Others v. Planning Bd. Of Truro
| Decision Date | 29 June 2010 |
| Docket Number | No. 09-P-1156.,09-P-1156. |
| Citation | 77 Mass.App.Ct. 151,928 N.E.2d 987 |
| Parties | Judith A. CZYOSKI & others v.PLANNING BOARD OF TRURO. |
| Court | Appeals Court of Massachusetts |
E. James Veara, for the defendant.
Thomas O. Moriarty & Bruce P. Gilmore, Yarmouthport (Robert Nislick, Braintree, with them), for the plaintiffs.
Present: McHUGH, MILKEY, & HANLON, JJ.
By failing to adhere to statutorily prescribed procedures, the planning board of the town of Truro (the board) constructively approved a definitive subdivision plan for a residential development. The board then sought to undo its error by rescinding the approval. On cross motions for summary judgment, a Land Court judge ruled that the board failed to justify the rescission based on any substantive concerns about the proposed development. He also concluded that the board's desire to undo its procedural error and start the process over was not by itself sufficient to justify the board's action. We affirm the judgment vacating the board's rescission of the constructive approval.
Background. Plaintiffs Judith Czyoski and Andrew Czyoski, as trustee of A & B Realty Trust (collectively, the owners), are property owners in Truro who want to develop their land into a fifteen-lot subdivision. Under the owners' plans, sole access for each of the subdivided lots would be provided through an extension of an existing private way known as Sawyer Grove Road (the road). The owners have permission from the current owner of the road to use it and to extend it on to their property.2 The board approved the construction of the existing portion of the road in 1989 when it approved plans for a seventeen-lot subdivision on land adjacent to the owners' property. The 1989 approval was limited to the subdivision plan then before the board, and the parties here agree that any expanded use of the road required additional approval. As developed further infra, the parties disagree on whether the 1989 approval affirmatively intended to prohibit further expansion of the road or instead intended to table that issue for future consideration.3
The owners filed a definitive subdivision plan on June 13, 2005, and revised it later that month. To bolster their application, the owners commissioned a sixty-two-page traffic study, which assessed conditions in the area in July of 2005. That study concluded that construction of the new development would not raise any significant traffic concerns.4 Transportation staff at the Cape Cod Commission reviewed that study and sent a letter to the board endorsing the methodology that the study used, as well as its over-all conclusions. The local police chief and the local fire chief also separately wrote to the board to express their views that the planned development did not raise traffic safety or vehicle access concerns.
After various continuances in the proceedings, the board unanimously voted on February 21, 2006, to deny approval of the plan. It stated two reasons for doing so: (1) “[c]oncern for safety of [vehicles] and pedestrians on Sawyers Grove, [Hughes] & Priest Roads”; and (2) “[l]ack of significant protection of Pilgrim Pond as spelled out in the LCP (Local Comprehensive Plan).” Although the denial did not specify the nature of the board's concerns about Pilgrim Pond, subsequent proceedings reveal that those concerns did not relate to water quality issues, but instead related to the potential of the proposed development to mar existing views from the pond.
The owners appealed the denial to the Superior Court. In that action, they argued that the board already had constructively approved the plan by failing to act on it, in the manner prescribed by G.L. c. 41, § 81U, fifth par., within the requisite ninety-day period. A Superior Court judge agreed and granted summary judgment in favor of the owners. Although the board filed a notice of appeal in Superior Court, the parties filed a stipulation of dismissal of that appeal on or about May 31, 2007. Therefore, whether the plan was constructively approved is no longer at issue.5
Even before the board executed its stipulation of dismissal, it decided, apparently on its own initiative, to consider whether to rescind the constructive approval. It held an initial hearing on that issue on May 22, 2007. Cognizant that the board previously had expressed concerns over traffic, and aware that the membership of the board had significantly changed in the intervening year, the owners sought to be heard on the traffic issues at the hearing. Specifically, the owners offered two witnesses: their traffic expert, who was prepared to present the 2005 study, and the local director of public works, who, according to the owners, was prepared to add his voice to those of the other local officials who believed that the development would not appreciably affect traffic.6 One board member moved to hear such testimony, but the motion was ultimately defeated by a tie vote. After much discussion about the board's options, the board decided to continue the hearing to a later date.7 At the close of the hearing, the board's acting chair stated his view that continuing the hearing would allow the board to take evidence on the traffic safety issues from the owners and from interested members of the public.
