ROBERT P. BIGELOW v. RICHARD OSNOSS, RUSSELL WALTON, JOHN FLENDER, WILLIAM MEEGAN, MITCHELL POSIN, JANET WEIDNER, and TIMOTHY LASKER, as they are members of the Planning Board of the Town of Chilmark, and THE PLANNING BOARD OF THE TOWN OF CHILMARK

This is an appeal under G. L. c. 41 § 81BB, from an action of the Chilmark Planning Board (Board), refusing to endorse under G. L. c. 41, § 81P, a March 26, 2007 plan entitled “Plan of Land in Chilmark, Mass. Prepared for Robert P. Bigelow by Schofield, Barbini & Hoehn, Inc. (Plan). The Plan shows a division of Plaintiff’s property into two unbuildable lots.

On May 30, 2007, Plaintiff commenced this action by filing a verified complaint, later amended to include three counts. In counts 1 and 2 of the Amended Complaint, Plaintiff seeks to annul the action of the Board, reflected in two letters to Plaintiff, dated May 15 and 16, 2007. In count 3, Plaintiff seeks a declaration that the Plan has been constructively endorsed as not requiring approval under the subdivision control law.

On December 10, 2007, Defendant moved for summary judgment on all counts of Plaintiff’s Amended Complaint, and Plaintiff filed a cross-motion. Prior to the summary judgment hearing, Plaintiff dropped Count 3, thereby removing from this case the Plaintiff’s request for a declaration that the Plan had been constructively approved.

The parties attended a summary judgment hearing on February 12, 2008.

The summary judgment record establishes the following undisputed material facts. [Note 1]

1. Plaintiff, Robert P. Bigelow, resides at 22 Grove Street, #30, in Winchester, Massachusetts, and is the record owner of the property in question in Chilmark.

2. Defendants were the members of the Planning Board of the Town of Chilmark at all times material to this action. [Note 2]

3. Plaintiff owns a parcel of land shown as Parcel 123 on the Chilmark Assessor’s Map 22, consisting of approximately 52,319 square feet, bounded on the north by Crab Creek, on the east and west by land of others, and on the south by the Atlantic Ocean (Locus).

4. The subdivision control law is in effect in the Town of Chilmark, and has been at all times during this action.

5. On April 12, 2007, Bigelow, acting through Douglas Hoehn, submitted the Plan to the Board under G. L. c. 41 § 81P. The Plan showed a division of land into two parcels designated Lot 1 and Lot 2, containing approximately 34,886 square feet and 17,433 square feet, respectively. A note on the face of the Plan provides “Lots 1 & 2 are not buildable lots.”

6. The Board discussed the plan at three meetings, on April 9, 2007, April 23, 2007, and May 14, 2007. The Board voted at the May 14, 2007 meeting to deny the requested ANR Endorsement.

7. On May 15, 2007, the Board sent a letter via facsimile to Hoehn that the Plan had not been endorsed. The next day, May 16, 2007, the Board forwarded a document titled “Determination That Subdivision Approval is Required,” confirming that the Board had denied ANR Endorsement of the Plan. Both the May 15, 2007, and the May 16, 2007, documents made reference to a declaration by Bigelow dated December 16, 1988, recorded in Dukes County Registry of Deeds, in Book 513, at Page 671, which “relinquished the right to further subdivide the land…” (1988 Declaration)

Summary judgment is granted where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Comm’r of Correction, 390 Mass. 419 , 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specifics facts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment.” Id. at 17. While there are a few minor factual issues in dispute, none are material to the disposition of the motions before the court.

This dispute revolves around two questions of fact and law. First, whether the Plan shows a subdivision. Second, a planning board may consider the existence of private restrictions affecting land shown on a plan when the Board considers whether to give an ANR Endorsement.

Whether the Plan Shows a Subdivision

The Supreme Judicial Court has stated that the principal purpose of the subdivision control law is to protect the health and welfare of communities by regulating the laying out and construction of ways. Dolan v. Board of Appeals of Chatham, 359 Mass. 699 , 701 (1971). When a proposal shows a subdivision, the subdivision control law authorizes a planning board to scrutinize the proposal in detail to ensure the safety of the public. However, when presented with an application for ANR Endorsement under G. L. c. 41 § 81P (§ 81P), a planning board’s sole function is to determine whether the plan shows a subdivision. Smalley v. Planning Board of Harwich, 10 Mass. App. Ct. 599 (1980). If it does not, the board is required to endorse the plan. A proposal under §81P is generally routine, and endorsement will be made without public hearing, unless such plan shows a subdivision. Id. at 604.

