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COMMON\VEAL TH OF MASSACHUSETTS THE TRIAL COURT LAND COURT DEPARTMENT

BERKSHIRE, ss. ) ) ) )

MARJORIEM. WYLDE, PAUL MAHER, PATRICIA PATTERSON, RONALD TURBIN, JUDITH TURBIN, DAVID KEISER-CLARK, ERIN KEISER-CLARK, HENRY E. BRATCHER,) JR., Trustee of Cold Spring South Nominee Trust, ) JAMES MACGREGOR BURNS, NICHOLAS H. ) WRIGHT, and JOAN SAFFORD WRIGHT, ) ) ) Plaintiffs, ) v. ) ) ROBIN MALLOY, SARAH GARDNER, ) RICHARD DEMAYO, GEORGE SARROUF, ) JOHN HOLDEN as they are members of the ) TOWN OF WILLIAMSTUWN PLANNING ) BOARD; CI-LA.RLES FOX, and JOAN BURNS, ) ) Defendants. ) ) MARJORIE M. WYLDE, PAUL MAHER, ) PATRICIA PATTERSON, ALAN EVENSON, RONALD TURBIN, JUDITH TURBIN, DAVID ) ) KEISER-CLARK, ERIN KEISER-CLARK, HENRY E. BRATCHER, JR., Trustee of the Cold ) .Spring South Nominee Trust, JAMES ) ) MACGREGOR BURNS, NICHOLAS H. WRIGHT, and JOAN SAFFORD WRIGHT, ) ) ) Plaintiffs, ) v. ) RICHARD DeMAYO, PATRICK DUNLEAVEY, ) GEORGE SARROUF, JOHN HOLDEN, ) CHRISTOPHER WINTERS as they are members ) of the TOWN OF WILLIAMSTOWN PLANNING) BOARD; CHARLES FOX, and JOAN BURNS, ) ) ) Defendants.

CASE NO. 06 MISC. 324035 (KCL)

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CASE NO. 08 MISC. 370547 (KCL)

MEMORANDUM AND ORDER ON THE MOTION OF CHARLES FOX TO OBJECT TO THE PLANNING BOARD'S RESPONSE TO THE LAND COURT'S REMAND Introduction By two written decisions, one in 2006 and the second in 2008, the Williamstown Planning Board approved Mr. Charles Fox and Mrs. Joan Bums' (the "Applicants") definitive plan for a 1O-10tsubdivision (eight buildable lots and two "non-building lot[ s], restricted to future conveyance") off Bee Hill Road in Williamstown.
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The plaintiffs ~ either abutters to the appealed that approval to this

subdivision, owners of property along Bee Hill Road, or both court in the above-captioned cases.r

After a multi-day jury-waived trial, by Decision dated July 10, 2009, this court (Long, J.) affirmed the board on the bulk of the issues presented. by the appeal and dismissed the plaintiffs' challenges on those issues. Decision at 47-48. I noted and ruled., however, that ... the Applicants did not meet the literal requirements of certain rules and regulations and the board failed. to explicitly waive compliance with such sections. [3] Accordingly, these cases are REMANDED to the board. for further findings consistent with this Decision (and, if necessary and deemed appropriate by the board, explicit waivers) for the following issues: (1) the adequacy of Bee Hill Road to provide access between Foxwood Lane and Cold Spring Road, (2) Rules and Regulations §170-4.3.D(1),s requirements regarding overspill height and the slope of basins, (3) §170-4.3.D(2)(a)'s requirements regarding the two-foot separation between the base of basins and the water table and the timeframe for collecting data, (4) §170-4.3.D(2)(b)'s requirement regarding the construction of basins below grade and on fill, and (5) the timing of improvements to Bee Hill Road. Decision at 48 (JuL 10, 2009). The court retained jurisdiction, and final judgment was reserved, until such time as the board's response was received and appropriate proceedings in light of that

The 2006 decision approved the subdivision plan in the form initially submitted. The 2008 decision approved a modification of that plan, allowing the relocation of the subdivision entryway (Foxwood Lane) to a point 150 feet further down Bee Hil1 Road, and the installation of under drains in the subdivision's stormwater detention basins. 2 Case No. 06 MISe. 324035 (KCL) is the plaintiffs' appeal of the board's 2006 decision. Case No. 08 MISC. 370547 (KCL) is the plaintiffs' appeal of the board's 2008 decision. The two were tried together. 3 The Subdivision Rules and Regulations state that the board "shall clearly state its reasons in writing and make it part of its decision" when it waives compliance. Rules and Regulations § 170-5.3 (emphasis added).

