Ridgeley Mgmt. Corp. v. Planning Bd. of Gosnold

• Decision Date: 21 November 2012
• Docket Number: No. 11–P–936.,11–P–936.
• Citation: 978 N.E.2d 799,82 Mass.App.Ct. 793
• Parties: RIDGELEY MANAGEMENT CORPORATION v. PLANNING BOARD OF GOSNOLD & others (and a companion case ).
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 793

978 N.E.2d 799

RIDGELEY MANAGEMENT CORPORATION ¹

v.PLANNING BOARD OF GOSNOLD & others ² (and a companion case ³).

No. 11–P–936.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 9, 2012.

Decided Nov. 21, 2012.

Sander A. Rikleen (John J. Griffin, Jr., with him), Boston, for the plaintiff.

Daniel C. Perry, New Bedford, for the defendants.

Present: SIKORA, CARHART, & SULLIVAN, JJ.

SIKORA, J.

The Elizabeth Islands extend in a chain southwesterly from the heel of Cape Cod toward Rhode Island Sound. They separate Buzzards Bay on the west from Vineyard Sound on the east. The nine islands are sparsely settled. The entire small archipelago constitutes a single municipality: the town of Gosnold (town or Gosnold). Our case presents a subdivision dispute on the most populous member of the chain, Cuttyhunk Island.

Background. 1. Facts. The allegations, answers, and incorporated documents of the parties' Land Court pleadings establish the following undisputed facts. The plaintiff, Ridgeley Management Corporation (Ridgeley), is a general partner of Ridgeley Farm Limited Partnership (partnership). The partnership owns the Cuttyhunk Island tract known as Ridgeley Farm situated within a residential zoning district.

On May 22, 2000, the annual town meeting of Gosnold voted to authorize the board of selectmen (selectmen) to act as a planning board. The planning board did not adopt subdivision rules and regulations until November 13, 2009. Before the authorization of May 22, 2000, the selectmen had entertained occasional subdivision plans and endorsed them as “approval not required.” ⁴ That practice continued through the nine-year interim between the authorization of May of 2000, and the promulgation of subdivision rules and regulations in November of 2009.⁵

Meanwhile, on May 12, 2008, Ridgeley submitted to the “Selectmen acting as the Planning Board” a preliminary plan for the subdivision of the Ridgeley Farm land into six lots served by two existing, unimproved roadways. As required by law, Ridgeley submitted the preliminary plan also to the town clerk and to the selectmen in their additional capacity as the board of health. One week later, on May 19, the annual town meeting amended the zoning by-law to include minimum lot sizes and frontage requirements. On July 7, 2008, the planning board approved Ridgeley's preliminary plan.

On December 3, 2008, Ridgeley submitted its definitive subdivision plan to the planning board. On February 9, 2009, the selectmen, acting as the board of health, adopted regulations to protect groundwater resources from hazardous material discharges. The additional regulations heightened the safety requirements for newly constructed fuel storage tanks and related piping.

Also on February 9, 2009, the planning board returned the definitive plan to Ridgeley without action. By cover letter, it explained that it lacked authority to act on the plan because it never had adopted rules and regulations for implementation of the subdivision control process, as required by statute. It advised that Ridgeley could resubmit the plan for approval after the adoption of rules and regulations.

It is undisputed that on November 13, 2009, the planning board adopted a detailed scheme of subdivision control regulations occupying fifteen single-spaced pages. They prescribed the procedure for subdivision application; reserved authority to impose design standards for roads, easements, storm water management, water supply and sewage disposal, open space preservation, recreational areas, and the protection of natural landscape features; and reserved authority for the planning board to require improvements from a developer, including adequate access by public and private ways, road quality, water supply, sewage disposal, storm water management, sidewalks, lighting, and road signage.

2. Litigation. On February 26, 2009, shortly after the return of its definitive plan, Ridgeley brought suit in the Land Court against the planning board, the board of health, and the town, upon three grounds: (1) a claim for annulment or “such other decree as justice and equity may require” authorized by G.L. c. 41, § 81BB, as appearing in St.1957, c. 199, § 2, to parties aggrieved by a planning board's treatment of a subdivision plan, upon the allegation that the planning board's use of its own failure to adopt subdivision control regulations constituted arbitrary and inequitable abuse of Ridgeley's right to consideration of its plan; (2) a claim for declaratory judgment pursuant to G.L. c. 240, § 14A, and G.L. c. 231A, to the effect that (a) its plan was entitled to the zoning standards in force at the time of the submission of its preliminary plan, in accordance with G.L. c. 40A, § 6 (the so-called “zoning process freeze”); and (b) its plan was entitled to the status of the board of health regulations in force on the same date, in accordance with G.L. c. 111, § 127P (the so-called “health regulations freeze”); and (3) a claim for an order of mandamus pursuant to G.L. c. 249, § 5, compelling the planning board to adopt subdivision control rules and regulations and to complete the consideration of its definitive plan by approval “in the form as filed.”

