SUZANNE M. LUSSIER v. MARK MUNGEAM, RICHARD VANDEN BERG, LINDA BROWN, ROY SWENSON, ERNEST MARKES, JR., EBEN CHEESEBOROUGH, and DAVID ST. GEORGE, as they are members of the TOWN OF DOUGLAS PLANNING BOARD

This case comes before the Court on motion of the Defendant Town of Douglas Planning Board (Defendant Planning Board) for summary judgment. The action underlying this motion is an appeal of the decision of the Defendant Planning Board to deny an endorsement as “approval not required” (ANR) of a plan of land submitted by Plaintiff under the Subdivision Control Law. Through this motion, the Defendant contends that its denial of the ANR was required by law because the road that provides frontage to the proposed lot is not depicted on the town’s official map and was not a “way in existence” at the time the Subdivision Control Law was adopted by the Town of Douglas (Douglas).

Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews “the evidence in the light most favorable to the nonmoving party.” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002). In the present case, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and therefore, this case is proper for summary judgment.

The Court summarizes the relevant undisputed facts of the case as follows. Suzanne M. Lussier, Plaintiff, owns several contiguous parcels of land between Yew Street and Maple Street in Douglas, as depicted as Lot 18 on Assessors’ Map 194, Lot 4 on Assessors’ Map 217, and Lots 3 and 4 on Assessors’ Map 220 (the Property). On or about June 9, 2008, the Plaintiff submitted a plan entitled “Division of Land off Maple Street, Douglas, Massachusetts, Owned by Suzanne M. Lussier” (the Plan) to the Defendant Planning Board for endorsement, pursuant to G.L. c. 41, § 81P. This Plan shows the Property divided into four parcels. It depicts a proposed new building lot (labeled “Lot 1”) comprised of “Parcel A” and a portion of “Parcel B.” It is admitted by the Plaintiff, and the Plan demonstrates, that Lot 1 is intended to be a building lot. Lot 1 is not labeled “Not a Building Lot” as the other parcels on the Plan are, building set-back lines are shown on Lot 1, and stated on the Plan is that its purpose is to create a 4.16 ± acre lot. Lot 1 is shown as having 251 feet of frontage on an unnamed “private way” made up of “Parcel C” and “Parcel D.” This road extends off of Maple Street and provides the only frontage and access to Lot 1. The land shown as “Remaining Land of Suzanne M. Lussier” is a “lot” as defined by G.L. c. 41, § 81L because it is used as a site for buildings, is in one ownership, and has definite boundaries. However, the “Remaining Land of Suzanne M. Lussier,” as well as Parcels “C” and “D,” are labeled “Not a Building Lot.”

By letter dated August 21, 2009, the Defendant Planning Board declined to endorse the ANR plan for the following four reasons:

1) The Applicant has not adequately demonstrated that the Road from which lot frontage is claimed was a way in existence when the Subdivision Control Law became effective in the Town of Douglas.

2) The condition of the Road from which lot frontage is claimed is such that it does not have suitable width, grade or construction to provide safe, practical access to the proposed lot.

3) The Road providing frontage for the proposed lot is not on the Town of Douglas Official Map, and thus the lot is incorrectly designated as buildable.

4) The plan does not show a so-called “single-lot” plan because the “remaining land” of the applicant depicted on the plan contains a buildable lot, and thus the plan shows a division of land into two lots.

The road to Lot 1 is not a public way, is not shown on any plan approved under the Subdivision Control Law, and is not depicted on the official map of the Town of Douglas, entitled “Douglas, Massachusetts: Street Index,” adopted on January 12, 1976.

The two issues before the Court on the motion are:

1) Was the private way, providing access to Lot 1, a “way in existence” as of the effective date of the Subdivision Control Law?

2) Did the Planning Board act within its authority in withholding ANR endorsement of the Plan when Lot 1 is not buildable because the road on which it fronts is not depicted on the official map of the Town of Douglas?

The private way was not a “way in existence” at the time the Subdivision Control Law became effective in the Town of Douglas.

