NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-978
PAUL GRIFFITH & others1
vs.
BELLINGHAM ZONING BOARD OF APPEALS & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs appeal from a decision by a judge of the
Land Court dismissing their complaint challenging the Bellingham
Zoning Board of Appeals' issuance of a comprehensive permit
under G. L. c. 40B, §§ 20-23, allowing the defendant to
construct a twenty-eight-unit, single-family home affordable
housing development.3 On appeal, while the plaintiffs have
1Susan M. Flaherty; John J. Flaherty, Jr.; Caroline W. Griffith; Jerry Bruno; Kristin Bruno; Kate S. Parsons; John D. Webb, Jr. Trustee of the Webb Family Trust; Judith T. Webb, Trustee of the Webb Family Trust; Antonio Spinelli; Jacquelyn Spinelli.
2Edward Gately, Trustee of the Hidden Meadow II Realty Trust and the Town of Franklin.
3The Bellingham Zoning Board of Appeals and the Town of Franklin did not file briefs in this appeal. Edward Gately, abandoned their claim regarding the permit under G. L. c. 40A
§ 17, the plaintiffs argue the judge erred in dismissing with
prejudice counts I and II of their complaint, which challenged
the permit under G. L. c. 41, § 81O, § 81W, and G. L. c. 240,
§ 14A.4 We affirm.
Background. We summarize the relevant, undisputed facts.
The defendant owns a 9.6-acre parcel of land in Bellingham and
has obtained a comprehensive permit to build an affordable
housing development pursuant to G. L. c. 40B, §§ 20-23, to be
called Burton Woods ("development"). The development will be
comprised of twenty-eight single-family homes on an undivided
lot with a condominium-style ownership scheme. The development
has no frontage on any private or public way in the town of
Bellingham. Instead, its only means of access is over Sunken
Meadow Road, which is a private way located in a subdivision in
the bordering town of Franklin.5 Two parcels, owned by two sets
of plaintiffs, the Flaherty and Griffith families, abut the
development. These parcels are subject to an easement allowing
trustee of Hidden Meadow II Realty Trust, was the only defendant represented. We refer to the trust as "the defendant."
4 The plaintiffs' second amended complaint, with the assented-to addition of six plaintiffs, is the operative complaint, to which we refer.
5 The Cranberry Meadows subdivision was established with a recorded subdivision plan in 1987.
2 the defendant to use Sunken Meadow Road for access to the
development. The parcels are also currently subject to an
easement for a temporary turnaround, also referred to as a "cul-
de-sac," until such time as Sunken Meadow Road is extended to
the development. The defendant plans to pave an extension from
the cul-de-sac to connect Sunken Meadow Road to the development.
The plaintiffs challenged the permit in the Land Court on
four counts. After a four-day bench trial, which included the
admission of sixty exhibits and the testimony of numerous lay
and expert witnesses, the judge took the matter under
advisement. In a thoughtful and comprehensive decision, the
judge made numerous factual findings and credibility
determinations, ultimately dismissing all four counts of the
plaintiffs' complaint with prejudice. Plaintiffs appeal the
judge's dismissal of counts I and II in their second amended
complaint. We address each argument in turn.
Discussion. 1. Count I. In count I of the complaint, the
plaintiffs sought a declaratory judgment under G. L. c. 231A,
§ 1. They alleged that the proposed extension of Sunken Meadow
Road constitutes a modification of their subdivision plan,
requiring approval by the Franklin Planning Board under G. L.
c. 41, § 81O and § 81W. The plaintiffs also alleged that such a
modification would affect them and therefore requires their
3 consent under § 81W.6 On appeal, they claim that the judge erred
in dismissing count I, especially in light of the fact that, in
his analysis, the judge reasoned that the extension of the road
would require the approval by the Franklin Planning Board. At
issue is the judge's interpretation of G. L. c. 41, § 81O and
§ 81W. We review the interpretation of a statute de novo. See
Commonwealth v. J.F., 491 Mass. 824, 836 (2023).