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response were conducted. See Wylde, et al. v. Williamstown Planning Bd., et al., Appeals Ct. Case No. 2009-P~1736, Notice of Docket Entry (Oct 29, 2009) (vacating appeal from the Jul. 10, 2009 Decision of this court as premature because final judgment had not entered). After some delay, the board held a series of hearings on the remand issues (Sept. 21, Oct 5 and Nov. 9, 2010) and ultimately issued a written response. Remand response (Nov. 10,2010; approved and signed by the board Dec. 14,2010 and filed with the town clerk December 16, 2010). The response was not a "decision" in the usual sense.4 It simply listed the issues

remanded and responded to them (by formal vote) one by one. Some of the responses were rulings that waivers from the subdivision rules and regulations were required, along with a denial of those waivers. But the response neither addressed nor decided whether the 2006/2008 approvals should be vacated in light of these new rulings. The court's Decision ordering the remand did not specify any time limit for the board's remand deliberations, its response to the remanded issues, or the timing or procedures to be followed in the event of a challenge to that response. In retrospect, this was unfortunate.

Instead, a series of status conferences were scheduled to keep track of progress. Telephone status conf Jun. 21, 2010 (held); telephone status conf. Oct. 4, 2010 (rescheduled); telephone status conf. Oct. 15,2010 (held); telephone status com. Dec. 15,2010 (held). As previously noted, the board's remand response, although dated November 10, 2010, did not receive board approval or signature until December 14, 2010. It was filed with the town clerk on December 16,2010, and a copy was filed with this court on December 21,2010. A copy of the record

Contrast the board's 2006 and 2008 decisions, both of which contained a bottom-line conclusion on the subdivision application: Board decision at 1 (May 16,2006) (the "definitive plan "submitted for the Board's approval by Mr. Charles Fox and Mrs. Joan Bums, applicants, be and hereby is approved."); Board decision at 1 (Jan. 28, 2008) ("modification of the May 16, 2006 defmitive plan of subdivision for Foxwood Lane ... be and hereby is approved by a vote of 4 in favor and 1 against."). Note that these approvals were granted despite the denial ofcertain waiver requests. E.g., Board decision at 7 (May 16, 2006). In these instances, the board ruled that it would endorse the plan once it was resubmitted in compliance with the non-waived regulations. ld.

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before the board on remand was filed with the court on March 9,201 L The court then held a status conference with the parties and ML Fox, through counsel, for the first time stated his intention formally to object to the board's actions. Telephone status conf., Mar. 22, 201 L This was the first occasion on which any party requested the court to take action in light of the remand response. That objection, styled as "Motion of Charles Fox to Object to the Planning Board's Response to the Land Court's Remand" (Mar. 25, 2011), was filed April 7, 2011. The plaintiffs and the board both oppose that motion, contending that the board's remand response is a "decision" subject to the twenty-day appeal period set forth in G.1. c. 41, § 81BB and Mr. Fox's objection, filed later, is therefore time-barred. In the alternative, they contend it

should be barred for laches. For the reasons set forth below, I disagree. Analysis Mr. Fox's motion and the opposition thereto present two questions. First, is the hoard's remand response a "decision" within the meaning of 0.1. c. 41, §81BB and Mr. Fox's challenge thus jurisdictionally barred by his failure to bring it within twenty days of the filing of the response with the town clerk? Second, if not jurisdictionally barred, should the challenge nonetheless be dismissed under the doctrine of laches or otherwise? G.L c. 41, § 81BB provides that "[a]ny person ... aggrieved ... by any decision of a planning board concerning a plan of a subdivision ofland ... may appeal to the superior court for the county in which said land is situated or to the land court; provided, that such appeal is entered within twenty days after such decision has been recorded in the office of the city or town clerk ... ". See also O.L. c. 40A, § 17.5 The courts have interpreted this twenty-day requirement as a jurisdictional prerequisite to the bringing of an appeal. Calnan v. Planning Ed. of Lynn, 63
G.L. c. 40A, § 17 has a similar twenty-day time requirement for appeals from decisions by boards of appeal or special permit granting authorities. The case law interpreting the applicability of that time limit has thus been used interchangeably.

