CUMBERLAND FARMS INC v. PLANNING BOARD OF WEST BRIDGEWATER

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Appeals Court of Massachusetts.

CUMBERLAND FARMS, INC. v. PLANNING BOARD OF WEST BRIDGEWATER.

No. 04-P-970.

Decided: August 16, 2005

Maureen A. Lee, Attleboro, for the defendant. Richard C. Dailey, West Bridgewater (Amy L. Hanson with him) for the plaintiff.

The judge correctly reversed the action of West Bridgewater's planning board refusing to endorse the plaintiff's “perimeter plan” under G.L. c. 41, § 81P, as one not requiring approval under the Subdivision Control Law. (The parties refer to the plan as a “perimeter plan”;  it does, however, alter boundary lines by consolidating several lots owned by the plaintiff into a single lot.)   The plaintiff acknowledges that the plan was submitted to forestall application of a proposed zoning provision prohibiting gasoline service stations in the zoning district by invoking the three-year zoning freeze under G.L. c. 40A, § 6. The plaintiff's motivation, however, was irrelevant to the decision before the board, Long v. Board of Appeals of Falmouth, 32 Mass.App.Ct. 232, 236, 588 N.E.2d 692 (1992);  Bisson v. Planning Bd. of Dover, 43 Mass.App.Ct. 504, 508, 684 N.E.2d 7 (1997);  Kindercare Learning Centers, Inc. v. Town of Westford, 62 Mass.App.Ct. 924, 925, 818 N.E.2d 594 (2004), and the argument that perimeter plans, because they do not contain new lines indicating a division of land, are ineligible for submission and endorsement under § 81P flies in the face of decades of contrary practice.   See, e.g., Cape Ann Land Dev. Corp. v. City of Gloucester, 371 Mass. 19, 20-23, 353 N.E.2d 645 (1976);  Wolk v. Planning Bd. of Stoughton, 4 Mass.App.Ct. 812, 347 N.E.2d 700 (1976);   Samson v. San-Land Dev. Corp., 17 Mass.App.Ct. 977, 978, 458 N.E.2d 1201 (1984);  Stampfl v. Zoning Bd. of Appeals of Norwood, 33 Mass.App.Ct. 354, 355-356, 599 N.E.2d 646 (1992);  Reagan v. Planning Bd. of Braintree, 37 Mass.App.Ct. 956, 957 & n. 2, 642 N.E.2d 1054 (1994);  Stefanick v. Planning Bd. of Uxbridge, 39 Mass.App.Ct. 418, 419, 657 N.E.2d 475 (1995).

Judgment affirmed.

RESCRIPT.