WENDALL BEARSE v. SHEILA R. SARTELL, WILLIAM D. SARTELL, WILLIAM G. SARTELL, KERRIN O'SHEA a/k/a KERRIN SARTELL, and THE TOWN OF BILLERICA PLANNING BOARD

Plaintiff filed his unverified Complaint on August 16, 2007, appealing pursuant to G.L. c. 41, § 81BB the approval by Defendant Town of Billerica Planning Board (the “Planning Board”) of a definitive subdivision plan for Sartell Estates filed by Defendants Sheila R. Sartell (“Sheila”), William D. Sartell (“William D.”), William G. Sartell (“William G.”), and Kerrin O’Shea a/k/a Kerrin Sartell (“Kerrin”) (together, the “Sartells”) and seeking a determination that he be granted a right in the subdivision road or that the Sartells’ rights in an adjoining right of way be deemed abandoned. The Sartells filed their Answer on October 3, 2007, and the Planning Board filed its Answer on October 4, 2007. A case management conference was held on October 23, 2007.

On December 31, 2007, the Sartells filed their Motion for Partial Summary Judgment, together with supporting memorandum, Concise Statement of Material Facts, Appendix, and Affidavit of Milton H. Kinney. Plaintiff filed his Opposition to the motion on January 30, 2008, along with a supporting brief, Concise Statement of Additional Material Facts, and Appendix. A hearing was held on the summary judgment motion on May 12, 2008, and the matter was taken under advisement. On May 21, 2008, the parties filed a Stipulation and Waiver, dismissing Counts II and III and all portions of Count I of the Complaint except the issue of Lot 3A’s (as hereinafter defined) frontage.

The following facts are not in dispute:

1. Plaintiff owns property located at 61 Baldwin Road, Billerica, MA.

2. Sheila and William D. own property located at 57 Baldwin Road, Billerica, MA (“57 Baldwin Road”). 57 Baldwin Road is shown as Lot 3A on a plan titled “Sartell Estate Definitive Subdivision Lotting Plan in Billerica, MA” dated March 20, 2007 (the “Subdivision Plan”). [Note 1] 57 Baldwin Road has its frontage and access on Baldwin Road. A portion of Lot 3A, a portion of Lot 5, and the subdivision road (“Sartell Circle”) are shown as Parcel 34-2 on Billerica’s Assessor’s Map 63 (“Map 63”).

3. Kerrin and William G. own property located at 55 Baldwin Road, Billerica, MA (“55 Baldwin Road”). 55 Baldwin Road is shown as Lot 4A on the Subdivision Plan. 55 Baldwin Road has its frontage (150 feet) and access on Baldwin Road. Lot 4A, a portion of Lot 5, and a portion of Lot 3A are shown as Parcel 34-3 on Map 63.

4. The Subdivision Plan creates a new Lot 5 which has access and frontage on Sartell Circle. Plaintiff’s property abuts and is located North of Sartell Circle and Lot 5 and abuts and is located East of Lot 5.

5. On May 16, 2007, the Sartells submitted the Subdivision Plan to the Planning Board. The Subdivision Plan provided access on the subdivision road (Sartell Circle) for only one lot (Lot 5).

6. On July 23, 2007, the Planning Board approved the Subdivision Plan. Addendum A to the Certificate of Approval, listing the conditions of approval, stated, in part:

10. Neither the current owners nor any successor owners of any of the lots shall at anytime request that Sartell Circle be laid out or accepted as a public way in the Town. The road as proposed shall remain a private subdivision in perpetuity.

. . . .

14. Sartell Circle is adequate to serve one residence only. Any further use shall be expressly approved by the Planning Board after the requisite public hearing.

On July 27, 2007, the Planning Board filed its certificate of approval with the Billerica Town Clerk.

7. Section 7.K (Dimensional Table) of the Zoning By-laws of the Town of Billerica (the By-laws”) [Note 2] requires a minimum of 150 feet of lot frontage in the zoning district where the subdivision (Sartell Estates) is located (the Village Residence Zoning District).

8. As shown on the Subdivision Plan, Lot 3A is a corner lot with 234.44 feet of frontage on Sartell Circle and 130.15 feet of frontage on Baldwin Road. The Subdivision Plan shows that Lot 3A benefits from an additional 31.45 feet of frontage along Baldwin Road when the lot’s front lot line on Baldwin Road is extended to an intersecting point with Sartell Circle’s extended boundary line.

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The sole issue in the Sartells’ Motion for Partial Summary Judgment is whether the Planning Board interpreted the frontage requirement of the By-laws correctly relative to Lot 3A. [Note 3] Section 7.B.2 of the By-laws provides that

if a corner lot has its corner bounded by a curved line connecting other bounding lines which, if extended, would intersect, the area and frontage shall be computed as if such bounding lines were so extended.

A schematic drawing in the same section of the By-laws confirms this language. The definition of “Frontage” in the By-laws also provides for the extension of lot lines, as follows:

An uninterrupted distance measured between side lot lines that runs along the street abutting the lot. In the case of a corner lot, frontage shall be on both of the streets that abut the lot. The frontage of a corner lot shall be the distance between a side lot line and the intersection of street lines or of street lines extended. . . .

