MISC 08-376314

May 5, 2010


Trombly, J.


This action was filed by Paul E. Leary, Trustee of II Prospect Road Nominee Trust (“Plaintiff” or “Leary”), on April 1, 2008 appealing pursuant to G. L. c. 41, § 81BB the March 6, 2008 decision of the defendant Mattapoisett Planning Board (“Board”) denying endorsement of a plan he had submitted to it for Approval Not Required approval. [Note 1] The Mattapoisett Building Inspector had twice previously, on August 3, 2007 and September 13, 2007, denied building permit applications submitted by Plaintiff concerning the same parcel of land, located off Prospect Road in Mattapoisett (“the Property”), basing his denials on Plaintiff’s failure to prove adequate frontage. Plaintiff did not appeal these denials. In addition, the Planning Board had previously denied ANR endorsement to an earlier plan, stating that the driveway used to access the lot “did not meet the requirements for width construction” and ruling that “a conforming lot cannot be created” because it would not comply with Section of the Boards Rules and Regulations.

On March 3, 2008, Leary's representatives appeared before the Board regarding the ANR application at issue in this case and argued that the October 1, 2007 ruling was erroneous. In the decision being appealed in this action, dated March 6, 2008 and filed with the Town Clerk on March 13, 2008, the Board found that the way in question had “insufficient grade width, grade and construction to serve as an access road for another residence.” The Board added that the driveway is “currently of questionable adequacy to serve as access for existing houses and that any further development would intensify this problem and would be contrary to public health, safety and welfare.”

The defendant answered on April 18, 2008, contending that the Board had acted in good faith and within its lawful authority and discretion in denying endorsement of the plan. A Case Management Conference and several status conferences were held, following which the case was assigned for trial and a site visit. Trial was conducted in Boston on September 22, 2009 and October 20, 2009. The testimony was reported by a certified court reporter. A site visit to the Property was taken with counsel on September 23, 2009. Both sides have submitted post-trial memoranda.

After reviewing the record before the Court, including twenty-two exhibits, some with multiple parts, and considering the testimony of eight witnesses, and based also on my observations at the view, I find the following facts:

1. Leary is the owner of the land (“the Locus”) located off Prospect Road, known as Lot 152. He also owned at one time Lot 159, located across the way from Lot 152. A Decision Sketch showing the lots and the surrounding area is attached hereto.

2. The Locus is accessed by a gravel private driveway (“the Way”) that is also owned by Leary and which is currently used to access a single family residence at 19 Prospect Road (Lot 159), previously owned by the Plaintiff and now owned by Robert Hagberg.

3. Prospect Road connects Route 6, a state highway, with the beach and was described by several witnesses as “the second or third busiest traveled way in Mattapoisett.”

4. Plaintiff purchased Lots 152 and Lot 159 for $225,000 in 2002. Lot 159 contained at the time a pre-existing non-conforming residence which Leary was later allowed to demolish and replace with another structure. Robert Hagberg and his family currently reside in that home, having purchased it from Leary in late 2005 or early 2006 for $749,900.

5. Plaintiff applied for building permits for lot 152 twice, on August 3, 2007 and September 13, 2007. Both applications were denied by the Building Inspector based on Leary’s “failure to prove adequate frontage.” Plaintiff did not appeal either of these building permit denials.

6. Both lots 152 and 159 derive sole access over the driveway leading from Prospect Road and have no frontage on Prospect Road itself. Additionally, Lots 156 and 158 and the pre-existing homes thereon, although having frontage on Prospect Road, derive their actual access from the same driveway.

7. The traveled driveway at issue in this case is between 8 and 10 feet wide along its entire length. There is no clear or compacted shoulder on either side of the driveway. There are obstacles present where the shoulder should be, such that the driveway cannot be fully plowed. These obstacles include telephone poles, stone walls and trees.

8. The soil in the area is particularly wet, poorly-draining, and unstable after rainfall due to a 10-12 foot deep layer of water-impermeable glacial till beneath the surface. After a rain storm, the water just sits on the driveway and, in cold weather, freezes. It does not seep into the ground, instead evaporating or flowing onto the adjoining lots.

