The opinion
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
24-P-814
ROBERT RODERIQUES
vs.
PLANNING BOARD OF FAIRHAVEN & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The town of Fairhaven planning board (planning board)
denied an application for a subdivision plan approval filed by
the plaintiff, Robert Roderiques. The plaintiff appealed the
planning board's decision to the Superior Court and filed a
motion for summary judgment. The planning board and the board
of health of Fairhaven (board of health) (collectively, the
defendants) opposed the motion and filed a cross motion for
summary judgment. A Superior Court judge granted the
defendants' cross motion for summary judgment, affirming the
planning board's decision and dismissing the complaint. On
1 Board of health of Fairhaven.
appeal, the plaintiff claims that the judge erred in granting
summary judgment. We affirm.
Background. "We summarize the findings set forth in the
order on the parties' cross motions for summary judgment,
supplemented by other uncontroverted facts in the summary
judgment record." Williams v. Board of Appeals of Norwell, 490
Mass. 684, 685 (2022). On May 28, 2019, the plaintiff filed a
definitive plan proposing a sixteen-lot residential subdivision
with the planning board. The plaintiff also filed a plan with
the board of health on December 12, 2019. On January 14, 2020,
after several public hearings, the planning board unanimously
voted to deny the plaintiff's plan.2 On January 23, 2020, the
board of health held a public hearing to discuss the plan. By
letter the following day, an agent of the board of health
disapproved of the plaintiff's plan.
On January 30, 2020, the town planner, on behalf of the
planning board, issued findings of fact and its decision denying
2 At a public hearing, "all interested persons shall be
given an opportunity to be heard." Shannon v. Building
Inspector of Woburn, 328 Mass. 633, 635 (1952). The plaintiff
asserts that the planning board closed the hearing before the
board of health expressed its disapproval of the plan. However,
at the January 14, 2020, planning board public hearing, the
plaintiff was asked whether he objected to the hearing's closing
and his counsel stated that he did not. Regardless, as stated
below, the planning board's determination that the plan did not
comply with its regulations was a sufficient basis to deny the
plan. See note 5, infra.
2
the plaintiff's application. The planning board reasoned that
the plan did not comply with several of the town's applicable
regulations.3 The planning board concluded that the plan "would
have been detrimental to the general health, safety and welfare
of the residents of the subdivision" and "the abutting and
nearby neighborhoods."4
In November 2023, the parties filed cross motions for
summary judgment in the Superior Court. The judge granted
summary judgment for the defendants, reasoning that the board of
health's disapproval of the plaintiff's plan was a "sufficient
basis for the planning board's denial of the plaintiff's
subdivision plans." The judge also stated a separate basis
supporting summary judgment for the defendants, namely that the
3 For example, the planning board's decision stated that the
plan's "layout is too dense"; the proposed grading for roadways
"is too close to the bordering vegetated wetland . . . to
reliably protect it from impacts"; and "[t]he plan does not
provide an adequate buffer to the existing sewer treatment plant
or to the existing wind turbines."
4 After the planning board issued its decision, but before
the parties filed cross motions for summary judgment, the judge
allowed the parties' joint motion to remand to the planning
board "for consideration of possible settlement." The planning
board held public hearings to review the plaintiff's revised
subdivision plan, but ultimately denied the revised plan and the
matter went back to the Superior Court. Thereafter, the appeal
proceeded in the Superior Court on the plaintiff's original plan
because the plaintiff did not appeal the denial of the revised
plan and did not seek to amend his complaint to reflect such a
change.
3
plaintiff's plan did not comply with the applicable rules and
regulations of the planning board.
Discussion. "The allowance of a motion for summary
judgment is appropriate where there are no genuine issues of
material fact in dispute and the moving party is entitled to
judgment as a matter of law" (quotation omitted). Williams, 490
Mass. at 689. The moving party must demonstrate "that the party
opposing the motion has no reasonable expectation of proving an
essential element of that party's case." See Kourouvacilis v.
General Motors Corp., 410 Mass. 706, 716 (1991). Where, as
here, the parties filed cross motions for summary judgment, we
review the evidence in the light most favorable to the party
whose motion was denied. See Smiley First, LLC v. Department of
Transp., 492 Mass. 103, 108 (2023). "We review a decision on a
motion for summary judgment de novo." Williams, supra at 689.
An applicant of a subdivision plan has the burden to show
that a planning board "acted improperly in disapproving their
subdivision plan." Wine v. Planning Bd. of Newburyport, 74
Mass. App. Ct. 521, 525 (2009). A subdivision plan shall be
approved if it conforms to both the "reasonable rules and
regulations of the planning board" and "the recommendation of
the board of health." Mac-Rich Realty Constr., Inc. v. Planning
Bd. of Southborough, 4 Mass. App. Ct. 79, 84-85 (1976). See
4
G. L. c. 41, § 81M. If the planning board disapproves of a
plan, it "shall state in detail wherein the plan does not
conform to the rules and regulations of the planning board or
the recommendations of the health board or officer." G. L.
c. 41, § 81U. In other words, G. L. c. 41, §§ 81M and 81U
provide a planning board with "no discretion to disapprove a
subdivision plan which has been approved by the board of health
and is in conformance with the reasonable rules and regulations
of the planning board." Musto v. Planning Bd. of Medfield, 54
Mass. App. Ct. 831, 836 (2002).
The plaintiff has failed to demonstrate that the planning
board acted improperly. The plaintiff maintains that the
planning board failed to consider evidence that was submitted to
the planning board prior to its decision that demonstrated his
plan was updated to comply with certain standards. In support,
the plaintiff claims he presented affidavits and other
documentary evidence that addressed the planning board's issues
with the plan and showed he had resolved those issues prior to
the planning board's final decision. We are unpersuaded.
Even if the planning board had the evidence that the
plaintiff asserts it had prior to its vote, that evidence does
not clearly establish that the plan complied with all the
planning board's rules and regulations. The planning board's
5
decision thoroughly listed the rules and regulations with which
the plan does not comply. The plaintiff has not provided how
each specific regulation would be corrected with the evidence he
claims he proffered. Accordingly, the plaintiff had no
reasonable expectation of proving that his plan, as submitted,
complied with the planning board's rules and regulations.5 Thus,
the Superior Court judge properly granted summary judgment for
the defendants.
Judgment affirmed.
By the Court (Singh,
D'Angelo & Hodgens, JJ.6),
Clerk
Entered: July 8, 2025.
5 Based on the record, the planning board had not officially
received disapproval from the board of health until after the
planning board voted to deny the plan. Therefore, the board of
health's disapproval had no bearing on the planning board's
decision and likewise plays no role in our decision.
6 The panelists are listed in order of seniority.
6