While the first action was pending, Ridgeley brought a second complaint in Land Court for an order of mandamus to compel the town clerk to issue a certificate of approval of the definitive plan. The theory of the action was that the planning board had failed to act upon the definitive plan for more than ninety days after its submission so as to entitle the plan to constructive approval pursuant to G.L. c. 41, § 81U, and Ridgeley to a conforming certificate pursuant to G.L. c. 41, § 81V.

In the first action, the defendants answered the complaint and moved for judgment on the pleadings under Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974). Ridgeley opposed.⁶ After a hearing, a judge of the Land Court concluded that the statute authorizing local acceptance of subdivision control, G.L. c. 41, § 81N, required both the establishment of a planning board and the planning board's adoption of rules and regulations. The failure of the planning board to accomplish the second requirement left the town short of adoption of the subdivision control law and the planning board without authority to consider subdivision plans. The judge dismissed Ridgeley's complaint. Shortly afterwardhe granted the town clerk's motion pursuant to Mass.R.Civ.P. 12(b)(6) to dismiss the separate mandamus action upon the ground of issue preclusion, i.e., that the absence of the planning board's authority to consider Ridgeley's subdivision plan necessarily eliminated any consequent duty of the town clerk to issue a certificate of approval of it. This appeal of the two judgments followed.

Analysis. On appeal, Ridgeley renews its arguments that Gosnold effectively accepted a system of subdivision control law by creation of the planning board in 2000; and that its definitive plan is entitled to consideration with the benefit of the statutory freezes of zoning standards and the board of health regulations as of the time of submission of the preliminary plan, even though the planning board otherwise may apply the subdivision control rules and regulations adopted in November of 2009. Ridgeley contends also that the town should not benefit from an inequitable failure to implement the subdivision control law and from the resulting retroactive imposition of more demanding zoning and health requirements.

1. Standard of review. “A defendant's rule 12(c) motion is actually a motion to dismiss ... that argues that the complaint fails to state a claim upon which relief can be granted.” Jarosz v. Palmer, 436 Mass. 526, 529, 766 N.E.2d 482 (2002) (citation and quotation marks omitted). As with the allowance of a motion under rule 12(b)(6), we review the ruling de novo. See Harhen v. Brown, 431 Mass. 838, 845, 730 N.E.2d 859 (2000); Housman v. LBM Financial, LLC, 80 Mass.App.Ct. 213, 216, 952 N.E.2d 418 (2011). We draw our facts from the well pleaded allegations of the complaint and the admissions or failures of denial presented by the answer. See Mass.R.Civ.P. 8(a), (b), (d), as amended, 430 Mass. 1601 (1999). Those sources have provided the body of recounted undisputed facts. The appellate issues are questions of law.

2. Effective adoption of subdivision control law.General Laws c. 41, § 81N, governs the adoption of subdivision control law by a municipality. The following language, as amended through St.1959, c. 144, is pertinent to our case.

“[T]he subdivision control law shall be in effect in ... every town ... which ... establishes a planning board.... The subdivision control law, however, shall not become effective in any city or town ... until the planning board of such city or town shall have notified the register of deeds and the recorder of the land court ... that the planning board has adopted its rules and regulations as provided section in eighty-one Q and shall have furnished the said register and recorder [with certified copies of the town meeting vote accepting subdivision control law and certified copies of the subdivision control rules and regulations].”

Upon the basis of the first sentence quoted, Ridgeley contends that the subdivision control law became effective in Gosnold at the time of the town meeting vote of May of 2000. Upon the basis of the second sentence quoted, the defendants set the effective date at the adoption of rules and regulations in November of 2009.

Two methods of interpretation support the later date as the time of effectuation. As a matter of literal analysis, we impute meaning to each substantive provision of a statute. See, e.g., Negron v. Gordon, 373 Mass. 199, 202–206, 366 N.E.2d 241 (1977), and cases cited; Sperounes v. Farese, 449 Mass. 800, 806–807, 873 N.E.2d 239 (2007). In addition, if multiple provisions address the same subject, we should construe them to produce a...