PAUL GRIFFITH & Others v. BELLINGHAM ZONING BOARD OF APPEALS & Others.

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.

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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.

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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.

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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.

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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

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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.

12