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Case Information
Filed
2024-06-03
Status
Open
Type
E Filed Zad Appeal From Planning Board, G.l. Chapter 41, 81 Bb
Docket
37 entries
Parties
Plaintiff
Jr Development, Llc
Defendant
Billerica Planning Board
Lawyers
Docket Entries
- Remand Order, Issued. Counsel emailed copies. Judge: Rubin, Hon. Diane R.
- Land Court surcharge Receipt: 450914 Date: 06/03/2024
- Case assigned to the Fast Track per Land Court Standing Order 1:04.
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- Verified Complaint eFiled.
- The case has been assigned to the F Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Jonathan Silverstein, Esq. [email protected] Plaintiff: Christopher Jerome Alphen, Esq. [email protected] Sent On: 06/13/2024 10:23:51
- Event Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference VIA ZOOM. Date: 07/24/2024 Time: 02:00 PM Counsel notified via email.
- Proof of Service in Compliance with Civ. Pro. Rule 4(f), filed.
- Motion to Intervene as a Defendant, filed.
- Brief in Support of Motion to Intervene as a Defendant including Exhibits and photos, filed. (Courtesy Copy filed June 26, 2024)
- Notice of Docket Entry: Any Oppositions to "Motion to Intervene as a Defendant" are due July 17, 2024. The court will add this the July 24, 2024 hearing. Counsel and Interested party Ms. Musker notified via email. Judge: Rubin, Hon. Diane R.
- Answer of Defendant Billerica Planning Board, filed.
- Appearance of Paul R DeRensis, Esq. for Billerica Planning Board, filed
- Appearance of Noemi Kawamoto, Esq. for Billerica Planning Board, filed
- Plaintiff's Opposition to Virginia C. Musker's Motion to Intervene, filed.
- Motion to Dismiss Plaintiffs Opposition of Motion to Intervene dated June 20, 2024, filed.
- Case Management Conference Joint Statement, filed.
- Potential Intervener, Virginia Musker, mailed the court a thumb drive that is in the case file.
- Event Resulted: Case Management Conference scheduled on: 07/24/2024 02:00 PM Has been: Case management conference held via videoconference. Attorney Jonathan Silverstein and Christopher Alphen appeared on behalf of plaintiff, and Attorney Noemi Kawamoto appeared on behalf of the Billerica Planning Board (the "Board"). Virginia Musker appeared pro se on her motion to intervene. Court is in receipt of the Verified Complaint, the Motion to Intervene as a Defendant, Answer of Defendant Billerica Planning Board, Plaintiff's Opposition and Motion to Dismiss Virginia C. Muster's Motion to Intervene, and parties' Case Management Conference Joint Statement. BACKGROUND. By way of background, Attorney Silverstein explained that plaintiff appeals pursuant to G.L. c. 41, 81BB, from a decision of the Town of Billerica Planning Board denying a subdivision application for 305 Concord Road, Billerica (the "Property") under the local bylaw's small-lot, B-2 subdivision process. The proposed project has already received variances from the Zoning Board of Appeals (the "ZBA"). The ZBA's approval decision was the subject of a Superior Court abutter appeal brought by Ms. Musker that was dismissed on summary judgment for lack of standing, which was upheld by the Appeals Court. See Musker v. Zoning Bd. of Appeals of Billerica, 103 Mass. App. Ct. 1111 (2023), rev. denied, 493 Mass. 1106 (2024). Plaintiff alleges that the Board is constrained by the ZBA's prior approval of the frontage variance to approve the B-2 subdivision, as in Rosa v. Billerica Planning Bd., 21 LCR 359 (2013) (Misc. Case No. 09 MISC 392811) (Grossman, J.). MOTION TO INTERVENE. Following argument on Ms. Musker's motion to intervene, that motion is DENIED for the following reasons. Mass. R. Civ. P. 24(a) permits intervention of right "when the applicant claims an interest relating to the property or transaction which is subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." Here, the court concludes that intervention under Rule 24(a) is not appropriate because the Board, having denied the underlying application and now defending that denial, adequately represents Ms. Musker's interests in opposing the application. Further, Ms. Musker has not been aggrieved by the Board's denial. See Prudential Ins. Co. v. Bd. of Appeals of Westwood, 18 Mass. App. Ct. 632, 634-635 (1984) (abutters are not sufficiently aggrieved to warrant intervention where the board denied the relevant application and proposed intervenor could appeal on remand); Boxborough Town Ctr., LLC v. Town of Boxborough Planning Bd., 26 LCR 476, 476-477 (2018) (Misc. Case No. 18 PS 000253) (Vhay, J.). Nor is permissive intervention pursuant to Mass. R. Civ. P. 24(b) appropriate. Rule 24(b) permits intervention when an applicant's claim or defense and the main action have a question of law or fact in common. In its discretion, the court considers "whether the intervention will unduly delay or prejudice the adjudication of the rights of the parties." See Town of Falmouth v. Zoning Bd. of Appeals of Falmouth, 94 Mass. App. Ct. 1108 (2018) (Rule 1:28 Decision). Here, although Ms. Musker expresses heartfelt and wide-ranging concerns around the proposed project, many of those concerns relate to events long in the past such as the razing of the prior structure on the Property and other local approvals that are not well beyond the issue now before the court. As such, I conclude that intervention will confuse and unduly delay these proceedings, particularly where Ms. Musker's position is adequately represented by the Board and where Ms. Musker's claims against the plaintiff in the earlier Superior Court zoning case were dismissed for lack of aggrievement. DISCOVERY SCHEDULE. The court sets the following discovery schedule: By January 31, 2025, discovery to be complete, to include expert designations and disclosures. By February 7, 2025, parties to file a joint report confirming that discovery is complete, advising as to whether any party intends to file a dispositive motion (and the basis therefore), whether a pre-trial conference should be scheduled, prospects for settlement or further mediation, and advising of any other matters necessitating the court's attention. Status conference scheduled for February 13, 2025, at 9:30 A.M. Hon. Diane R. Rubin, Presiding Counsel and potential Intervenor notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 02/13/2025 Time: 09:30 AM
- Motion to Amend Motion to Intervene downloaded June 20, 2024, filed.
