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Court

Massachusetts Unified County

Massachusetts

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Case Information

Filed 2024-09-23
Status Closed
Type E Filed Zad Appeal From Planning Board, G.l. Chapter 41, 81 Bb
Docket 53 entries

Parties

Plaintiff Borre Massick, Michelle|Massick, Robert B.
Defendant Town Of West Tisbury Planning Board|Virginia C. Jones As Member Of The Town Of West Tisbury Planning Board|Matt Merry As Member Of The Town Of West Tisbury Planning Board|Leah Smith As Member Of The Town Of West Tisbury Planning Board|Amy Upton As Member Of The Town Of West Tisbury Planning Board|Heikki Soikkeli As Member Of The Town Of West Tisbury Planning Board|Dedham Institution For Savings|Merry Farm, Llc

Lawyers

Docket Entries

  1. Stipulation of Dismissal - Mass.R.Civ.P. 41(a)(1)(ii)
  2. Land Court surcharge Receipt: 454438 Date: 09/23/2024
  3. Case assigned to the Fast Track per Land Court Standing Order 1:04.
  4. Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
  5. Complaint eFiled.
  6. The case has been assigned to the F Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Jennifer C Platt, Esq. [email protected] Plaintiff: Christina Marshall, Esq. [email protected] Sent On: 10/02/2024 13:31:00
  7. Event Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference VIA ZOOM. Date: 11/07/2024 Time: 09:30 AM Counsel notified via email.
  8. Affidavit of Atty. Jennifer Platt as to Service, filed.
  9. Answer of the Town of West Tisbury Planning Board and Members, filed.
  10. Motion under Rule 20(a) to Joint Merry Farm, LLC as a Party Defendant, filed.
  11. Non-Party Merry Farm, LLC's Response in Support of Defendants' Motion under Rule 20(a) to Joint it as a Party Defendant, filed.
  12. Case Management Conference Joint Statement, filed.
  13. Event Resulted: Case Management Conference scheduled on: 11/07/2024 09:30 AM Has been: Initial Case Management Conference and early intervention event held via Zoom. Attorneys Jennifer Platt and Christina Marshall appeared on behalf of the plaintiffs, who were present. Attorney Michael Goldsmith appeared on behalf of the defendants, with Jane Rossi, the West Tisbury Town Planner, present. Attorney Jonathan Silverstein appeared on behalf of Merry Farm, LLC (the "LLC"), a non-party, but owner of the proposed subdivision in dispute located at 140 Merry Farm Road, West Tisbury (the "Property"). Court is in receipt of the Complaint, Answer of the Town of West Tisbury Planning Board and Members, Motion under Rule 20(a) to Joint Merry Farm, LLC as a Party Defendant, Non-Party Merry Farm, LLC's Response in Support of Defendants' Motion under Rule 20(a) to Joint it as a Party Defendant, and Case Management Conference Joint Statement. By way of background, Attorney Platt explained that the plaintiffs as direct abutters appeal from a decision by the Planning Board approving a 2-lot "Form C" definitive subdivision of the Property. Following colloquy, for the reasons articulated on the record and as set forth below court, DEFERRED ruling on the defendants' motion to join Merry Farm, LLC for thirty (30) days in light of a foreclosure of the Property scheduled for December 6, 2024. By December 12, 2024, parties to file a joint status report, with the LLC to join in the filing. Status conference scheduled for December 19, 2024, at 11:30A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  14. Alternative Dispute Resolution: Early Intervention Event held. Judge: Rubin, Hon. Diane R.
  15. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference VIA ZOOM. Date: 12/19/2024 Time: 11:30 AM Counsel notified via email.
  16. Joint Status Report, filed.
  17. Motion to Amend Complaint, filed.
  18. Motion to Amend Complaint ALLOWED. Plaintiff to file the Amended Complaint. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  19. First Amended Complaint, filed.
  20. Event Resulted: Status Conference scheduled on: 12/19/2024 11:30 AM Has been: Continued to January 27, 2025 at 2:30 pm via zoom. Counsel to file a Joint Status Report by January 21, 2025. Hon. Diane R. Rubin, Presiding
  21. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference VIA ZOOM. Date: 01/27/2025 Time: 02:30 PM Counsel notified via email.