9. The driveway is not adequately graded, paved, or maintained, causing particular problems for existing residents. Furthermore, the driveway is deeply rutted and potholed such that during the winter the driveway becomes exceedingly difficult to navigate.

10. The turning radius coming onto the driveway from Prospect Road is inadequate for large vehicles. Despite Plaintiff’s testimony to the contrary, the Court is convinced that emergency vehicles such as fire trucks and ambulances have a difficult time negotiating the curve at the intersection of the driveway and Prospect Street. The problem is exacerbated by the fact that there is an incline at that location. Vehicles attempting to turn into the driveway sometimes cannot make it and either slide back into the busy street in icy conditions, or are required to back into Prospect Road to get a “running start”. Conversely, vehicles attempting to get onto Prospect Road from the driveway sometimes slide into the street, causing serious safety concerns.

11. The driveway lacks a turnaround at the end, as required by the Mattapoisett common driveway standards. It is basically a “dead end street” with no area in which vehicles, especially larger ones, can turn around. They are forced to either back out over the narrow driveway, often going onto the various Lots as they do so, or intentionally travel onto privately owned property to turn in order that they can travel toward Prospect Road going forward.

12. The driveway also lacks signage indicating which properties it serves and their locations, as required by the Mattapoisett common driveway standards. For example, the property currently owned by the Hagbergs has a street address of 19 Prospect Road even though it does not have frontage on that thoroughfare.

13. The Planning Board's expert, Robert Field, P.E., a registered professional engineer with a specialization in residential and commercial roadway design, testified that the driveway fails to meet commonly accepted engineering standards for width, grade, surface conditions, and turning radius.

14. Lot 152 lacks sewer access and, although the Planning Board has approved use of the existing 6” sewer line for lot 152, the plaintiff must secure and provide proof of a written agreement with the Hagbergs, owners of lot 159, regarding ownership and maintenance of the line. It is unlikely that such permission will be granted.

15. The Town’s Water and Sewer Commission allowed construction of the line but mandated the assent of the abutting owner also to be served by it (presently the Hagbergs) because of the narrowness of the driveway and because the members knew that it would be almost impossible to place the water line above the proposed sewer line. The Commissioners were also aware that the narrowness of the driveway and its physical condition made it impossible to place the two lines side by side.

16. In order to install a new sewer line, there must be at least a five-foot separation from the existing water line, or alternately a ten-foot separation if the sewer line could not be installed lower than the water line. Given the condition of the land, and especially in view of the fact that the driveway sits on glacial till and is very impermeable, it will be very difficult, if even possible or feasible, for such a system to be installed.

In an appeal from a local planning board concerning an ANR plan, “[t]he court shall hear all pertinent evidence and determine the facts, and upon the facts so determined, shall annul such decision if found to exceed the authority of such board.” G.L. c. 41, § 81BB. See Fairburn v. Planning Bd. Of Barnstable, 5 Mass. App. Ct. 171 , 172 (1977); Strand v. Planning Bd. Of Sudbury, 5 Mass. App. Ct. 18 , 23-24 (1977) and cases cited. [Note 2] ANR endorsement is provided for in G. L. c. 41, §81P as follows:

Any person wishing to cause to be recorded a plan of land situated in a city or town in which the subdivision control law is in effect, who believes that his plan does not require approval under the subdivision control law, may submit his plan to the planning board…and, if the board finds that the plan does not require such approval, it shall forthwith, without a public hearing, endorse thereon or cause to be endorsed thereon by a person authorized by it the words “approval under the subdivision control law not required”…. Such endorsement shall not be withheld unless such plan shows a subdivision.

The term “subdivision”, as it appears in § 81P, is defined in G. L. c. 41, § 81L as

The division of a tract of land into two or more lots…provided, however, that the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision within the meaning of the subdivision control law if, at the time when it is made, every lot within the tract so divided has frontage on (a) public way….