In Smalley, 10 Mass. App. Ct. at 604, the Appeals Court defined the role of a planning board when evaluating a request for ANR endorsement. In Smalley, the Harwich Planning Board rejected an application by the plaintiff to divide her Harwichport property into two lots. Id. The Appeals Court upheld the Superior Court’s reversal of the Harwich Planning Board denial of an ANR Endorsement. Id. at 605. In so doing, the court held that when acting under an §81P application, a planning board’s judgment is confined to determining whether a plan shows a subdivision. Id. at 604. Thus, consistent with Smalley, this court must determine, as an initial matter, whether the Plan shows a subdivision, as that term is defined under the subdivision control law.

Under G. L. c. 41, § 81L, “[s]ubdivision shall mean the division of a tract of land into two or more lots . . .” (emphasis added). The definition section of the subdivision control law instructs that a “[l]ot shall mean 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 §81L. In Bloom v. Planning Board of Brookline, 346 Mass. 278 (1963), the dispute involved a division of land into two parcels, one being much larger than the other. The Court made clear that “lot” for purposes of the definition of the word “subdivision” referred to in G. L. c. 41, § 81L means “an area, used or available for use, as the site of one or more buildings,” the definition set forth in the statute. Here, the Board argues the that the operative definition of “lot” is the Chilmark Zoning by-law, which, it argues, is not inconsistent with the purpose of the subdivision control law.

This court need not inquire as to the consistency of the Chilmark by-laws definition with the purpose of the subdivision control law because under Bloom, the definition of “lot” set forth in the subdivision control law controls this court’s inquiry. Therefore, the fact that the Chilmark Zoning by-laws may permit certain “uses” on Locus does not transform lots 1 and 2 on the Plan into “lots” under the subdivision control law because the lots not “used, or available for use, as the site of one or more buildings.” They are not so available for such use because the Plan on its face, provides that they are not buildable lots. It is the fact that the lots shown on the Plan are not buildable that compels the conclusion that the Plan does not show a subdivision. It therefore should be endorsed with an ANR Endorsement.

In Cricones v. Planning Board of Dracut, 39 Mass. App. Ct. 264 , 265 (1995), the plaintiff wished to divide a parcel into three lots, of which two were labeled non-buildable. The Appeals Court upheld the trial court’s reversal of the planning board’s denial of an ANR endorsement. Id. at 269. Consistent with Bloom, the Appeals Court reasoned that since the proposed division of the parcel did not show the division of land into two or more lots, the plan did not show a subdivision and therefore the board was required to give its endorsement. Id. at 267. Just as in Cricones, the Plan in this case clearly states that both Lot 1 and Lot 2 are non-buildable. The Board argues, pursuant to the definition of “subdivision” under G. L. c. 41, § 81L, that in order to qualify for ANR Endorsement all lots shown must have frontage on a way. As was discussed by the Court in Cricones, concerns regarding the adequacy or existence of frontage come secondary to a planning board’s threshold determination as to whether the plan shows a subdivision. Id. Since under the facts presented here, the face of the Plan clearly states that Lot 1 and Lot 2 are non-buildable lots, concerns about adequacy of frontage should not factor into the Board’s decision.

Restrictions On Deed

As stated above, when acting under §81P, a planning board’s judgment is confined to determining whether a plan shows a subdivision. Smalley 10 Mass. App. Ct. at 604. In Smalley, the Court ruled that the Harwich Planning Board was not authorized to use potential zoning complications as a basis for denial of an ANR endorsement. Id. In this case, the Board contends that they properly relied upon Plaintiff’s 1988 Declaration as a reason for denial of the ANR Endorsement. This court finds the ruling in Smalley instructive to the facts in this case. It was not within the Board’s authority to consider whether Plaintiff had an enforceable agreement with the Board of Assessors that prevents him from dividing Locus into two parcels or lots. The Board’s inquiry is limited to what is shown on the Plan. If the Assessors, or any other parties think they have enforceable rights against Plaintiff, they may seek to enforce those rights, but the Board has no standing to do so in the context of a request for an ANR Endorsement.

Plaintiff’s motion for summary judgment is granted, and Defendants’ motion is denied. Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: July 11, 2008