Murphy v. Planning Board

874 N.E.2d 455, 70 Mass. App. Ct. 385, 2007 Mass. App. LEXIS 1052
CourtMassachusetts Appeals Court
DecidedOctober 4, 2007
DocketNo. 06-P-1019
StatusPublished
Cited by6 cases

This text of 874 N.E.2d 455 (Murphy v. Planning Board) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murphy v. Planning Board, 874 N.E.2d 455, 70 Mass. App. Ct. 385, 2007 Mass. App. LEXIS 1052 (Mass. Ct. App. 2007).

Opinion

Lenk, J.

The plaintiff, Francis N. Murphy, Jr., owns an undeveloped 3.77-acre parcel of land in the town of Hopkin-ton (town), which he purchased out of foreclosure in 1997 for $25,000. The parcel, also known as lot 25, remains undeveloped, [386]*386apparently because there is no means of access to it. While the parcel has frontage on two streets, Ash Street and Penny Meadow Lane, there are problems with each as a means of access to Murphy’s parcel. The frontage on Ash Street is bordered by wetlands, and Murphy has not been able to secure the necessary permits for access over those wetlands. Penny Meadow Lane, a private way (also known as lot 20), presents a different problem, one that gives rise to this lawsuit: Murphy’s parcel is subject to restrictions that prohibit any physical access or egress over Penny Meadow Lane.

The restrictions on Murphy’s parcel came into being in 1982, fifteen years before Murphy bought the parcel. His predecessor in title, Mizzen Realty Corp. (Mizzen), submitted an ANR (approval not required) plan to the town’s planning board (board) pursuant to G. L. c. 41, § 8IP. On July 29, 1982, the board endorsed the plan, but did so subject to express conditions noted on the face of the plan:

“Approval not required endorsement is conferred upon this plan of lot 25 with the express conditions that no physical access or egress over lot 20 [Penny Meadow Lane] is allowed and no rights will be transferred granting such access and egress.”

Mizzen and the town, acting through the board, contemporaneously entered into a written agreement (agreement) in which the parties memorialized the aforesaid conditions and provided for the endorsement of the ANR plan.1 Both the ANR plan and the agreement were recorded together the following day. Prior to these events, the zoning board of appeals of Hopkinton had [387]*387granted Mizzen a special permit allowing it to construct a driveway through and adjacent to the wetlands, on lot 25.2 Neither Mizzen nor its successors in title took advantage of this special permit to construct a means of access to lot 25 over the wetlands via the frontage on Ash Street; the special permit has apparently since lapsed. Apart from the instant lawsuit, neither Mizzen nor its successors appealed from the board’s 1982 conditional endorsement of the parcel’s ANR plan or otherwise attempted to set aside the 1982 agreement.

Scrolling forward to 2002, Murphy brought this litigation after five years of being unable to develop his parcel, lot 25. He filed a three-count complaint in the Land Court against the board, asserting claims for both declaratory and equitable relief. He seeks a judgment declaring the restrictions on his parcel to be unenforceable for either of two reasons: (1) the board was without legal authority under the subdivision control law, as set forth in G. L. c. 41, §§ 81K-81GG, to endorse an ANR plan conditionally or to impose conditions on property through a recorded agreement; (2) even if the board had authority to impose such conditions, the restrictions are unenforceable under both G. L. c. 184, §§ 27-32, and the common law. Equitable relief is warranted in any event, Murphy asserts, because the board’s actions constitute a taking of his property. The parties filed cross motions for summary judgment; the judge denied Murphy’s motion and allowed the board’s. Judgment entered, dismissing all three counts of Murphy’s complaint. Murphy appeals, maintaining in essence that the judge erred in ruling that the board had shown itself entitled to judgment as matter of law. We affirm.

[388]*388Analysis. We examine in turn Murphy’s contentions that, contrary to the judge’s ruling, the 1982 restrictions on his parcel are invalid and unenforceable and that he otherwise has suffered a taking of his property.

1. The 1982 restrictions. Murphy asserts two different claims in his quest to invalidate the restrictions on access affecting his parcel. On the one hand, he challenges the board’s legal authority to have imposed conditions on the parcel and to have endorsed an ANR plan conditionally, as it did in 1982. His argument in this regard is in essence that the ANR statute3 confers on the board only limited ministerial authority when it is called upon to endorse an ANR plan. On this view of the statute, the board may only endorse the plan or withhold endorsement; there is no middle ground permitting a conditional endorsement. Murphy contends, on this basis, that the conditions in the ANR plan and the agreement (but not the ANR approval itself, the benefit of which Murphy wishes to retain) must be invalidated. He argues alternatively that, even if the board’s authority to impose conditions is not open to challenge, the conditions imposed are in any event unenforceable because the requirements of G. L. c. 184, §§ 27(a) and 30, have not been met, and the restrictions do not comport with common-law principles governing the creation, validity, and enforcement of servitudes.

a. The board’s authority. Like the motion judge, we do not reach the question whether the board acted without legal authority in 1982, when it endorsed the ANR plan conditionally. We agree with the judge that Murphy’s challenge of the conditions imposed is of necessity a challenge of the ANR endorsement itself and that, as such, it is untimely brought.

General Laws c. 41, § 8IBB,4 provides a twenty-day period during which an interested party may file an appeal of the [389]*389denial of an ANR plan. The subdivision control law does not, however, provide a statutory mechanism for judicial review of an endorsed ANR plan, let alone expressly provide a time period for such appeals. This statutory gap was addressed in Stefanick v. Planning Bd. of Uxbridge, 39 Mass. App. Ct. 418, 424 (1995), where abutters sought to overturn the endorsement of an ANR plan on the grounds that the plan instead required subdivision approval. In those circumstances, we held that a complaint in the nature of certiorari, governed by a sixty-day limitations period, G. L. c. 249, § 4, was the appropriate avenue for review. Certainly, no longer a period would be justified in the circumstances here. As the motion judge observed:

“[Gjiven the undisputed facts in the record, I need not decide the question of what was the appropriate mechanism of review available to Mizzen, or any other interested party, at the time of the Board’s endorsement of the Plan. ... To allow an appeal of a planning board action twenty years after the fact, by a party who was not an interested party at the time of the Board’s action, and who only later became an interested party seventeen years after the Board acted by knowingly purchasing the land directly affected by the Board’s action, would contravene the purpose of the Subdivision Control Law. Rather than allow for indefinite periods of appeal, the Subdivision Control [390]*390Law aims to establish clear procedures and time-frames for appealing planning board action. . . . Parties affected by planning board action under the Subdivision Control Law should be able to rely on those actions that have not been promptly challenged. . . . Here, I cannot reconcile a delay of twenty years with the goals of the Subdivision Control Law.”

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Cite This Page — Counsel Stack

Bluebook (online)
874 N.E.2d 455, 70 Mass. App. Ct. 385, 2007 Mass. App. LEXIS 1052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphy-v-planning-board-massappct-2007.