Opinion
No. 15–P–1527.
07-15-2016
TOWN OF LUNENBURG v. O'BRIEN HOMES, INC., & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Town of Lunenburg (town), appeals from the dismissal of its complaint seeking to enjoin the defendants from further clearing and rough grading of land they own and wish to subdivide. Because a genuine issue of material fact existed on the summary judgment record; namely, whether the defendants' activities constituted preparation of subdivision ways in violation of the planning board's (board) regulations, we reverse and remand.
“The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.... An order granting or denying summary judgment will be upheld if the trial judge ruled on undisputed material facts and his ruling was correct as a matter of law.” Locator Services Group, Ltd. v. Treasurer & Receiver Gen., 443 Mass. 837, 845–846 (2005), quoting from Lawrence Sanitary Dist. v. North Andover, 439 Mass. 16, 20–21 (2003). However, “[a] court must deny a motion for summary judgment if, viewing the evidence in the light most favorable to the nonmoving party, there exist genuine issues of material fact.” Ibid., quoting from Golub v. Milpo, Inc., 402 Mass. 397, 400 (1988).
This much is undisputed: The defendants own 189 acres in Lunenburg, which they plan to develop into residential subdivisions. Although they have not received approval for their subdivision plans, they have cleared and rough graded areas that largely correspond to the location of the proposed ways reflected in their subdivision applications.
The town contends that the defendants' site work constitutes preparation of subdivision ways in violation of § 2.2.1 of the board's subdivision rules and regulations, which, in relevant part, provides: “No person shall ... proceed with ... the construction of ways or preparation therefore ... unless and until a[d]efinitive [p]lan of such subdivision has been submitted and approved by the [p]lanning [b]oard.” Although the town acknowledges that the defendants' actions of clearing and rough-grading do not, standing alone, run afoul of § 2.2.1 of the board's regulations, it argues that the undisputed layout of the clearing and rough-grading demonstrates, as a matter of law, that the defendants were engaged in “preparing” the ways without prior subdivision approval. Put another way, the town argues that the layout of the clearing and grading unambiguously demonstrates the defendants' intent to prepare the proposed subdivision's ways. The town further contends that the clearing and rough-grading far exceeded what was necessary to reach the lots for soil testing, further supporting the inference that the defendants' purpose was to prepare the proposed ways.
The defendants dispute the inference the town draws from the layout of the clearing and grading. Specifically, their summary judgment materials (including an affidavit), state that the clearing and grading were undertaken in order to conduct soil testing required throughout the proposed subdivision lots. They concede that the layout of the clearing was not accidental and largely corresponds to the layout of the proposed subdivision ways. They state, however, that their intent was not to prepare the subdivision ways, but rather to (1) preserve as many trees on the land in the event the subdivisions were approved, and (2) avoid costs associated with unnecessary clearing.
In short, the crux of the dispute on summary judgment was the defendants' intent: whether they intended to engage in prohibited preparation of subdivision ways under the guise of soil testing, or whether their clearing was intended to permit soil testing in an efficient and cost-effective way that might incidentally lay the groundwork for future subdivision ways if the subdivision plans were ultimately approved. This disputed question of fact was not amenable to disposition on summary judgment. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991) (“where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate”).
Finally, because it may arise again on remand, we address the defendants' argument that the town's position would result in an impermissible expansion of the board's mandate under the subdivision control law, G.L. c. 41, §§ 81K –81GG. “It is axiomatic that ‘[a] by-law cannot conflict with [a] statute.’ “ Schiffenhaus v. Kline, 79 Mass.App.Ct. 600, 605 (2011), quoting from Planning Bd. of Reading v. Board of Appeals of Reading, 333 Mass. 657, 660 (1956). It is also true that “[a] planning board does not have a roving commission,” Collings v. Planning Bd. of Stow, 79 Mass.App.Ct. 447, 454 (2011), quoting from Sealund Sisters, Inc. v. Planning Bd. of Weymouth, 50 Mass.App.Ct. 346, 351 (2000), and that “we should not read into the [subdivision control law's] general statement of legislative purpose in § 81M any grant of authority outside that clearly and specifically given by the statute .” Daley Const. Co. v. Planning Bd. of Randolph, 340 Mass. 149, 155 (1959). However, the purpose of the subdivision control law, as stated in § 81M, is to protect “the safety, convenience and welfare of the inhabitants of the cities and towns in which it is ... put in effect by regulating the laying out and construction of ways in subdivisions ” (emphasis supplied). G.L. c. 41, § 81M. If, after trial, the court finds that the defendants' clearing and rough grading were—as a matter of fact—intended as preparation for subdivision ways, nothing in the subdivision control law's purpose statement places the defendants' activity outside that permissibly regulated under § 2.2.1. Indeed, § 2.2.1 regulates the “laying out and construction of ways,” which is one of the means by which § 81M explicitly contemplates that the subdivision control law will be used to protect “the safety, convenience and welfare” of the town's inhabitants. Ibid.
For the above reasons, the judgment is reversed and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By and through its planning board.