Posted by: Patricia Salkin | January 11, 2013

MA Appeals Court finds Town Could Not Act on Subdivision Since Although it Appointed a Planning Board it had not Finalized its Subdivision Rules

Ridgeley Farm Limited Partnership, in which plaintiff Ridgeley Management Corporation is a general partner, owned the Ridgeley Farm parcel on Cuttyhunk Island, one of a chain of islands off Cape Cod, Massachusetts. Ridgeley Farm was located within a residential zoning district in the Town of Gosnold.

In May 2000, Gosnold had voted to authorize its Board of Selectmen to act as a planning board, but did not adopt subdivision rules and regulations required by state statute until November 2009. Before the Town’s subdivision rules were finalized, in May 2008 Ridgeley submitted plans to subdivide Ridgeley Farm into six lots, which would be served by two existing, unimproved roadways. A week after Ridgeley’s submission, the Town amended its zoning bylaws to include minimum lot sizes and frontage requirements. Then, in July 2008, the Town voted to approve Ridgeley’s preliminary plan.

In December 2008, Ridgeley submitted a definitive subdivision plan to the Town. Two months later, the Board, acting in its capacity as the board of health, adopted groundwater regulations designed to prevent hazardous material discharges, including more stringent requirements for newly constructed fuel storage tanks and associated piping infrastructure. The Town also returned the definitive plan to Ridgeley without action, explaining that it lacked the authority to take action on Ridgeley’s proposal because it had not yet adopted subdivision rules and regulations, as required by state statute. Ridgeley was advised it could resubmit its proposal once subdivision rules were adopted.

At that time, Ridgeley filed suit in the Massachusetts Land Court claiming that the denial of its subdivision plan based upon the Town’s own failure to comply with state law in adopting subdivision rules was arbitrary and an inequitable abuse of Ridgeley’s right to have its subdivision plan considered; requesting a declaratory judgment that its plan was entitled to the Town zoning standards and health regulations in place at the time the preliminary plan was submitted; and asking the court to compel the Town to adopt subdivision rules and consider Ridgeley’s plan. See Ridgeley Management Corp. v. Planning Board of the Town of Gosnold, 2011 WL 579212 (Mass. Land Ct., Dukes County, 2/18/11) [Ridgeley I]. The Town moved for judgment on the pleadings, which Ridgeley opposed. The judge concluded that the Town, in order to comply with state law, needed to establish a planning board and adopt the subdivision rules and regulations. Since the Town had failed to complete both actions before Ridgeley’s application was submitted, the Town Board lacked the authority to consider subdivision plans. Thus, the Town had been correct in refusing to consider the plan, and its decision not to act on Ridgeley’s proposal was upheld by the Land Court.

While the first action was pending, Ridgeley also brought a mandamus action in Massachusetts Land Court seeking to compel the Gosnold Town Clerk to approve Ridgeley’s definitive plan, on the grounds that the Planning Board had failed to take action on the plan within 90 days, as prescribed by law. Under Massachusetts law, such failure amounts to a constructive approval of the plan. See Ridgeley Management Corp. v. Gosnold Town Clerk, 2011 WL 1196483 (Mass. Land Ct., Dukes County, 3/31/11) [Ridgeley II]. However, since the judge in Ridgeley I had concluded that absent both appointment of a planning board and adoption of subdivision rules, the Town lacked both the actual authority to act on Ridgeley’s plan, as well as the ability to constructively approve a plan by failing to act on it. Thus, the Town Clerk could not be compelled to issue an approval of Ridgeley’s plan. The Land Court dismissed Ridgeley’s claim against the Town Clerk as well.

Ridgeley here appeals both decisions in a consolidated action before the Massachusetts Appeals Court. On appeal, Ridgeley again argues that the Town accepted a system of subdivision control by creating a planning board in 2000, and that its plans deserved consideration and action by the Planning Board. Further, Ridgeley renewed its argument that it was entitled to a zoning freeze, insulating its project from compliance with the zoning and health law amendments made after its plan was submitted to the Board. Essentially, Ridgeley based its argument on the notion that the Town should not benefit from its failure to comply with state law in adopting subdivision rules and regulations in a timely manner.

However, the Court disagreed with Ridgeley’s argument that the Town gained the authority to rule on subdivision proposals as soon as it appointed a planning board in 2000. Under Massachusetts law, the court held that both (1) creation of a planning board and (2) the adoption of rules and regulations are required before the Town has a usable subdivision control law. Without a detailed codification of rules and regulations governing subdivisions, and in the absence of common law or statutory standards which could be substituted until the Board adopted its own standards, landowners would have no way of knowing what was required or permitted in a subdivision. Thus, the appellate court agreed with the lower court that the Town had no authority to act on the Ridgeley plan absent adoption of subdivision rules and regulations. The Court also agreed with the Ridgeley II judge’s decision to extend this reasoning in Ridgeley I to require dismissal of the mandamus action against the Town Clerk.

Further, the Court held that any statutory freezes Ridgeley might be entitled to are premised on the existence of a statutory scheme governing subdivisions—since the Town had failed to establish a subdivision regulation scheme prior to Ridgeley’s application, no freeze was possible. Plainly, Ridgeley could not be entitled to a freeze on nonexistent rules.

Turning to equitable considerations raised by Ridgeley, the Court noted that while it did not condone the Town’s delay in complying with state law, it could not find any grounds on which to grant Ridgeley any relief.

Ridgeley Management Corp. v. Planning Board of Gosnold, 2012 WL 5857315, 82 Mass. App. Ct. 793 (Mass. Appeals Court, Suffolk, 11/21/12)

The opinion can be accessed at: http://www.socialaw.com/slip.htm?cid=21756&sid=119

 


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