White v. Diamond Ledge Properties Corp. & Another

• Decision Date: 16 May 2011
• Docket Number: 10-P-1276
• Parties: GARY W. WHITE v. DIAMOND LEDGE PROPERTIES CORPORATION & another.[FN1]
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

GARY W. WHITE

v.DIAMOND LEDGE PROPERTIES CORPORATION & another.¹

10-P-1276

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Entered: May 16, 2011.

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Defendant Diamond Ledge Properties Corp. (Diamond) owns a twenty-two acre parcel of land in Swansea that it intends to develop. In 2008, Diamond sought approval of a final subdivision plan from codefendant planning board of Swansea (planning board). The plaintiff owns abutting land that currently enjoys limited frontage and access. He requested that the planning board require Diamond to extend its proposed access road to his property as a condition of approving Diamond's plan. The board declined to do so, and the plaintiff filed an appeal pursuant to G. L. c. 41, § 81BB. A Land Court judge upheld the planning board's ruling, and the plaintiff now appeals from that judgment and from an order denying his motion to alter and amend the judgment. We affirm.

Background. The plaintiff's parcel abutting Diamond's land was originally part of a larger tract that was virtually land-locked. In 1989, the zoning board of appeals of Swansea granted the plaintiff (or his predecessor in title) a variance to build a single-family home on his land. A variance was needed because the land did not comport with the applicable frontage requirement. In 1993, the zoning board of appeals granted the plaintiff an additional variance that allowed him to build two single-family homes on his property (in contemplation that the land would be subdivided into two parcels, one nineteen and one-half acres in size and the other two acres). In 2000, the planning board approved the subdivision of the land into these two lots, noting that--pursuant to applicable variances--only a single-family home could be built on each.²

The plaintiff now wants Diamond to extend its access road to his nineteen and one-half acre lot in order to make that lot potentially available for more intensive development. In arguing that the planning board has an obligation to impose the condition he desires, the plaintiff relies on section 6.102 of the planning board's rules and regulations. That section states as follows:

'If adjoining property is not subdivided but is, in the opinion of the [p]lanning [b]oard, suitable for ultimate development, provision shall be required for proper projection of streets into such property by continuing appropriate streets within the subdivision to the exterior boundary thereof.'

In its initial decision, the planning board did not address the applicability of this regulation. After the plaintiff filed suit, however, the parties agreed to remand the matter back to the planning board to consider this question. On remand, the planning board determined that the regulation did not apply to the plaintiff's land. The planning board reasoned that, because the land was subject to the previous decisions of the zoning board of appeals and the planning board restricting its use to one single-family home, it was not 'available for future development.' A judge of the Land Court granted the...