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Mass. App. Ct. 384,389-390 (2005). They have noted, however, that this relates to the institution of an appeal, and that "other steps in carrying out the appeal should be treated on a less rigid basis." Calnan, 63 Mass. App. Ct. at 389. See also Konover Management Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 323-327 (1992). The test, generally speaking, is this: Sloppiness in following a prescribed procedure for appeal is not encouraged or condoned, but at the same time a distinction is taken between serious missteps and relatively innocuous ones. Some errors or omissions are seen on their face to be so repugnant to the procedural scheme, so destructive of its purposes, as to call for dismissal of the appeal. A prime example is attempted institution of an appeal seeking judicial review of an administrative decision after expiration of the period limited by a statute or rule ... With respect to other slips in the procedure for judicial review, the judge is to consider how far they have interfered with the accomplishment of the purposes implicit in the statutory scheme and to what extent the other side can justifiably claim prejudice. After such an assessment, the judge is to decide whether the appeal should go forward without more, or on terms, or fail altogether. This is entirely in keeping with the modem judicial attitude toward procedural issues, which favors decisions on the merits, disfavors decisions on the basis of mere technicalities, and seeks to assist, not hinder, persons who have cognizable legal claims to bring their problems before the courts. Konover Management, 32 Mass. App. Ct. at 323 & n. 8, citing Schulte v. Director of the Div. of Employment Sec., 369 Mass. 74, 79-80 (1975) (emphasis added) esvi Forman v. Davis, 371 U.S. 178, 181-182 (1962). In light of this, and particularly its focus on "institution," clearly the tenn plan approved or See

"decision" means a bottom-line conclusion or resolution by the board disapproved, permit granted or denied also Concise Oxford Dictionary,

and not interlocutory or other types of rulings. University Press, 1999) (defining

io" Ed. at 371 (Oxford

"decision" as "a conclusion or resolution reached after consideration") (emphasis added); American Heritage Dictionary, 2nd College Ed. at 372 (Houghton Mifflin Co., 1991) (defining "decision," inter alia, as "a conclusion or judgment reached or pronounced; verdict"). The board's remand response was thus not a "decision" within the meaning of the statute and its twenty-day bar. The court actions were still pending with judgment awaiting appropriate

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proceedings in light oftheremand

response. The issues remanded were narrow and discrete.

The remand response neither vacated the 2006 and 2008 board decisions (which would have constituted a new decision) nor even addressed the question of whether they should be vacated in light of its new rulings. Rather, it simply filled in gaps in the pending proceedings, ruling on the remand issues one by one. No new decision or denied plan approved or disapproved, permit granted
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was made by the board. This is critical and decisive.

The board's apparent choice not to reach a new decision but rather await the substantive outcome of the court proceedings, on their merits, is not surprising. Over the course of the multiday trial the court had already heard considerable testimony regarding the underlying facts and, even though the remand response denies certain waivers, those denials may not be determinative