Section 81O of the subdivision control law provides that,
once a subdivision plan is approved, "the location and width of
ways shown thereon shall not be changed unless the plan is
amended accordingly as provided in section eighty-one W." G. L.
c. 41, § 81O. Section 81W provides that any modification or
amendment of a subdivision plan is subject to the approval of
the planning board. G. L. c. 41, § 81W. Section 81W also
requires the consent of the owners of lots "affected" by a
modification of a subdivision plan. The judge concluded that
the plaintiffs' lots were not "affected" under the meaning of
§ 81W and that the defendant was not required to obtain the
plaintiffs' consent to extend Sunken Meadow Road.
6 The plaintiffs also argued, in the alternative to their G. L. c. 231A, § 1 claim, that G. L. c. 41, § 81Y enabled them to bring a ten taxpayer claim to enforce the Franklin Subdivision Rules and Regulations. The judge held that this claim was not yet ripe, which the plaintiffs conceded was correct at oral argument.
4 In Patelle v. Planning Bd. of Woburn, we held that only
plan modifications that impair the marketability of lot owners'
titles required their consent under § 81W. See 20 Mass. App.
Ct. 279, 282 (1985). "Examples would be modifications which
altered the shape or area of lots, denied access, impeded
drainage, imposed easements, or encumbered in any manner and
extent of use of which the lot was capable when sold." Id.
Marketability of title is a term of art that "relates to defects
affecting legally recognized rights and incidents of ownership"
and is distinct from economic marketability. See Somerset Sav.
Bank v. Chicago Title Ins. Co., 420 Mass. 422, 428 (1995).
Changes to a subdivision plan that affect economic marketability
alone i.e., "indirect effects," do not require the consent of
subdivision lot owners. See Patelle, supra at 282, 284.
Here, the lots owned by the Flahertys and Griffiths are
already subject to the easement to extend Sunken Meadow Road to
the Bellingham town line. They are also subject to the easement
for the temporary turnaround or cul-de-sac, which will cease to
exist when Sunken Meadow Road is extended. The plaintiffs argue
that the Flahertys and Griffiths are "affected" for purposes of
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-978
PAUL GRIFFITH & others1
vs.
BELLINGHAM ZONING BOARD OF APPEALS & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs appeal from a decision by a judge of the
Land Court dismissing their complaint challenging the Bellingham
Zoning Board of Appeals' issuance of a comprehensive permit
under G. L. c. 40B, §§ 20-23, allowing the defendant to
construct a twenty-eight-unit, single-family home affordable
housing development.3 On appeal, while the plaintiffs have
1Susan M. Flaherty; John J. Flaherty, Jr.; Caroline W. Griffith; Jerry Bruno; Kristin Bruno; Kate S. Parsons; John D. Webb, Jr. Trustee of the Webb Family Trust; Judith T. Webb, Trustee of the Webb Family Trust; Antonio Spinelli; Jacquelyn Spinelli.
2Edward Gately, Trustee of the Hidden Meadow II Realty Trust and the Town of Franklin.
3The Bellingham Zoning Board of Appeals and the Town of Franklin did not file briefs in this appeal. Edward Gately, abandoned their claim regarding the permit under G. L. c. 40A
§ 17, the plaintiffs argue the judge erred in dismissing with
prejudice counts I and II of their complaint, which challenged
the permit under G. L. c. 41, § 81O, § 81W, and G. L. c. 240,
§ 14A.4 We affirm.
Background. We summarize the relevant, undisputed facts.
The defendant owns a 9.6-acre parcel of land in Bellingham and
has obtained a comprehensive permit to build an affordable
housing development pursuant to G. L. c. 40B, §§ 20-23, to be
called Burton Woods ("development"). The development will be
comprised of twenty-eight single-family homes on an undivided
lot with a condominium-style ownership scheme. The development
has no frontage on any private or public way in the town of
Bellingham. Instead, its only means of access is over Sunken
Meadow Road, which is a private way located in a subdivision in
the bordering town of Franklin.5 Two parcels, owned by two sets
of plaintiffs, the Flaherty and Griffith families, abut the
development. These parcels are subject to an easement allowing
trustee of Hidden Meadow II Realty Trust, was the only defendant represented. We refer to the trust as "the defendant."
4 The plaintiffs' second amended complaint, with the assented-to addition of six plaintiffs, is the operative complaint, to which we refer.