On June 12, 2007, board members took a view, and later that day, the board resumed its hearing. The owners again brought their traffic expert to testify, but again the board declined to hear from him.8 In fact, there was virtually no discussion of the merits of any traffic issues. One board member alluded to her recollection that there once had been a traffic accident in the vicinity of Sawyer Grove Road (although the owners contested whether the referenced accident was even in that area).
There was substantial discussion at the June 12 hearing about whether the 1989 approval of Sawyer Grove Road intended to bar further expansion of that road, and, if so, whether that would render the road “unavailable” to serve as access to the new development. That issue was the subject of a legal opinion that town counsel had submitted to the board prior to the hearing. He opined that the board intended through its 1989 vote, to prohibit further expansion of the road, not merely to table that question for future review. However, he further opined that this did not bar the current board from revisiting the issue.
Also at the June 12 hearing, one board member moved to rescind the constructive approval, stating that rescission would allow the board to “just start back at the beginning.” Town counsel explained that the owners still could resubmit a subdivision plan and that the substantive issues could be fully aired in the ordinary course of review of that plan. The acting chair of the board expressed his view that the proposed development raised substantive issues that “need to be reviewed and testimony taken in an atmosphere which is absolutely neutral” and that the board had “an obligation to the town to go back to square one.” He then called the motion for rescission, which passed by a unanimous vote. In its written decision, the board cited the following four grounds for its action:
The owners appealed from the board's decision to the Land Court pursuant to G.L. c. 41, § 81BB, and the parties cross-moved for summary judgment. To support their claims that no traffic or other concerns existed, the owners submitted in support of their motion four affidavits, including one from its traffic expert. In defense of its rescission decision, the board principally relied on a counterintuitive procedural argument that it since has abandoned.10 Regarding the merits, even though the board concurred that the case appropriately could be resolved on summary judgment, the board did not counter the owners' affidavits, nor otherwise seek to document any substantive concerns about the impact of the proposed development. The Land Court judge granted summary judgment in favor of the owners after concluding that none of the grounds provided by the board supported its decision to rescind the constructive approval.
Discussion. The subdivision control law establishes “an orderly procedure for definitive action within stated times.” Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 125, 202 N.E.2d 409 (1964). It sets forth strict rules that planning boards must follow lest their inaction result in subdivision plans being constructively approved. These rules are somewhat unforgiving to unwary board members. For example, to avoid constructive approval of a definitive subdivision plan, a planning board must file with the city or town clerk a certificate of the action that it has taken on that plan within ninety days after the plan has been filed, or by an extended date requested by the applicant. G.L. c. 41, § 81U, fourth and fifth pars. The fact that an applicant is willing to extend the ninety-day period is not by itself sufficient to prevent a constructive approval; rather, the board must file notice of the extension with the clerk before the period has expired. Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517, 525-527, 903 N.E.2d 576 (2009).
A separate provision of the subdivision control law allows planning boards to “modify, amend or rescind” their approvals. G.L. c. 41, § 81W, inserted by St.1953, c. 674, § 7. Courts long have recognized that planning boards may apply this provision to...
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...any affidavits to that effect to the Land Court after the defendants moved for summary judgment. See generally Czyoski v. Planning Bd. of Truro, 77 Mass. App. Ct. 151, 157 (2010) (obligation of party opposing summary judgment to come forward with affidavits). Under these circumstances, the ......