The subdivision of land must be approved by the planning board pursuant to the Subdivision Control Law, G.L. c. 41, §§ 81K-81GG. Section 81L defines a “subdivision” as the “division of a tract of land into two or more lots.” The same section also defines “lot” as “an area of land in one ownership, with definite boundaries, used, or available for use, as the site of one or more buildings.” This section excludes from the definition of “subdivision” the division of a tract of land into two or more lots “if, at the time when [the division] is made, every lot within the tract so divided has frontage on (a) a public way…, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the need of vehicular traffic in relation to the proposed use of the land….” As noted above the parties do not dispute that the road in question is not a public way and is not shown on a plan that has been approved or endorsed under the subdivision control law. Therefore, the only grounds the Plaintiff has for endorsement pursuant to G.L. c. 41, § 81P is that the new lot has frontage on a “way in existence” at the time the Douglas Subdivision Control Law took effect.

Section 81N of G.L. c. 41 defines the process a town or city must follow to adopt the Subdivision Control Law. For those towns and cities that did not have an existing planning board as of January 1, 1954, the law is adopted when the town or city establishes a planning board under G.L. c. 41, § 81A unless, at that same time, by vote of city council or town meeting, the city or town votes not to accept the provisions of the subdivision law. However, this same section states that the law is not effective until the planning board notifies the Register of Deeds and the Recorder of the Land Court that the law has been adopted, until the planning board has adopted the rules and regulations provided in G.L. c. 41, § 81Q, and until the planning board has furnished the Register of Deeds and the Recorder of the Land Court with a copy of the vote, certified by the city or town clerk, of the meeting under which the Subdivision Control Law was adopted and a copy, certified by the city or town clerk, of the rules and regulations adopted.

The Subdivision Control Law does not define “way in existence” but the case law does provide some guidance. First, the Land Court has held that that a “way in existence” must exist on the ground at the time the Subdivision Control Law takes effect in a given community; that is, a “paper” road depicted on a map or plan is not sufficient to be considered a “way in existence.” Gould v. Planning Bd. of Pembroke, 7 LCR 78 , 80 (1999) (Misc. Case. No. 237217) (Green, J.); Coolidge Construction Co. Inc. v. Planning Bd. of the Town of Andover, 7 LCR 75 , 77 (1999) (Misc. Case. No. 238169) (Scheier, J.). The purpose of the Subdivision Control Law, as stated in G.L. c. 41, § 81M, is to ensure the protection of the health and safety of inhabitants of cities and towns by regulating the construction of ways and ensuring that those ways provide adequate access and a means for safe and convenient travel. Section 81L excludes divisions of a tract of land into lots in three instances ((a) frontage on a public way, (b) frontage on a way shown on a plan approved under the Subdivision Control Law, and (c) on a way in existence at the effective date of the Subdivision Control Law) because, if one of those conditions is satisfied, it is assumed that the way already provides sufficient access and means for safe travel. Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 , 807 (1978). Therefore, a “way in existence” as contemplated in G.L. c. 41, § 81L must be referring to a way that actually allows for vehicular access to the tract of land being divided.

Although the question of the existence of the way at the effective date of the Subdivision Control Law is a separate inquiry than the current adequacy of the way in terms of grade, width, and construction, the adequacy of the way at the effective date of the Subdivision Control Law is a component of the first inquiry to the extent that the way was adequate to allow vehicle travel. For example, in Retig v. Planning Bd. of Rowley, the court found that a way in question was not “in existence” because it did “not rise even to the dignity of a rough country road, broken and sunken in spots.” 332 Mass. 476 , 481 (1955). In 1999, the Land Court, relying on the language in Retig, stated that a way in question was not a “way in existence” because, “[t]hough the way existed in some form on the ground, plaintiffs have not shown that it was in use in any meaningful way as a means of vehicular conveyance” at the time the Subdivision Control Law came into effect. Musto v. Medfield Planning Bd., 7 LCR 281 , 285 (1999) (Misc. Case. Nos. 229087, 229690) (Green, J.). Therefore, the relevant inquiry in this case is whether the road providing access to Lot 1 existed “on the ground,” provided sufficient access to the tract of land by vehicle, and that it was in use by vehicles at the time the Subdivision Control Law went into effect.

