PETER CRICONES, trustee, [Note 1] vs. PLANNING BOARD OF DRACUT.

JACOBS, J. The plaintiff appealed to the Superior Court from the denial by the Dracut planning board of his application for an endorsement of approval not required ("ANR"). A judge of that court ordered the entry of a judgment directing the board "to endorse the plaintiff's plan in accordance with the provisions of G. L. c. 41, Section 81P." [Note 2] The board appeals from that judgment. We affirm.

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The plan submitted for ANR endorsement shows a division of the plaintiff's land in Dracut into three parcels, 3-57, 3-57-1, and 3-57-2. [Note 3] These parcels have a common border with two parcels in Pelham, New Hampshire, owned by others. Parcels 3-57-1 and 3-57-2 do not have frontage on a way, and the plan contains notations that each is "not a building lot" and is "to be conveyed to" the owners of the adjacent New Hampshire parcel. For lot 3-57, the plan shows the proposed location of a house with access from a proposed easement across the adjacent New Hampshire parcel. The easement leads to LeBlanc Road (in Pelham, New Hampshire), which becomes Island Pond Road after crossing into Dracut. There it cuts across the western boundary of parcel 3-57, providing about twenty feet of frontage for the parcel in Dracut. Prior to the plaintiff's submission of the plan to the planning board, the Dracut board of appeals granted the plaintiff a variance from the applicable zoning by-law frontage requirement of 175 feet. The lack of sufficient frontage was cited by the planning board as the basis for its denial of the ANR endorsement.

The Superior Court judge determined that the plaintiff's plan "cannot be considered to be a subdivision plan within the meaning of [G. L. c.41,] Section 81L," [Note 4] because parcels 3-57-1

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and 3-57-2 are not buildable lots and that the plan, therefore, is entitled to an ANR endorsement. The board argues that this determination is erroneous because the plan cannot be so endorsed if no lot depicted has adequate frontage. We conclude that the judge's decision is correct.

Anyone who desires to record a plan of land in a city or town in which the subdivision control law (G. L. c. 41, Sections 81K-81GG) is in effect and believes that the plan qualifies for ANR treatment may submit it to the planning board of that city or town pursuant to G. L. c. 41, Section 81P. Section 81P provides that an ANR endorsement "shall not be withheld unless such plan shows a subdivision." For purposes of the subdivision control law, a "subdivision" is defined in G. L. c. 41, Section 81L, as "the division of a tract of land into two or more lots . . . ." See note 4, supra. A "lot" is defined as "an area of land in one ownership, with definite boundaries, used, or available for use, as the site of one or more buildings." G. L. c. 41, Section 81L, inserted by St. 1953, c. 674, Section 7. By expressly disavowing, on the face of the plan, any claim of availability of parcels 3-57-1 and 3-57-2 for building purposes, the plaintiff, in effect, submitted a plan of land that, notwithstanding its division into three parcels, did not constitute a subdivision under the subdivision control law because it did not represent a division of the land into two or more "lots." Bloom v. Planning Bd. of Brookline, 346 Mass. 278, 283-284 (1963). See Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144, 156 (1983) ("The court [in Bloom] reasoned that a division of land into two parcels, one of which clearly could not be used for building under the zoning law, was therefore not a division into two `lots' and, a fortiori, not

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a subdivision"). See also Bobrowski, Handbook of Massachusetts Land Use and Planning Law Section 14.5.4 (1993) ("In Bloom v. Planning Bd. of Brookline, the Supreme Judicial Court created an exemption for those plans depicting only one `lot'").

"[T]he public's right not to be misled by endorsements on recorded plans," Perry v. Planning Bd. of Nantucket, supra, is well protected by the fact that the plaintiff's plan not only depicts two of its three parcels as landlocked and therefore without frontage but also clearly identifies each of those parcels as "not a building lot." See id. at 157. "The indication `Not A Building Lot' is a customary method of stating the deficiency." Bobrowski, supra at 582 n.13.

Given the limited extent of its function when reviewing a single lot plan, the board's concern with the adequacy of the frontage of parcel 3-57 is misplaced. "In acting under Section 81P, a planning board's judgment is confined to determining whether a plan shows a subdivision." Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599, 604 (1980). See Eno & Hovey, Real Estate Law Section 24.3 (3d ed. 1995) ("In exercising its powers under the subdivision control law, a planning board's first determination must be whether or not a plan presented to it shows a `subdivision'. . . . [I]f a plan does not show a `subdivision', a board may -- or rather must -- endorse the plan as not requiring subdivision approval, so that it may be recorded"). Had it been presented with a plan that ostensibly depicted a division of land into two or more "lots," each of which had sufficient frontage on a way so as to place the plan outside of the definition of a subdivision under Section 81L, the board properly could have concerned itself with whether the frontage depicted was actual or illusory. Gifford v. Planning Bd. of Nantucket, 376 Mass. 801, 807-808 (1978). See Corcoran v. Planning Bd. of Sudbury, 406 Mass. 248, 250-251 (1989); Fox v. Planning Bd. of Milton, 24 Mass. App. Ct. 572, 574-575 (1987). Similarly, if the plaintiff's plan had depicted a subdivision rather than what is, in effect, a single lot under the subdivision control law, the board could have addressed the adequacy of the frontage of

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any lot independent of the variance. Seguin v. Planning Bd. of Upton, 33 Mass. App. Ct. 374, 375-376 (1992). [Note 5]

We do not share the board's concern that an ANR endorsement, of itself, imparts "buildable lot" status to parcel 3-57. "An endorsement under Section 81P does not mean that the lots within the endorsed plan are buildable lots." Lee v. Board of Appeals of Harwich, 11 Mass. App. Ct. 148, 152 (1981). See Smalley v. Planning Bd. of Harwich, supra at 603-604; Shea v. Board of Appeals of Lexington, 35 Mass. App. Ct. 519, 522 (1993). Any lot depicted on an endorsed plan remains subject to all pertinent regulatory provisions other than the subdivision control law. See Corcoran v. Planning Bd. of Sudbury, 406 Mass. at 251-252. As contended by the plaintiff, an ANR endorsement may serve merely to permit the plan to be recorded, preliminary to the sale of the unbuildable parcels to the owners of the abutting land. See Smalley v. Planning Bd. of Harwich, supra at 604; G. L. c. 41, Section 81X (regulating the recordation of plans of land in municipalities in which the subdivision control law is in force). See also SMI Investors (Delaware), Inc. v. Planning Bd. of Tisbury, 18 Mass. App. Ct. 408, 411 (1984). Moreover, in the circumstances of a single lot plan with frontage on a public way, there is no occasion for concern with the statutory objective of the subdivision control law of "regulating the laying out and construction of ways in subdivisions providing access to the several lots therein . . . ." G. L. c. 41, Section 81M, inserted by St. 1953, c. 674, Section 7.

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There is no merit to the board's contention that the judge failed to exercise independent judgment. The case was submitted for decision on stipulated facts and accompanying documentary exhibits which are reproduced in our record. Accordingly, we are able to review the case without reliance on any factual "findings" contained in the judge's decision.

Judgment affirmed.

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