Massachusetts Broken Stone Co. v. Planning Bd. of Weston

Decision Date16 November 1998
Docket NumberNo. 97-P-2054,97-P-2054
Citation701 N.E.2d 664,45 Mass.App.Ct. 738
PartiesMASSACHUSETTS BROKEN STONE COMPANY v. PLANNING BOARD OF WESTON.
CourtAppeals Court of Massachusetts

Judith C. Cutler, Boston, for defendant.

Franklin C. Huntington, IV, Boston (John J. Griffin, Jr., with him), for plaintiff.

Before ARMSTRONG, PERRETTA and SPINA, JJ.

SPINA, Justice.

Massachusetts Broken Stone Company (Broken Stone) filed an appeal in the Land Court, under G.L. c. 41, § 81BB, from a decision of the planning board of Weston (planning board) disapproving its subdivision plan on grounds that the proposed development might adversely affect ground water, the plan failed to provide certain engineering details, the plan called for on-site sewage disposal systems, and it did not meet conditions in the report of the board of health. A Land Court judge rejected the planning board's reasons for disapproving the plan and granted summary judgment for Broken Stone. He also denied the planning board's motion to dismiss for failure to prosecute. The case is before us on the planning board's appeal from the judgment of the Land Court. We affirm.

Broken Stone is the owner of a seventy-four acre parcel of land in Weston (the site). On April 28, 1989, Broken Stone submitted a preliminary subdivision plan for a five-lot office complex on the site. On June 6, 1989 Broken Stone's preliminary subdivision plan was disapproved by the planning board. Broken Stone submitted a definitive subdivision plan for the site within seven months of the preliminary plan. That plan also was disapproved.

On March 5, 1990, Broken Stone appealed the board's disapproval of its definitive subdivision plan to the Land Court, pursuant to G.L. c. 41, § 81BB. The appeal lay dormant until May 15, 1996, when Broken Stone issued deposition notices to the members of the planning board. On May 17, 1996, 1 the board responded with a motion to dismiss Broken Stone's complaint for lack of prosecution, pursuant to Mass.R.Civ.P. 41(b)(2). 2 On June 3, 1996, Broken Stone moved for summary judgment on grounds that the disapproval of its definitive subdivision plan had no basis in fact or law.

The judge denied the planning board's motion to dismiss Broken Stone's complaint for lack of prosecution. He found that both parties had contributed equally to the delays in this case and that, while both parties had an equal opportunity to move the case forward, neither had done so. The judge noted that Broken Stone's inaction did not preclude the board from seeking closure of the case and that its failure to do so supported denial of the motion to dismiss.

The judge allowed in part Broken Stone's motion for summary judgment, but denied it in part because of unresolved factual issues. The parties then filed a stipulation of facts and cross motions for summary judgment as to the remaining issues. On September 18, 1997, the judge allowed Broken Stone's motion for summary judgment as to the remaining issues, and denied the planning board's cross motion for summary judgment. The planning board brings the present appeal.

1. Motion to dismiss. The planning board first argues that the judge abused his discretion when he failed to dismiss Broken Stone's complaint for lack of prosecution. It asserts that the judge erroneously shifted the burden of moving this case forward to the planning board, and that Broken Stone offered no reasonable grounds for its failure to pursue its appeal in a timely manner. The planning board also asserts that the judge did not give sufficient consideration to the prejudice that it would suffer if its motion to dismiss were denied.

Massachusetts Rule of Civil Procedure 41(b)(2), 365 Mass. 804 (1974), provides, in pertinent part, "On motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute or to comply with these rules or any order of court." Trial on the merits of a plaintiff's claim is strongly favored, and the involuntary dismissal of such a claim should be reserved for those situations where a severe sanction is necessary. Monahan v. Washburn, 400 Mass. 126, 128-129, 507 N.E.2d 1045 (1987). "As a minimal requirement, there must be convincing evidence of unreasonable conduct or delay. A judge should also give sufficient consideration to the prejudice that the movant would incur if the motion were denied, and whether there are more suitable, alternative penalties." Ibid. Only in rare instances will a trial judge deciding a rule 41(b)(2) motion have committed an abuse of discretion which amounts to an error of law. Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641, 488 N.E.2d 1 (1986). Such an abuse of discretion occurs when the judge's decision is arbitrary, capricious, whimsical or idiosyncratic. Ibid. See Hoch v. Gavan, 25 Mass.App.Ct. 550, 552, 520 N.E.2d 1319 (1988); Dewing v. J.B. Driscoll Ins. Agency, 30 Mass.App.Ct. 467, 470-471, 569 N.E.2d 848 (1991).

