts. The Fagans appealed.

The Appeals Court affirmed the judgment. See Krafchuk v. Planning Bd. of Ipswich, 70 Mass.App.Ct. 484, 874 N.E.2d 675 (2007). We granted the Fagans' application for further appellate review.¹¹

2. Discussion. a. Standing. Pursuant to G.L. c. 41, § 81BB, only persons who are aggrieved by a planning board's decision concerning a definitive subdivision plan may appeal to the Superior Court or the Land Court. A person aggrieved within the meaning of G.L. c. 41, § 81BB, must assert "a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 27, 849 N.E.2d 197 (2006), quoting Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 493, 540 N.E.2d 182 (1989).¹² The asserted basis for the claim also must be one that the statute intends to protect. See Standerwick v. Zoning Bd. of Appeals of Andover, supra at 27-28, 849 N.E.2d 197. "The injury must be more than speculative ... but the term `person aggrieved' should not be read narrowly" (citations omitted). Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721, 660 N.E.2d 369 (1996).

Abutters entitled to notice of planning board hearings, pursuant to G.L. c. 41, § 81T, enjoy a rebuttable presumption that they are persons aggrieved. See Standerwick v. Zoning Bd. of Appeals of Andover, supra at 33, 849 N.E.2d 197. To rebut the presumption, a party challenging the standing of an abutter "must offer evidence `warranting a finding contrary to the presumed fact.'" Id. at 34, 849 N.E.2d 197, quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 258, 797 N.E.2d 893 (2003). "Once the presumption is rebutted, the burden rests with the plaintiff to prove standing, which requires that the plaintiff `establish—by direct facts and not by speculative personal opinion—that his injury is special and different from the concerns of the rest of the community.'" Standerwick v. Zoning Bd. of Appeals of Andover, supra at 33, 849 N.E.2d 197, quoting Barvenik v. Aldermen of Newton, 33 Mass.App.Ct. 129, 132, 597 N.E.2d 48 (1992). A party challenging a board's decision need not prove by a preponderance of the evidence that his or her claim of particularized injury is true. Butler v. Waltham, 63 Mass.App.Ct. 435, 441, 827 N.E.2d 216 (2005). "Rather, the plaintiff must put forth credible evidence to substantiate his allegations. In this context, standing becomes, then, essentially a question of fact for the trial judge."...