  22. Answer to Amended Complaint, filed.
  23. Affidavit of Service, filed.
  24. Appearance of Kathleen M Heyer, Esq. for Dedham Institution for Savings, filed
  25. Dedham Institution for Savings' Motion to Dismiss, filed.
  26. Memorandum of Law in Support of Motion to Dismiss, filed.
  27. Assented to Motion to Extend Deadline to Respond to Amended Complaint, filed.
  28. Assented to Motion to Extend Deadline to Respond to Amended Complaint ALLOWED. The time to file a Response has been extended to February 14, 2025. The court also set the following dates; Any Oppositions to the Motion to Dismiss are due February 18, 2025; Reply Briefs due March 18, 2025; Hearing set for April 14, 2025 at 2:30 pm. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  29. Event Resulted: Status Conference scheduled on: 01/27/2025 02:30 PM Has been: Continued to April 14, 2025 at 2:30 pm. Hon. Diane R. Rubin, Presiding
  30. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 04/14/2025 Time: 02:30 PM VIA ZOOM. Counsel notified via email.
  31. Defendant Merry Farm, LLC's Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6), filed.
  32. Memorandum in Support of Defendant Merry Farm, LLC's Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6), filed.
  33. Appendix to Motion to Dismiss, filed.
  34. Notice of Docket Entry: Any Oppositions to Defendant Merry Farm's Motion to Dismiss are due March 31, 2025 with Reply Briefs due April 11, 2025. The hearing is continued to May 6, 2025 at 2:00 pm. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  35. Event Resulted: Status Conference scheduled on: 04/14/2025 02:30 PM Has been: Continued to May 6, 2025 at 2:00 pm at the suggestion of the court. Hon. Diane R. Rubin, Presiding
  36. Scheduled Judge: Rubin, Hon. Diane R. Event: Motion to Dismiss Date: 05/06/2025 Time: 02:00 PM Counsel notified via email.
  37. Opposition to Defendant Merry Farm, LLC's Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6), filed. (Courtesy Copies filed 04/01/2025)
  38. Response to Defendant Merry Farm LLC's Statement of Facts, filed. (Courtesy Copies filed 04/01/2025)
  39. Appendix in Support of Opposition to Motion to Dismiss, filed. (Courtesy Copies filed 04/01/2025)
  40. The Planning Board's Response to Merry Farm, LLC's Motion to Dismiss, filed.
  41. Atty. Silverstein emailed the court requesting a week extension to April 18, 2025 to file their Reply Brief which is an assented to request. Atty. Marshall then emailed the court asking to have until April 18, 2025 to file a brief response to the Board's response. Court allowed these requests. Counsel will file all paperwork by April 18, 2025. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  42. Reply to Defendant Town of West Tisbury Planning Board's Response to Merry Farm, LLC's Motion to Dismiss, filed.
  43. Defendant Marry Farm, LLC's Reply to Plaintiffs' Opposition to Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 1(b)(6), filed.
  44. Appendix 32 Second Affidavit of Reid Silva, P.E., P.L.S., filed.
  45. Event Resulted: Motion to Dismiss scheduled on: 05/06/2025 02:00 PM Has been: Hearing on motions to dismiss held via videoconference. Attorneys Jennifer Platt and Christina Marshall appeared on behalf of the plaintiffs, who were present. Attorney Michael Goldsmith appeared on behalf of the defendants, with Jane Rossi, the West Tisbury Town Planner, present. Attorney Jonathan Silverstein appeared on behalf of Merry Farm, LLC ("Private Defendant"), owner of the proposed subdivision in dispute located at 140 Merry Farm Road, West Tisbury (the "Property"). Court is in receipt of the Joint Status Report (filed on 12/12/24), First Amended Complaint, Answer to Amended Complaint, Affidavit of Service, Dedham Institution for Savings' Motion to Dismiss, Memorandum of Law in Support of Motion to Dismiss, Defendant Merry Farm, LLC's Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6), Memorandum in Support of Defendant Merry Farm, LLC's Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6), Appendix to Motion to Dismiss, Opposition to Defendant Merry Farm, LLC's Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6), Response to Defendant Merry Farm LLC's Statement of Facts, Appendix in Support of Opposition to Motion to Dismiss, The