The planning board's interpretation of the judge's decision as having shifted the burden of prosecuting the action to its shoulders is unjustified. The judge correctly stated the law, including the need to examine the prejudice that might befall the moving party if the action were not dismissed. One indication of actual prejudice is the extent to which the moving party has been pressing for trial. Compare Commonwealth v. Beckett, 373 Mass. 329, 333-334, 366 N.E.2d 1252 (1977). We think that the judge's consideration of the planning board's own failure to advance the action, especially in the absence of any affidavit supporting the existence of actual prejudice, was not a reallocation of any burden, but rather an implicit finding of no prejudice.

A judge may dismiss a case for lack of prosecution when, as here, over six years have elapsed since the commencement of the action and the plaintiff has failed to initiate any form of affirmative prosecutorial activity. See Bucchiere v. New England Tel. & Tel. Co., 396 Mass. at 642, 488 N.E.2d 1. That result, however, is not compelled. We are mindful that the Land Court did not exercise administrative authority under its Standing Order No. 2-88 to schedule a pretrial conference or a trial, and that there was evidence that the planning board and Broken Stone had discussed alternative development strategies, all of which may have contributed to the delay. Broken Stone's "inaction" was deliberate, based on the mistaken belief that, pursuant to G.L. c. 40A, § 6, the pendency of its appeal froze the zoning on the site for subsequent development plans submitted for review before resolution of the appeal. 3 While not a commendable position, neither was it inexcusable. Though this is a close question, we cannot say that the judge abused his discretion by denying the planning board's motion to dismiss.

2. Drainage design. The planning board found that Broken Stone's storm drainage system, which proposed the diversion of run-off "directly into the two quarries and wetlands[,] is not appropriate for reasons as cited in the correspondence from the Cambridge Water Board, the Charles River Watershed, and the Report by Whitman and Howard completed for the Planning Board." Also, the parties stipulated that "the Planning Board's decision ... [was] ... based upon potential negative water quality impacts resulting from the proposed drainage design ... [and] ... was not based upon a determination that the proposed drainage design capacity is inadequate to handle the anticipated quantity of run-off to be generated on the Site."

When reviewing a planning board's disapproval of a definitivesubdivision plan, both the Land Court and the appellate courts are "confined to the reasons for disapproval of the subdivision plan stated by the planning board." Canter v. Planning Bd. of Westborough, 4 Mass.App.Ct. 306, 307, 347 N.E.2d 691 (1976). See Fairbairn v. Planning Bd. of Barnstable, 5 Mass.App.Ct. 171, 173, 360 N.E.2d 668 (1977). The question on appeal is whether the reasons stated by the planning board in rejecting the proposed drainage system, namely, the potential negative impacts on water quality, were within the scope of its authority under its rules and regulations.

Neither section 4.18 nor section 5.9 of the rules and regulations, upon which the planning board relies, pertains to water quality. Rather, together they call for the design of a particular type of drainage system (which Broken Stone failed to use), measured against accepted engineering principles, and having adequate capacity to divert run-off from the site. In view of the parties' stipulation that the board's decision was not based upon those concepts or those particular rules and regulations, they may not be used as a basis to disapprove the subdivision plan. Canter, supra. Fairbairn, supra. The Land Court judge correctly concluded that, where a subdivision's impact on water quality was not a matter for consideration under the rules and regulations of the planning board, such impact could not provide the basis for disapproval of the plan. See Beale v. Planning Bd. of Rockland, 423 Mass. 690, 696, 671 N.E.2d 1233 (1996). Compare Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass. 149, 155, 163 N.E.2d 27 (1959).

3. Street design. The planning board assigns error to the judge's ruling that Broken Stone's failure to provide engineering details for the projection of a dead-end street shown on the definitive plan could not provide a basis for disapproval of the plan.

It is undisputed that no engineering details of the projection were provided. This is so, the judge found, because the projection was never intended to be a street. That is, it was not a planned street. 4 The planning board argues that its rules and regulations make no distinction between streets and projections of streets, and that engineering details are required for both.

The sections of the rules and regulations...

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