- Virginia Musker's Request for a Cease and Desist Order, filed.
- Notice of Docket Entry: The court is in receipt of Virginia Musker's Request for a Cease and Desist Order that was efiled with the court on August 7, 2024. Due to her not being a party to this case, no action will be taken on this. Counsel and Virginia Musker notified via email. Judge: Rubin, Hon. Diane R.
- Joint Status Report and Request for Scheduling Order, filed. The court has adopted the following schedule: By February 21, 2025, the parties will file their Joint Statement of Agreed-upon Facts and Exhibits. By February 28, 2025, the plaintiff shall file its Motion for Judgment on Case Stated. By March 21, 2025, the Board shall file its Opposition to the Plaintiff's Motion for Judgment on Case Stated. By April 11, 2025, the plaintiff shall file its Reply Brief. Hearing scheduled for June 23, 2025 at 11:00 am. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Event Resulted: Status Conference scheduled on: 02/13/2025 09:30 AM Has been: Continued For the following reason: Request of all Parties Hon. Diane R. Rubin, Presiding
- Scheduled Judge: Rubin, Hon. Diane R. Event: Motion Date: 06/23/2025 Time: 11:00 AM Counsel notified via email.
- Agreed Statement of Facts, filed.
- Table of Contents: Joint Appendix of Exhibits, filed.
- Plaintiff's Motion for Judgment of Case Stated, filed. (Titled as Memorandum of Law in Support of but it is the actual Motion itself)
- Memorandum of Law in Support of Plaintiff's Motion for Judgment of Case Stated, filed.
- Joint Exhibit 13 for the Memorandum of Law in Support, filed.
- Opposition of the Town of Billerica Planning Board to JR Development, LLC's Motion for Judgment on Case Stated, filed.
- Event Resulted: Motion scheduled on: 06/23/2025 11:00 AM Has been: Case stated trial held via videoconference. Attorney Jonathan Silverstein and Anthony Mollica appeared on behalf of plaintiff, and Attorney Noemi Kawamoto appeared on behalf of the Billerica Planning Board (the "Board"). Court is in receipt of the Agreed Statement of Facts, Table of Contents: Joint Appendix of Exhibits, Plaintiff's Motion for Judgment of Case Stated, Memorandum of Law in Support of Plaintiff's Motion for Judgment of Case Stated, Joint Exhibit 13 for the Memorandum of Law in Support, and Opposition of the Town of Billerica Planning Board to JR Development, LLC's Motion for Judgment on Case Stated. Court heard argument on Plaintiff's Motion for Judgment of Case Stated. Court discussed with counsel the process for approval of a subdivision in Billerica as a so-called "B-2 Subdivision," noting that this matter was addressed in Rosa v. Billerica Plan. Bd., 21 LCR 359 (2013) (Misc. Case No. 09 MISC 392811) (Grossman, J.). By July 23, 2025, parties to file a stipulation regarding the "B-2 Subdivision" process and/or further briefing on the issue. In the event the parties do not agree upon a stipulation, plaintiff may further file supplemental briefing on its argument based on res judicata as to the findings and conclusions in Rosa, 21 LCR 359. Also by July 23, 2025, parties to file a status report advising the court as to whether parties have agreed upon a remand. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Notice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: Jonathan Silverstein, Esq. [email protected] Plaintiff: Christopher Jerome Alphen, Esq. [email protected] Defendant: Paul R DeRensis, Esq. [email protected] Defendant: Noemi Kawamoto, Esq. [email protected] Sent On: 06/24/2025 15:57:31
- Joint Response to Court's June 23, 2025 Notice of Docket Entry, filed.
- PROPOSED Remand Order, filed.
- Supplemental Memorandum in support of Plaintiff's Motion for Judgment on Case Stated, filed.
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