Contrast cases where board actions following remand resulted in actual new decisions, e.g Zitzkat v. Zoning Ed. of Appeals of Truro, Mem. & Order Pursuant to Rule 1:28, 2010 WL 2400465, 77 Mass. App. Ct. 1103 (2010), and Volandre v. Bd. of Appeals of the Town a/Norwell, 14 LCR 384,384-385 (2006), and those new decisions thus triggered the twenty-day time bar. In Zitzkat, the case was remanded by the Superior Court for further proceedings pursuant to an order of the Appeals Court, with the superior court retaining jurisdiction, Those "further proceedings" were (1) a new review by the building inspector, resulting in (2) a new decision by the inspector upholding the original grant of the building permit, (3) a new appeal to the zoning board of appeals from the building permit grant, and (4) a new decision by the zoning board affirming the grant of the building permit. See Zitzkat v, Conlon, Barnstable Superior Civil Action No. 05-611, Memorandum of Decision and Order on Defendant Mariellen Serena's Motion for Entry of Final Judgment After Remand at 1 (Jul. 6,2009). It was in that context(a new review and new decisions by the building inspector and zoning board granting the building permit, not just a response to limited questions on subsidiary issues) that the Superior Court, affirmed by the Appeals Court, ruled that the twenty-day appeal period in G.L. c. 40A, § 17 applied, barring an appeal to the superior court after the expiration of that period even though the court had retained jurisdiction, Zitzkat v. Zoning Bd. of Appeals of Truro, Mem. & Order Pursuant to Rule 1:28,2010 WL 2400465, 77 Mass. App. Ct. 1103 (2010). In Volandre, the case was remanded because a special permit (never before obtained) was needed and, thereafter, a special permit was applied for and granted. The twenty-day period of G.L. c. 40A, § 17 applied because there was an entirely new decision after remand (the grant of a special permit, never before granted). As Volandre noted, it was "not a case where a municipal board, which had previously issued a decision denying or approving an application for special permit which was properly appealed initially in the Land Court under G,L. c. 40A, § 17, on remand issued a second, modified decision of which judicial review is now sought. In a case of that type, a party aggrieved by the Board's revised decision on remand, and who is already a party to the initial litigation, is in a better position to argue that filing a complaint within the twenty-day statutory period is not required, It has been the practice of this court in that type of case to direct the parties to seek leave of court to amend the pleadings to assert a right to judicial review of the revised decision and to file with the Town Clerk written notice of having filed the motion to amend, accompanied by true copies of the moving papers, all within the short time frame required under G,L. c. 40A, §17." 14 LCR at 385, n. 4 (emphasis added). As previously noted, no such order was entered in this case - the court instead relying on periodic status conferences and orders to be issued in light of matters as they developed.

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of the outcome of the case. They may prove unimportant ti.e. easily addressed with minor modifications to the plan) 7 or invalid because based on arbitrary and capricious judgments.
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Even if dismissal is not mandatory pursuant to G.L. c. 41, § 81BB, the question remains whether Mr. Fox's motion is nonetheless untimely for laches or other reasons. On the facts of this case, I find that it is not. Mr. Fox certainly delayed in asserting his objection for quite some time." But I discern no material, justifiable prejudice to the board or the plaintiff from this delay. Had time truly been an issue for them, surely they would have been the ones filing a motion for action by the court after remand. As noted above, it was Mr. Fox who filed the motion .. Given all that has occurred in this case a multi-day trial, a detailed Decision and

findings by this court, the remand of discrete issues, and the need for only limited and focused additional testimony to supplement the record discretion should be exercised to allow this

case to be decided on its merits. See Konover Management, 32 Mass. App. Ct. at 323 & n. 8. See also G.L. c. 231, §51 (permitting court, at anytime, to allow "any ... amendment in matter of form or substance in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the cause or for recovery for the injury for which the action was intended to be brought, or enable the defendant to make a legal defense. Any amendment allowed pursuant to this section or pursuant to the Massachusetts Rules of Civil Procedure shall relate to the original pleading. ").

See n. 4. The ruling denying a waiver for the Foxwood Lane/Cold Spring Road section of Bee Hill Road seems especially curious given the board's earlier rulings and approval and the relatively minor use of that section (a maximum of six to nine vehicle trips during peak hours, see Decision at 26-27) that would result from the subdivision. The validity of that waiver denial will be determined by a complete review of the facts, both those presented at the earlier trial and the additional facts admitted in connection with further proceedings in this matter. 9 Indeed, far beyond the time his attorney advised him. See Aft: of Charles Fox at 2 (Mar, 24, 2011).

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Conclusion Mr. Fox is ALLOWED to object to the board's remand response. To do so, however, he must amend his pleadings to assert the precise basis for that objection and must do so by no later than thirty days from the date of this order. The board and the plaintiffs then have twenty days thereafter to file their substantive response to that amended pleading. A status conference shall then be held to plan and schedule further evidentiary proceedings so that this case can fully be addressed and brought to conclusion and final judgment,

Deborah J. Patterson, Recorder Dated: 14 June 2012

ArrEST:

ATRUECOPY

-:D.kOh.o.~:S-:?(f&J:t~~
RECORDER

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