5 The Cranberry Meadows subdivision was established with a recorded subdivision plan in 1987.
2 the defendant to use Sunken Meadow Road for access to the
development. The parcels are also currently subject to an
easement for a temporary turnaround, also referred to as a "cul-
de-sac," until such time as Sunken Meadow Road is extended to
the development. The defendant plans to pave an extension from
the cul-de-sac to connect Sunken Meadow Road to the development.
The plaintiffs challenged the permit in the Land Court on
four counts. After a four-day bench trial, which included the
admission of sixty exhibits and the testimony of numerous lay
and expert witnesses, the judge took the matter under
advisement. In a thoughtful and comprehensive decision, the
judge made numerous factual findings and credibility
determinations, ultimately dismissing all four counts of the
plaintiffs' complaint with prejudice. Plaintiffs appeal the
judge's dismissal of counts I and II in their second amended
complaint. We address each argument in turn.
Discussion. 1. Count I. In count I of the complaint, the
plaintiffs sought a declaratory judgment under G. L. c. 231A,
§ 1. They alleged that the proposed extension of Sunken Meadow
Road constitutes a modification of their subdivision plan,
requiring approval by the Franklin Planning Board under G. L.
c. 41, § 81O and § 81W. The plaintiffs also alleged that such a
modification would affect them and therefore requires their
3 consent under § 81W.6 On appeal, they claim that the judge erred
in dismissing count I, especially in light of the fact that, in
his analysis, the judge reasoned that the extension of the road
would require the approval by the Franklin Planning Board. At
issue is the judge's interpretation of G. L. c. 41, § 81O and
§ 81W. We review the interpretation of a statute de novo. See
Commonwealth v. J.F., 491 Mass. 824, 836 (2023).
Section 81O of the subdivision control law provides that,
once a subdivision plan is approved, "the location and width of
ways shown thereon shall not be changed unless the plan is
amended accordingly as provided in section eighty-one W." G. L.
c. 41, § 81O. Section 81W provides that any modification or
amendment of a subdivision plan is subject to the approval of
the planning board. G. L. c. 41, § 81W. Section 81W also
requires the consent of the owners of lots "affected" by a
modification of a subdivision plan. The judge concluded that
the plaintiffs' lots were not "affected" under the meaning of
§ 81W and that the defendant was not required to obtain the
plaintiffs' consent to extend Sunken Meadow Road.
6 The plaintiffs also argued, in the alternative to their G. L. c. 231A, § 1 claim, that G. L. c. 41, § 81Y enabled them to bring a ten taxpayer claim to enforce the Franklin Subdivision Rules and Regulations. The judge held that this claim was not yet ripe, which the plaintiffs conceded was correct at oral argument.
4 In Patelle v. Planning Bd. of Woburn, we held that only
plan modifications that impair the marketability of lot owners'
titles required their consent under § 81W. See 20 Mass. App.
Ct. 279, 282 (1985). "Examples would be modifications which
altered the shape or area of lots, denied access, impeded
drainage, imposed easements, or encumbered in any manner and
extent of use of which the lot was capable when sold." Id.
Marketability of title is a term of art that "relates to defects
affecting legally recognized rights and incidents of ownership"
and is distinct from economic marketability. See Somerset Sav.
Bank v. Chicago Title Ins. Co., 420 Mass. 422, 428 (1995).
Changes to a subdivision plan that affect economic marketability
alone i.e., "indirect effects," do not require the consent of
subdivision lot owners. See Patelle, supra at 282, 284.
Here, the lots owned by the Flahertys and Griffiths are
already subject to the easement to extend Sunken Meadow Road to
the Bellingham town line. They are also subject to the easement
for the temporary turnaround or cul-de-sac, which will cease to
exist when Sunken Meadow Road is extended. The plaintiffs argue
that the Flahertys and Griffiths are "affected" for purposes of
§ 81W i.e., that the marketability of their title would be
affected, because their lots would be doubly burdened by the
road and cul-de-sac easements. The reality, however, is that
the lots are already doubly burdened. The Flahertys and
5 Griffiths took title to their lots subject to both of these
easements. While the physical features of their lots will
change if the development goes forward, no legal rights will be
affected.7 The plaintiffs contend that the defendant has no plan
to remove the asphalt that currently constitutes the existing
cul-de-sac, but § 81W is concerned with marketability of title
to the lots, not with their physical features. See Patelle, 20
Mass. App. Ct. at 282 ("physical changes [may] affect . . . lots
in a subdivision, e.g., location of trees, width of streets,
planting between the curb and lot lines . . . . They do not,
however, limit the utility of those lots and, hence, do not
'affect' them in the statutory sense").8 Accordingly, the judge
did not err in holding that the defendant is not required to
obtain the plaintiffs' consent to extend Sunken Meadow Road.