The Defendant Planning Board asserts that Douglas adopted the Subdivision Control Law in 1970 at the February 14 Town Meeting as shown in Article 23 of the Minutes of that meeting. Article 23 states that the Town voted to establish a planning board and accepted the provisions of the Massachusetts General Laws, Chapter 41, Section 81B through 81GG inclusive (G.L. c. 41, §§ 81K-81GG is the Subdivision Control Law). The Plaintiff denies the fact that the Subdivision Control Law was in effect as of February 14, 1970 because the Defendant Planning Board has not demonstrated that the Register of Deeds and Recorder of the Land Court were notified of the adoption, nor provided with the required certified copies of the required documents at that time, or at any point in time thereafter. While the Plaintiff clearly recognizes the existence of the Subdivision Control Law since she has sought ANR approval of her Plan pursuant to it, establishing the effective date of the Subdivision Control Law is necessary to determine whether the Way was a “way in existence” on that date. The summary judgment record does not conclusively determine the date on which the Subdivision Control Law went into effect in Douglas. However, taking judicial notice of the records of the Recorder of the Land Court, it appears that the Subdivision Control Law took effect in Douglas on June 12, 1970. Regardless, it is clear that the Subdivision Control Law was in effect prior to the spring of 2007 when the Plaintiff made improvements to the Way.

The affidavits submitted by the Defendant Planning Board state that the neighbors saw no use of the road until the spring of 2007 and that the mature trees and large rocks in the location of the way have existed there since before 1970 and would have precluded any use by motor vehicle. The only facts that the Plaintiff alleges, in paragraphs one through three of her affidavit, that support the existence of the way prior to the improvements made in 2007 are that she used the way for travel by horseback and foot for the forty years that she has lived at the Property and that “she found the way to be free and unobstructed and otherwise suited for vehicle travel.” (Lussier Aff., ¶ 2, May 2008.) The affidavit does not specify at what points in time the road could have been used by vehicles, i.e. before, during, or after 1970. Even construed in the light most favorable to the Plaintiff, these facts do not demonstrate that the road was on the ground and was in fact used for vehicle access to the property in June of 1970 or any date thereafter. The Affidavit of Larry E. Salem also does not allege any facts that support the existence of the road in 1970. Paragraph five of the Salem Affidavit states that an 1810 deed, which “may have encompassed some of the land shown on the Plan,” reserved a road for access to landlocked parcels and in a subsequent conveyance reserved the right to pass and repass over the land. While these facts may help the Plaintiff establish an easement appurtenant to her property providing access to Maple Street, they do not establish that the road was used by vehicles in 1970.

The Plaintiff, on the facts alleged in the summary judgment record, has not shown that the road was a “way in existence” at the time the Subdivision Control Law came into effect on June 12, 1970 or any time thereafter. The improvements made to the road in the spring of 2007 appear to provide vehicle access to the Property from Maple Street for the first time but the Subdivision Control Law was clearly in effect by that date. The Defendant Planning Board properly denied the endorsement of the Plaintiff’s Plan because the Plan does not fall into one of the exclusions from the Subdivision Control Law given in G.L. c. 41, § 81L, twelfth par.

The Planning Board acted within its authority in denying the ANR endorsement of the Plan because Lot 1 is not labeled as “not a buildable lot.”

Section 81E of G.L. c. 41 states that any city or town that has a planning board may adopt an official map, prepared under the direction of the planning board, that shows the public ways, parks, and the private ways then existing and used in common by more than two owners. Ways shown on a plan approved under the Subdivision Control Law become part of the official map. By adopting an official map, a city or town prohibits the construction of any municipal utility, including water and sewer, in any public or private way, unless it is in a subdivision approved under the Subdivision Control Law or on a way that is depicted on the official map. G.L. c. 41, § 81E. This section also prohibits issuing a building permit for any building other than in a subdivision approved under the Subdivision Control Law, unless there is a way giving access to the lot depicted on the map. Id.