Lot 3A is located at the intersection of Baldwin Road, a public road, and Sartell Circle, the subdivision private road. The Sartells and the Planning Board, relying on the Subdivision Plan and the By-laws, determined a frontage of 161.6 feet on Baldwin Road for Lot 3A; the Subdivision Plan shows that if an extension of the boundary lines of the corner lot intersection were added, an additional 31.45 feet of frontage along Baldwin Road would be created. The Affidavit of Milton H. Kinney, the Inspector of Buildings of the Town of Billerica, confirms this analysis.

Plaintiff argues that the Subdivision Plan shows a frontage for Lot 3A of only 130.15 feet along Baldwin Road (without the extension of lines allowed by the By-laws). He relies upon the definition of a “Street, Road, or Way” in the By-laws, which provides, in part: “[A] way that is shown on a plan theretofore approved and endorsed in accordance with the Subdivision Control Law . . . . Street, road, and way are synonymous terms.” There are related By-laws provisions. The definition of a “Street Line” in the By-laws provides: “The boundary of a street right-of-way or layout.” Section 7.B.9 of the By-laws provides that “A corner lot or through lot shall have access through one frontage only.” Section 7.C.1 of the By-laws provides that “[a]ccess to a lot must be over the legal frontage.”

Plaintiff’s main argument is that Sartell Circle is not technically a “street” as defined in the By-laws because it is not “shown on a plan theretofore approved and endorsed in accordance with the Subdivision Control Law.” Plaintiff refers to G. L. c. 41, § 81V, which states that “after the expiration of twenty days without notice of appeal . . . or if appeal has been taken after the entry of a final decree of the court sustaining the approval of such plan, the planning board shall cause to be made upon the [approved] plan a written endorsement of its approval.” Relying on such language, Plaintiff asserts that, because the Subdivision Plan is not yet “endorsed,” Sartell Circle is not a “street, road, or way,” and the By-laws’ mechanism to calculate frontage on a corner lot does not apply to Sartell Circle. [Note 4] In other words, Plaintiff reasons that the legal status of Sartell Road (i.e. not a “street”) is fatal to Lot 3A’s frontage calculation. This court finds Plaintiff’s argument unpersuasive. Sartell Circle is a subdivision road approved by the Planning Board, subject to this appeal. The appeal has been narrowed to one single issue, frontage of Lot 3A on Baldwin Road. The validity of Sartell Circle is not being challenged. The issue of frontage on Baldwin Road is, in actuality, an ANR (approval not required) issue, since the frontage of Lot 3A is on an existing public way that is not being questioned as proper access. Moreover, as a practical matter, this court is not swayed that the Subdivision Plan must be final (i.e. not in the process of appeal) prior to utilizing the By-laws method to calculate frontage as applied to Lot 3A. To suggest otherwise would result in inefficient and piecemeal subdivision permitting. If the Subdivision Plan approval is overturned on appeal, Lot 3A will revert back to Parcel 34-2, which has adequate frontage. If the Subdivision Plan is upheld, then the intersection of Sartell Circle and Baldwin Road will not be an issue.

Plaintiff also contends that, even if Sartell Circle is a street, it is a private way which only provides access to Lot 5, and therefore can’t be used for frontage computation for Lot 3A. Lot 3A, a corner lot, has frontage on both Baldwin Road and Sartell Circle. The By-laws state that Lot 3A can use only one frontage, and that such frontage must be a legal frontage. The frontage for Lot 3A is on Baldwin Road, a public road. Lot 3A has the legal right to use Baldwin Road. The fact that the By-laws provide that the boundary line of Baldwin Road can be extended because it intersects with Sartell Circle has no bearing on whether Lot 3A can use Sartell Circle for access. The extension right is given by the By-laws to benefit Lot 3A solely because it is a corner lot, not because it has a legal right to use Sartell Circle. The extension of 31.45 feet of frontage is on Baldwin Road, not on Sartell Circle. Lot 3A is not relying on any footage or frontage on Sartell Circle and will not use Sartell Circle as access.

Finally, the Sartells argue that the Planning Board is entitled to deference in its interpretation of the By-laws and note that the Building Inspector, in his affidavit, confirms that Lot 3A has adequate frontage under the By-laws. In the case at bar, the local building inspector was upheld by the Planning Board. Local agencies are due some deference in their interpretation of local zoning bylaws. See Manning v. Boston Redevelopment Auth., 400 Mass. 444 , 453 (1987) (“We give substantial deference to the construction placed on a statute or an ordinance by the agency charged with its administration.”). Additionally, certain determinations by a building inspector warrant respect. Pinecrest Village, Inc. v. MacMillan, 425 Mass. 70 , 73 (1997).

Based on the foregoing, I find that Lot 3A has adequate frontage on Baldwin Road. As a result, I ALLOW the Sartells’ Motion for Partial Summary Judgment.

Judgment to enter accordingly.