Planning Board's Response to Merry Farm, LLC's Motion to Dismiss, Reply to Defendant Town of West Tisbury Planning Board's Response to Merry Farm, LLC's Motion to Dismiss, Defendant Marry Farm, LLC's Reply to Plaintiffs' Opposition to Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 1(b)(6), and Appendix 32 Second Affidavit of Reid Silva, P.E., P.L.S. Court first heard argument on Dedham Institution for Savings' Motion to Dismiss. With no opposition, court ALLOWED the motion. Court then heard argument on Defendant Merry Farm, LLC's Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6). Following argument, for the reasons stated on the record, in the opposition filings, and as follows court DENIED the motion. Plaintiffs have appealed from the Planning Board's approval of a two-lot subdivision for Private Defendant. Plaintiffs' complaint alleges that their property will suffer stormwater impacts, traffic impacts, and impact to views and rural character as a result of the proposed subdivision. Private Defendant first challenges plaintiffs' standing to proceed with this challenge under G. L. c. 41, 81BB. This challenge has three components. First, the Private Defendant argues plaintiffs are not abutters under G. L. c. 41, 81T because there is land separating the plaintiffs' property at 131 Merry Farm Road and Private Defendant's property at 140 Merry Farm Road, West Tisbury. Using the screenshare function of zoom, Attorney Silverstein presented Private Defendant's subdivision plan filed with the Planning Board, prepared by Vineyard Land Surveying and dated January 26, 2024. Plaintiffs, however, contend they are direct abutters because both parties own to the fee in Merry Farm Road. In light of this disputed issue, the court accepts as true for the purposes of the pending motion to dismiss the allegations in plaintiffs' complaint. Private Defendant next argues abutters have no presumption of standing as a result of recent amendments to Chapter 40A, 17. Under those amendments, abutters are no longer entitled to a presumption of standing. Section 17 of Chapter 40A, enacted by the Affordable Homes Act, now provides: "If the complaint is filed by someone other than the original applicant, appellant or petitioner, then each plaintiff, whether or not previously constituting parties in interest for notice purposes, shall also sufficiently allege and must plausibly demonstrate that measurable injury, which is special and different to such plaintiff, to a private legal interest that will likely flow from the decision through credible evidence." Those amendments, however, do not specifically state applicability to subdivision appeals under 41, 81BB, but rather amend G.L. c. 40A. As such, I conclude those amendments are not applicable in this case. Private Defendants further argue that they have rebutted the plaintiffs' presumption of standing with two affidavits from Reid Silva, P.E., P.L.S. that the plaintiffs' property will not suffer impacts, without adequate response. Plaintiffs have responded by filing the affidavits of Robert B. Massick and Michelle Borré Massick detailing the conditions in the neighborhood and concerns about how stormwater, traffic, and pedestrian safety will negatively impact their property. Because expert testimony will be required at trial for some or all of these issues, Plaintiffs seek a period of discovery in order to retain experts and further support the allegations in the complaint. Plaintiffs also challenge the credentials of Defendant's expert. I conclude the complaint and the affidavits in support thereof adequately allege impacts such that dismissal would be premature without affording Plaintiffs an opportunity to secure experts. This case is distinguished from Smith v. McAlduff, 30 LCR 647 (2022) (Misc. Case No. 21 MISC 000182) (Rubin, J.) relied upon by the Private Defendant, because Smith concerned modification of a traditional suburban subdivision, whereas here the relationship between the parties' properties is more complicated involving easements and a shared drive. Further, Smith was decided on a combined motion to dismiss and a motion for summary judgment after extensive prior proceedings between the same parties, such that the Smith plaintiffs had ample opportunity to engage experts