The parties agree that the Way in question is not depicted on the map and has not been included on any plan approved under the Subdivision Control Law. While it appears that the language of G.L. c. 41, § 81E renders the proposed lot unbuildable, this does not necessitate the denial of endorsement of an ANR plan submitted under G.L. c. 41, § 81P. That section states that endorsement of a plan submitted pursuant to it shall only be withheld if the plan shows a subdivision. That is, endorsement is not to be withheld simply because the plan depicts unbuildable lots. The case law supports this position and calls the process of endorsement “ministerial” and “routine.” Centore v. Town of Georgetown, 11 LCR 1 , 5 (2003) (Misc. Case. Nos. 242400, 245882) (Lombardi, J.). The Massachusetts Appeals Court confirmed that endorsement of a plan under § 81P does not indicate that there is approval of any other matter concerning the development of the land other than the division being excepted from the subdivision requirements. Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 (1980). The court states, “were we to accept the defendant’s contention that a planning board has a responsibility with reference to zoning when making a § 81P endorsement, it would imply a similar responsibility with reference to the other considerations in § 81M [], not only ‘for insuring compliance with the applicable [zoning] laws’ but ‘for securing adequate provision for water, sewerage, drainage, underground utility services’ etc.” Id. at 604 (quoting G.L. c. 41, § 81M). Thus, according to the case law, it is irrelevant whether the parcels depicted in a plan conform to any other standards required for development.

Additionally, in Bloom v. Planning Board of Brookline, the court reasoned that if a plan showed division of land into parcels that are not buildable then the plan should be endorsed as an ANR plan because those new parcels are not “lots,” as defined by G.L. c. 41, § 81L, and therefore the division is not a subdivision as defined by the same section. 346 Mass. 278 , 283-84 (1963). However, the decision in Perry v. Planning Bd. of Nantucket narrowed this statement by holding that the planning board was not required to endorse the plaintiff’s plan (which depicted a parcel lacking adequate frontage to satisfy the zoning requirements and therefore did not require approval under the Subdivision Control law because it was not a “lot”) unless the plaintiff labeled the parcel in question with the frontage distance. 15 Mass. App. Ct. 144 , 156 (1983). Although an endorsement does not indicate satisfaction of other development requirements, the label was required to provide enough information so that the public could, on its own, make the determination whether the lot conformed to zoning or other requirements. In accordance with the above cases, where a plan does not require approval as a subdivision because the division does not create buildable lots, the plan must include enough information so that the public can independently make a determination that the lots are not buildable.

Douglas adopted an official map on January 12, 1976 that shows each of the private ways in Douglas existing as of 1976 and used in common by more than two owners. [Note 1] The Defendant Planning Board asserts that because the road in question is not depicted on that map, has not been included on any plan approved under the Subdivision Control Law, and is not a public way, it cannot serve as frontage for a buildable lot. The Defendant Planning Board further asserts that the Plan is not entitled to endorsement under G.L. c. 41, § 81P because the Plan is misleading, as it does not indicate that the parcel created is not buildable.

The Plaintiff’s Plan does fall outside of the definition of a subdivision under the Subdivision Control Law because it does not divide a tract of land into two or more “lots.” The land labeled “Remaining Land of Suzanne M. Lussier” is a “lot” because it is in one ownership, with definite boundaries, and used as the site of one or more buildings. The parcel labeled “Lot 1” only has frontage on a private way not depicted on the official map of Douglas and, therefore, is not a “lot” because it is not “available for use” as the site of one or more buildings according to G.L. c. 41, § 81E.. Therefore, the Plan could be endorsed as an ANR under G.L. c. 41, § 81P. However, the Plan clearly states that its purpose is to create a 4.61 ± acre lot and building setback lines are designated, indicating that the Plaintiff’s intention is to build on this parcel. The other areas of land such as “Parcel C” and “Parcel D” and the land labeled “Remaining Land of Suzanne M. Lussier” are labeled “Not A Building Lot.” “Lot 1” is not so labeled, suggesting that it is a buildable lot, and is therefore misleading.

Pursuant to the decision by the Massachusetts Appeals Court in Perry, the Defendant Planning Board acted within its authority to require that the Plan be properly labeled so as to not mislead the public when viewing the endorsed plan. To satisfy this requirement the Plaintiff could label Lot 1 as “Not A Building Lot” as she has labeled the other parcels, or she could identify the road on which the lot has frontage as a “Private Way Not Depicted on the Official Map of Douglas.” She has done neither. Accordingly it is:

ORDERED that the Defendants’ Motion for Summary Judgment is ALLOWED.

By the court (Trombly, J.).