ROBERT H. STURDY & another [Note 1] vs. PLANNING BOARD OF HINGHAM (and a companion case [Note 2]).

DREBEN, J. Whether the plaintiffs' proposed plan dividing land abutting on Side Hill Road in Hingham is entitled to the endorsement "approval not required" (ANR) under G. L. c. 41, Section 81P, depends on whether Side Hill Road is a

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public way [Note 3] and whether the access the way affords is illusory.

The judge found that the road has been a public way since 1737, but also found that, in its present condition, it did not satisfy the requirement of safe access for emergency and other vehicles. For this reason, he at first held that the planning board had the "right to determine whether sufficient access to the lots on the plan exist[s] as part of the approval process of an ANR plan . . . . [and that its decision not to give the ANR endorsement] did not exceed its authority."

The plaintiffs moved for a new trial and, relying on G. L. c. 84, Sections 1 [Note 4] & 7, brought a second action, this time seeking relief in the nature of mandamus against the town to require it to repair and make Side Hill Road reasonably safe and provide access for emergency vehicles. Following consolidation of the cases, the judge, citing Corcoran v. Planning Bd. of Sudbury, 406 Mass. 248 (1989), and Long Pond Estates, Ltd. v. Planning Bd. of Sturbridge, 406 Mass. 253 (1989), decisions which were issued subsequent to the original judgment, reconsidered his ruling and held that the plaintiffs were entitled to an ANR endorsement. Once they had shown the existence of a public way and the "practicality of access upon a public way . . . [they were, the judge decided,] entitled to the ANR endorsement, notwithstanding any deficiencies in the way." An amended judgment was entered annulling the decision of the board and declaring, "assuming all other criteria have been satisfied," the plan is entitled to endorsement.

In the action seeking relief in the nature of mandamus, the judge allowed the town's motion for summary judgment, ruling

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that such relief was not appropriate where, as here, no specific criteria exist as to the standard to which the public way must conform. The plaintiffs appealed from the judgment for the town denying mandamus, and the planning board appealed from the judgment annulling its decision. We affirm both judgments.

1. Status of Side Hill Road for purposes of G. L. c. 41, Section 81L. [Note 5] There are a number of methods by which a way can become a public way. See Fenn v. Middleborough, 7 Mass. App. Ct. 80, 83-84 (1979). Prior to St. 1846, c. 203, Section 1, one method was by a permanent and unequivocal dedication by the owner to public use, coupled with an acceptance by the public. Longley v. Worcester, 304 Mass. 580, 586-589 (1939). Fenn v. Middleborough, 7 Mass. App. Ct. at 83-84.

The judge found that on March 30, 1737, the town voted to accept Side Hill Road as a public way and that, at a meeting in 1738, the proprietors [Note 6] unanimously agreed to the town's acceptance of the way known as Side Hill Road and also voted that they need not be further compensated for the taking. Although the planning board, emphasizing the testimony of its expert, argues that the judge's finding is clearly erroneous, a review of the records before us [Note 7] does not support that conclusion. The town record of the 1737 Hingham vote, set out in relevant part in the margin, [Note 8] coupled with the proprietors'

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vote (see note 7, supra) satisfies the pre-1846 requirement of unequivocal dedication by the owners and acceptance by the town. See Longley v. Worcester, 304 Mass. at 586-589; Fenn v. Middleborough, 7 Mass. App. Ct. at 84. The judge was not required to accept the conclusions of the planning board's expert and could also find additional confirmation of the public character of the way in subsequent records of the town. [Note 9]

2. Adequacy of access. Citing Gifford v. Planning Bd. of Nantucket, 376 Mass. 801, 808-809 (1978), Hrenchuk v. Planning Bd. of Walpole, 8 Mass. App. Ct. 949 (1979), and Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144 (1983), the planning board claims that it may consider the adequacy of access to the lots, see Hutchinson v. Planning Bd. of Hingham, 23 Mass. App. Ct. 416, 420-421 (1987), and that the judge in his original findings, set forth in the margin, [Note 10] confirmed that the access was, indeed, inadequate. A more accurate formulation is that a planning board may withhold the ANR endorsement (where the tract has the required frontage on a public way) only where the access is "illusory in fact." Corcoran v. Planning Bd. of Sudbury, 406 Mass. at 251, and Long Pond Estates v. Planning Bd. of Sturbridge, 406 Mass. at 255, quoting from Fox v. Planning