and failed to do so. Here, plaintiffs advise that they intend to engage experts to elaborate on and support the allegations of harm in the complaint. Private Defendant, with the support of the Town, next argues that plaintiffs' claims are not ripe because the subdivision's two lots remain under common ownership and are thus merged for zoning purposes. The defendants overlook Section 6 of the Residential Building Size Bylaw (contained in Section 4.4-8 of the Zoning Bylaw) entitled "Division and Subdivision of Land." Section 6 specifically states that : "All lots resulting from the Division or subdivision of land that create new lots or parcels from existing lots containing dwelling or accessory structures shall adhere to sections B.1, B.2, and B.3 of this Bylaw and will contain necessary corresponding acreage. If a resulting lot contains a structure that exceeds the RFA or SFA limit, a special permit had previously been issued for the structure, said permit must be modified or amended prior to division." The phrase "prior to division" appears applicable here such that plaintiffs' complaint challenging the Planning Board's approval of the defendant's two lot subdivision is not hypothetical or speculative but rather ripe for adjudication. At this juncture I conclude that the complaint does not seek to prematurely challenge zoning for Private Defendant, but rather challenges the Planning Board's subdivision approval where the conditions of Section 6 have not been satisfied. "The subdivision control law contemplates that the planning board shall ensure compliance of subdivision plans with the zoning bylaw. Doliner v. Planning Board of Millis, 343 Mass. 1, 6 (1961). See also G. L. c. 41, 81M ("The powers of a planning board under the subdivision control law shall be exercised with due regard for insuring compliance with the applicable zoning ordinances or by-laws"). I note that because Section 6 was only recently adopted there may be legislative history that would shed light on its purpose and applicability under the circumstances of this case. Following colloquy, court encouraged the parties to engage in mediation or settlement discussions in light of the time, expense, and risk of protracted litigation. Parties requested the court put in place a discovery schedule in the event they are unsuccessful in achieving a negotiated resolution. Accordingly, court set the following schedule: by November 6, 2025, discovery to be complete, to include any expert designations and disclosures; and by November 13, 2025, a Joint Status Report to be filed confirming that discovery is complete and addressing any other matters that might benefit from the court's attention. Status conference scheduled for November 18, 2025, at 9:30A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  46. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 11/18/2025 Time: 09:30 AM
  47. Notice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: Jennifer C Platt, Esq. [email protected] Plaintiff: Christina Marshall, Esq. [email protected] Defendant: Michael A Goldsmith, Esq. [email protected] Defendant: Kathleen M Heyer, Esq. [email protected] Defendant: Jonathan Silverstein, Esq. [email protected] Sent On: 05/08/2025 10:31:33
  48. Motion to Dismiss Merry Farm, LLC and Motion to Remand, filed.
  49. Notice of Docket Entry: Motion to Dismiss Merry Farm, LLC and Motion to Remand ALLOWED. Defendant Merry Farm, LLC is Dismissed. A Motion to Remand will be issued. Judge: Rubin, Hon. Diane R. Notice of Docket Entry was generated and sent to: Plaintiff: Jennifer C Platt, Esq. [email protected] Plaintiff: Christina Marshall, Esq. [email protected] Defendant: Michael A Goldsmith, Esq. [email protected] Defendant: Isabelle Lew, Esq. [email protected] Defendant: Kathleen M Heyer, Esq. [email protected] Defendant: Jonathan Silverstein, Esq. [email protected] Defendant: Christopher Jerome Alphen, Esq. [email protected] Sent On: 09/25/2025 12:23:31
  50. Event Resulted: Status Conference scheduled on: 11/18/2025 09:30 AM Has been: Canceled Hon. Diane R. Rubin, Presiding
  51. Order on Motion for Remand, Issued. Judge: Rubin, Hon. Diane R.
  52. Joint Status Report, filed.
  53. Stipulation of Dismissal, filed.

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