Plaintiffs also argue count I should not have been
dismissed because the judge agreed with their claim that the
subdivision control law required the defendant to obtain the
approval of the Franklin Planning Board to extend Sunken Meadow
Road. After the judge issued his decision, plaintiffs moved to
7 The temporary turnaround easement will disappear when Sunken Meadow Road is extended, but this fact is already reflected in the titles in question.
8 To the extent there is a dispute as to who may be responsible for removing the actual cul-de-sac asphalt, the subdivision control law does not provide a cause of action to resolve it.
6 amend the judgment and sought clarification because, despite the
judge's apparent agreement that the defendant must obtain a
permit from the town of Franklin, the judge nevertheless
dismissed count I.
The judge's dismissal was appropriate, however, because the
plaintiffs failed to demonstrate they had standing to seek a
declaratory judgment under G. L. c. 231A, § 1. See
Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v.
Commissioner of Ins., 373 Mass. 290, 292 (1977) ("plaintiff must
demonstrate the requisite legal standing to secure [declaratory
relief]"). "G. L. c. 231A, by itself, does not provide an
independent statutory basis for standing." Massachusetts State
Police Commissioned Officers Ass'n v. Commonwealth, 462 Mass.
219, 222 (2012), citing Indeck Me. Energy, LLC v. Commissioner
of Energy Resources, 454 Mass. 511, 516-517 (2009). "To
establish standing, the alleged injury must be 'within the area
of concern' of the statute." Massachusetts State Police
Commissioned Officers Ass'n at 223, quoting Indeck, supra.
"[C]ontroversy in the abstract is not sufficient to allow a
plaintiff to invoke the declaratory judgment remedy. The
plaintiff must also be one who, by virtue of a legally
cognizable injury, is a person entitled to initiate judicial
resolution of the controversy" (citation omitted).
7 Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc., supra
at 293.
Because the proposed extension of Sunken Meadow Road does
not require the plaintiffs' consent, they lack a legally
cognizable injury and therefore lack standing to obtain a
declaratory judgment under G. L. c. 231A, § 1. While the
defendant may have a legal obligation to obtain a permit from
the town of Franklin, this fact alone would not confer standing
on the plaintiffs under G. L. c. 231A, § 1. Nor does it
constitute error for the judge to acknowledge this obligation
while dismissing the plaintiffs' claim.9 Count I was properly
dismissed.
2. Count II. In count II of their second amended
complaint, the plaintiffs sought a declaratory judgment,
pursuant to G. L. c. 240, § 14A ("Section 14A"), that the
defendant's proposed use of Sunken Meadow Road would violate
Franklin's zoning ordinance. The judge dismissed the claim,
holding that the Land Court lacked subject matter jurisdiction
and that the plaintiffs lacked standing. The plaintiffs contend
that the judge erroneously conflated their claim seeking a
9 This does not leave the plaintiffs without a remedy, should the defendant attempt to extend Sunken Meadow Road without a permit. At that point, the plaintiffs' ten taxpayer claim would be ripe, which provides for injunctive relief. See G. L. c. 41, § 81Y.
8 declaratory judgment regarding Sunken Meadow Road with a claim
seeking to invalidate the permit under G. L. c. 40A, § 17.
First, we note that we agree with the Land Court judge that
a challenge to the issuance of a permit does not lie under
chapter 240 § 14A. See Whitinsville Retirement Soc'y, Inc. v.