It would seem, at first blush, that the Planning Board need decide only one seemingly ministerial issue before signing the plan; that is, whether the plan shows a subdivision. However, since the opinion in Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 (1978), planning boards and developers of real estate have continued to present cases that raise the question whether access to a public way is “illusory” for purposes of obtaining an “ANR” endorsement under G. L. c. 41, § 81P. The condition of the driveway at issue in this case raises a similar issue. Applicable statutes require the board to conclude that the way proposed as access to the lot or lots shown on the plan have “sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic…and for the installation of municipal services.” Gifford, at 807.

In the present case, Leary seeks to rely on the Planning Board’s acceptance of the Way for the use of the Hagberg lot, numbered 159 and having an address of 19 Prospect Road, as support for the ANR plan he has submitted for Lot 152. For reasons set forth below, this Court does not agree with his argument and upholds the refusal of the Board to endorse the plan. While the driveway at issue here may be adequate to serve as a driveway for one lot, it most certainly is not adequate to serve as access for two or more lots.

The issues before this court are as follows: whether the Way possesses sufficient width, suitable grade, and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use, whether the Way possesses sufficient width, suitable grade, and adequate construction for the installation of municipal services as required by the proposed residential use, and whether the Planning Board was acting in an arbitrary and capricious manner when it ruled that the plan showing the Locus was not entitled to an endorsement as Approval Not Required.

Defendant argues that the Way is of an unsuitable grade, citing Mass Highway and AASHTO (American Association of State Highway and Transportation Officials) requirements for a minor street. Defendant further contends that the driveway in question, even if allowed to serve two or more lots, would have to be designed to satisfy the requirements for “local streets”, which are defined in the Board’s Rules and Regulations as streets that serve abutting residences and are “not intended to serve through traffic.” Such local streets would be required to have a forty foot wide layout, a surface width of twenty-four feet (comprised of at least a twelve inch gravel base plus three inches of bituminous concrete), and, in this case, a turnaround of at least eighty feet in diameter. Clearly, the driveway at issue here does not meet any of these criteria. Notwithstanding the above, this Court remains unconvinced that the driveway relied upon by Plaintiff, after being expanded in its use to include an additional single-family dwelling, would become a minor or local street, as opposed to a common driveway.

According to the Mattapoisett Town Zoning Bylaws, a common driveway is defined as “A drive or road which does not meet the definition of a 'Street' under this By-Law but serves as a common vehicular access to more than one (1) but not more than five (5) residential lots.” It is the opinion of the court that the Way would have to satisfy the requirements of a common driveway as set out in the Mattapoisett Town Zoning Bylaws: Design and Construction Standards

A CD [Note 3] shall be at least sixteen (16) feet wide and be located in a driveway easement at least twenty (20) feet wide. The sixteen (16) foot wide CD shall be surfaced with a stable material; such as, but not limited to asphalt, reprocessed asphalt, concrete, brick, cobblestone, or compacted gravel at least twelve (12) inches thick. All CD’s shall not have a paved or improved surface wider than twenty (20) feet within twenty (20) feet of a street line. If a CD is used for access these standards shall apply, even if the lots served could gain access separately. Turn around will be required at the end of the common driveway sufficient for maneuvering emergency vehicles as determined by the zoning enforcement office.

All CD’s shall have appropriate signage at the intersection of the public or private way and elsewhere along the CD as needed to adequately identify the location of the properties served by the CD.

In order for the Way to be deemed adequate for the proposed use, it must have sufficient width. A common driveway in Mattapoisett is required to have a minimum surfaced area 16 feet wide, with two feet of graded shoulder on either side. When questioned about an appropriate minimum surfaced area for a single-family driveway, Defendant's expert witness, Mr. Field, stated that in his opinion, the driveway should have a minimum surfaced width of 16 to 18 feet. Since the driveway in question is merely 8 to 10 feet across without graded or cleared shoulders, it clearly falls short of the minimum requirements for even a single-family driveway, let alone for a “local street.”

The court must address several additional factors when considering whether the Way is of adequate construction. The driveway is, according to the Planning Board's expert witness, set atop two feet of loose subsoil supported by at least 10 feet of water-impermeable glacial till. As a result of these prevailing soils, the plaintiff was unable to get the land to “perc” for the purposes of an on-site septic tank. For this and other reasons, the land beneath and abutting the way is very wet.