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Bd. of Milton, 24 Mass. App. Ct. 572, 574 (1987). Corcoran v. Planning Bd. of Sudbury, 406 Mass. at 251, citing Gallitano v. Bd. of Survey & Planning of Waltham, 10 Mass. App. Ct. 269, 273 (1980), reiterates that Gifford v. Planning Bd. of Nantucket, 376 Mass. at 808-809, is the exceptional case and was not intended to broaden significantly the powers of planning boards under G. L. c. 41, Section 81L.

Deficiencies in a public way are insufficient ground for denying the endorsement. The ANR endorsement for lots fronting on a public way, provided for in G. L. c. 41, Section 81L (note 3, supra), is a legislative recognition that ordinarily "lots having such a frontage are fully accessible, and as the developer does not contemplate the construction of additional access routes, there is no need for supervision by the planning board on that score." Gifford v. Planning Bd. of Nantucket, 376 Mass. at 807. Moreover, since municipal authorities have the obligation to maintain such ways, there is already public control as to how perceived deficiencies, if any, in such public ways are to be corrected. As indicated in part 3 of this opinion, public officials can bring a municipality to task if it fails to perform its road maintenance duties.

3. Mandamus against the town. The judge, as noted earlier, based his decision to deny discretionary relief in the nature of mandamus on the absence of any specific criteria for maintaining a public way. As stated in MacDonald v. Boston, 318 Mass. 618, 619 (1945), and Green v. Wilmington, 339 Mass. 142, 144 (1959), the "standard of duty [to keep a way in repair] is not an absolute or inflexible one, but should be given an application which is related to the character of the way and to the kind and amount of travel at the location of the alleged defect." The judge correctly noted that the "width, surface, drainage, ingress and egress and grades of any public way will vary dependent upon the usage of said way by travelers in a particular community." Much discretion must be afforded the town in this regard, particularly because of the heavy financial pressures on local government, cf. McCarthy v. Street Commrs. of Boston, 188 Mass. 338,

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341 (1905), and we see no abuse of discretion in the judge's declining to issue an order to the town.

The parties assumed that abutters, as well as injured persons who come within G. L. c. 84, Section 15, [Note 11] have a private right of action against a municipality failing to make repairs. We do not reach the question but note that the validity of that assumption is not clear.

Under G. L. c. 84, not only injured persons, but also certain public officials are charged with making sure the town abides by its obligations. The Commonwealth, pursuant to G. L. c. 84, Section 22, [Note 12] which imposes criminal penalties, may bring an action against a town, see Commonwealth v. Newburyport, 103 Mass. 129 (1869), and, in addition, under G. L. c. 84, Section 7, [Note 13] surveyors of highways and road commissioners have the burden to see that the town performs its duty of repair. These specific remedies afforded by the statute suggest that an additional private remedy for abutters is

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not implied. There appears here no special legislative concern for an identifiable interest of a group of which the plaintiff is a member but rather a concern for travelers and the public generally. Dinsky v. Framingham, 386 Mass. 801, 805-810 (1982). Ludlow Educ. Assn. v. Ludlow, 31 Mass. App. Ct. 110, 120 (1991). The cases cited by the plaintiffs are inapposite, as they either involve contractual obligations, e.g., Aspinwall v. Boston, 191 Mass. 441, 447-448 (1906), or different statutes. We have been directed to no case permitting an abutter to require a municipality to repair a street under G. L. c. 84, Section 1. [Note 14] But see Lynch v. Groton, 11 Mass. App. Ct. 1008 (1981).

We see no error in the denial of mandamus or a judicial declaration of the town's duties, [Note 15] or, as previously indicated, with the conclusion that an ANR endorsement is required.

Judgments affirmed.