Northbridge, 394 Mass. 757, 762 (1985). It was reasonable for
the judge to conclude that the plaintiffs' § 14A claim was
really a request to annul the Bellingham zoning board's
decision. Much of the plaintiffs' complaint and the four-days
of trial testimony focused on their challenge to the permit
under G. L. c. 40A, § 17, and the plaintiffs do not appeal the
judge's dismissal of that count. However, to the extent that
count II sought a declaratory judgment that the proposed use of
Sunken Meadow Road would violate the Franklin zoning ordinance,
that argument fails on the merits.10 As a threshold matter,
resolving the plaintiffs' claim on the merits requires
interpretation of the Franklin zoning ordinance and the common
law, both of which this court reviews de novo. See Lexington
Pub. Sch. v. K.S., 489 Mass. 309, 317 (2022). See also Doherty
v. Planning Bd. of Scituate, 467 Mass. 560, 567 (2014).
10The Land Court has jurisdiction to evaluate the extent to which a proposed use of a way complies with a town's zoning ordinance. See Banquer Realty Co. v. Acting Bldg. Comm'r, 389 Mass. 565, 570 (1983). The plaintiffs also likely had standing to seek a declaratory judgment as owners of a fee interest in the way under the derelict fee statute, G. L. c. 183, § 58.
9 The plaintiffs argue that the proposed use of Sunken Meadow
Road to access the development is impermissible because the
development does not comply with the Franklin zoning ordinance,
so use of the road should be barred under the common-law "access
is use" doctrine. Under the access is use doctrine, "use of
land in one zoning district for an access road to another zoning
district is prohibited where the road would provide access to
uses that would themselves be barred if they had been located in
the first zoning district." Beale v. Planning Bd. of Rockland,
423 Mass. 690, 694 (1996). Here, the defendant proposes to
build twenty-eight single-family homes in the development, an
undisputed fact. The access road to the development, Sunken
Meadow Road, is situated in Franklin's "Rural Residential I"
zoning district, which permits single family residential uses by
right.
The plaintiffs argue that § 185-11 of the Franklin Zoning
Bylaw, which prohibits the construction of more than one single-
family dwelling on a single lot, precludes the use of Sunken
Meadow Road for access to the development. This argument
misunderstands the access is use doctrine, which seeks to
prevent conflicting uses rather than requiring conformity to
every zoning requirement. See e.g., Harrison v. Building
Inspector of Braintree, 350 Mass. 559 (1966) (conflict between
industrial and single-family uses); Richardson v. Zoning Bd. of
10 Appeals of Framingham, 351 Mass. 375 (1966) (conflict between
multifamily and single-family uses); Beale, 423 Mass at 694
(conflict between retail and industrial uses). The plaintiffs
cite no authority, and we have found none, that has invalidated
the use of a way in a single-family zoning district for access
to a single-family development in another district. In an
attempt to skirt this issue, the plaintiffs characterize the
development as a multifamily development due to its proposed
undivided lot ownership structure. This misapplies the law, as
a "fundamental principle of zoning [is that] it deals basically
with the use, without regard to the ownership, of the property
involved or who may be the operator of the use" (quotations
omitted) CHR Gen., Inc. v. Newton, 387 Mass. 351, 356 (1982),
quoting 1 A. Rathkopf, Zoning and Planning § 1.04, at 1-21 (4th
ed. 1982). In CHR Gen., the basis for the Supreme Judicial
Court's decision was that a building composed of condominium
units does not use the land upon which it sits any differently
from a building containing apartments. 387 Mass. at 356-357.
Similarly here, a development composed of single-family homes
owned in a condominium scheme does not use the land upon which
it sits any differently than if the same single-family homes
were subdivided into separate lots. As such, the plaintiffs'
access is use argument fails on the merits -- the use of Sunken
11 Meadow Road to access the proposed development does not violate
the Franklin zoning bylaws.
Conclusion. In sum, the plaintiffs' consent is not
required for the extension of Sunken Meadow Road under G. L.
c. 41, § 81W, and the judge's dismissal of count I of their
second amended complaint was proper. Furthermore, dismissal of
count II of the plaintiffs' second amended complaint was proper
because it fails on the merits.
Judgment affirmed.
By the Court (Meade, Walsh & Smyth, JJ.11),
Clerk
Entered: February 11, 2025.
11 The panelists are listed in order of seniority.