These soil conditions exacerbate other construction issues; the Way is not paved, but rather is deeply rutted and is comprised of uneven and ungraded gravel, grass and dirt. These ruts and other potholes fill with water and freeze during the winter, resulting in a slick surface that becomes exceptionally dangerous as one nears the steep entrance to the driveway from Prospect Road.

Considering the natural tendency of the soil to retain precipitation, proper drainage is of primary concern with regards to a finding of adequate construction. Plaintiff admits that the driveway features little to no drainage infrastructure, a fact which is particularly important for gravel driveways, as excess water will wash away gravel and soil, creating ruts and potholes. The Way is not crowned, nor does it feature drainage trenches or basins on either side.

A third requirement for a common driveway is that there be a turnaround at the end of a dead end way. The town of Mattapoisett requires common driveways to have a turnaround “sufficient for maneuvering emergency vehicles as determined by the zoning officer.” The Way does not have a turnaround, but instead is a dead-end. Vehicles attempting to return to Prospect Road must either back out or turn around on private property. The Way clearly does not meet the criteria in this case.

The Way also lacks signage “at the intersection of the public or private way and elsewhere along the common driveway as needed to adequately identify the location of the properties served by the common driveway,” as required by the Town. The Hagberg home has been assigned an address of 19 Prospect Road even though it does not front on that street. Persons looking to find the Hagberg home are hard-pressed to find it under the current circumstances; there is no frontage and there is no sign.

Applying the minimum possible requirements to the Way, those of a Common Driveway, the court finds the Way severely lacking. The Way does not satisfy the width or construction requirements of the Town's Bylaws, and is of such a grade as to exacerbate the existing insufficiencies. Furthermore, the obstacles presented to the Plaintiff in providing adequate sewer access, though not insurmountable, are substantial. Since the Plaintiff doesn't claim to have frontage on a public way or approved subdivision way, he must claim frontage on a “way in existence” which allows significant discretion on the part of the Zoning Board under G.L. c.42, §81L. In spite of the discretion granted to the Board, I find that Plaintiff's argument that the Zoning Board of Appeals acted in an arbitrary and capricious manner is unfounded. The evidence of the Way's inadequacy is quite apparent. Indeed, the Zoning Board, the Fire Department, the Highway Surveyor and the Town's expert witness all found that the Way presented numerous safety and access deficiencies for service, even to the residences already existing thereon. It follows that allowing it to serve as access to an additional home or homes would be a major error and would make a bad situation even worse.

It is the opinion of this Court that the decision of the Board on March 6, 2008 refusing to endorse Plaintiff’s ANR Plan was the proper decision, was not arbitrary or capricious, and is therefore affirmed.

Judgment to enter accordingly.

Charles W. Trombly, Jr.


Dated: May 5, 2010


[Note 1] A reduced copy of the plan submitted by Leary and refused endorsement by the Board is attached.

[Note 2] During trial, and in his post-trial memorandum, counsel for the Defendant Board moved and argued that the action should be dismissed because the complaint, although couched as an appeal from a Decision of the Board refusing to endorse a plan submitted for ANR approval, was in fact an end-run around the fact that Plaintiff had failed and neglected to file a timely appeal from the decisions of the Building Inspector denying applications for building permits for Lot 152. Plaintiff addressed the issue in his post-trial brief, denying that he claimed that the actions of the Planning Board were “arbitrary and capricious”, and stating that what he really sought was a Decision by the Court as to the adequacy of the way leading to Lot 152. While I disagree with Plaintiff’s argument, and note that he on two occasions in his Complaint asked the Court to rule that the actions of the Board denying endorsement were “arbitrary and capricious”, I nevertheless take no action on Defendant’s motion, preferring to get to the crux of the matter, i.e., the issue regarding the adequacy of the way over which plaintiff claims to have access.

[Note 3] CD is the abbreviation of Common Driveway used in the Town of Mattapoisett’s Town Bylaws.