JOHN McAULEY and YVONNE McAULEY v. ROBERT ALDENBERG, DAVID LEARY, CHRISTINE LINDBERG, LEAH MORESCHI

Introduction

This is a case with an unusual twist. Its history began with plaintiffs John and Yvonne McAuley’s opposition to the use variance, special permit and site plan approval granted to the owners of an abutting property on South Main Street (Route 114) in Middleton for the construction of a medical office building. [Note 1] During the course of their G.L. c. 40A § 17 appeal from that grant, the McAuleys acquired the abutting property and now seek to develop it themselves. Their preferred plan is to turn the two properties, each presently occupied by a two-family residence, into a seven-lot single-family residential subdivision (the “subdivision proposal”). The “twist” is their back-up plan. If they cannot obtain the required permissions for their subdivision, they intend to construct the medical office they previously opposed (the “medical office proposal”).

The subdivision proposal requires Definitive Subdivision Plan approval from the Middleton Planning Board. The McAuleys prepared and submitted such a plan. The Board refused to approve it, however, based solely on the Board’s contention that “the centerline of [the subdivision’s] proposed roadway, ‘Lewis Drive’, does not meet the minimum distance of one hundred twenty-five (125) feet from the centerline of the minor street ‘Orchard Circle’ which enters South Main Street on the opposite side as required by the Middleton Planning Board Rules and Regulations Governing the Subdivision of Land.” [Note 2] Decision, Lewis Drive Definitive Subdivision Plan (Apr. 13, 2009). In all other respects, the plan either complies with the subdivision regulations or the non-conformities expressly have been waived by the Board. [Note 3]

The McAuleys concede that the distance between Orchard Circle and their proposed “Lewis Drive” is approximately 100 feet. But they disagree that Orchard Circle is a minor or other type of “street” within the meaning of the Regulations, and thus disagree that 125 feet or more of separation is required. [Note 4] Rather, they say, Orchard Circle is a “driveway” (for which the required degree of separation is 55 feet) because it serves only a single lot. [Note 5] Count I of the amended complaint is thus a G.L. c. 41 § 81BB appeal from the subdivision plan denial, and the dispositive issue of whether Orchard Circle is a “street” or a “driveway” is the subject of the first part of McAuley’s motion for summary judgment presently before the court.

Count II of the amended complaint, the subject of the second part of the summary judgment motion, presents the remaining issue. Originally, the McAuleys were the owners of 77 South Main Street alone. As noted above, the former owners of 75 South Main Street applied for, and obtained, a use variance, special permit and site plan approval to construct a medical office facility on that property. The McAuleys filed a G.L. c. 40A, § 17 appeal from these grants in Superior Court but then, mid-lawsuit, bought 75 South Main Street and moved to dismiss their appeal — a motion the granting board opposed for unexplained reasons. Ultimately the motion to dismiss was allowed and a judgment so stating was entered by the court. McAuley v. Middleton Family Medicine Medical Facility 06 Ltd. Ptnrshp, et al., Essex Superior Ct., Civil Action No. ES-CV-2007-00657, Amended Judgment (Aug. 7, 2009).

When the McAuleys then went to the Town Clerk for a G.L. c. 40A, § 11 certificate indicating that an appeal of the variance and special permit had been taken and dismissed, the Clerk refused to issue the certificate, claiming “insufficient knowledge” to do so. She continued to refuse even after the McAuleys submitted a certified copy of the court record, based now on her assertion that the variance and special permit had “lapsed.” The McAuleys disagree with that contention and, in Count II of their amended complaint, seek a G.L. c. 249, § 5 writ of mandamus directing the issuance of the certificate.

For the reasons set forth below, the McAuleys’ motion for summary judgment on both counts of their amended complaint is ALLOWED. On the undisputed facts, as a matter of law, Orchard Circle is a driveway, not a street. Since Orchard Circle is over 55 feet from Lewis Drive, the subdivision plan is compliant with the subdivision rules and regulations in that respect. The board has already granted waivers from the nine aspects in which the subdivision plan is non-compliant. Accordingly, the Board is hereby ORDERED to approve the Definitive Subdivision Plan. See Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeals of Billerica, 454 Mass. 374 , 382-383, 387, 389 (2009). Also, the Town Clerk is directed to issue the G.L. c. 40A, § 11 certificate. The record is clear that the G.L. c. 40A, § 17 appeal from the granting of the variance, special permit and site plan approval has been dismissed. The § 11 certificate issued by the Clerk has no significance beyond certification of that fact and is thus purely ministerial. Questions of lapse and the like are for the zoning enforcement authorities and review process, not the Clerk, and thus for another day. See G.L. c. 40A, § 13.

The Summary Judgment Standard

Summary judgment is appropriately entered when “there is no genuine issue as to any material fact and … 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). A fact is genuinely in dispute only if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248 (1986). Material facts are those that might affect the outcome of the case under the governing law. Id. Here, with respect to both of the McAuleys’ claims, there are no material factual issues in dispute between the parties and judgment may be entered as a matter of law.

Facts and Analysis

On the Undisputed Facts, as a Matter of Law, Orchard Circle is a Driveway, Not a Street, Within the Meaning of the Subdivision Regulations

Pursuant to Middleton’s subdivision Regulations, streets entering opposite sides of another street must be laid out either directly opposite each other or with minimum offsets of 250 feet for “major” and “secondary” streets and no less than 125 feet for “minor” Streets. Code, § 250-9(B)(1)(h). New driveway cuts need be offset only 55 feet. Code, § 250-9(B)(5)(a).

The street proposed for layout in the McAuley subdivision is “Lewis Drive”, so named at the request of the Middleton Board of Selectmen. Lewis Drive is unquestionably a “minor” street — one which “will be used primarily to provide access to abutting lots and which will not be used for through traffic,” Code, §250-2 — since the subdivision it would serve is comprised of seven abutting lots, it runs alongside those lots, and it is a dead-end cul-de-sac. Its sole connection is to South Main Street (Route 114), which it intersects at its upper (Eastern) end.

It is undisputed that there are no “major” or “secondary” streets within 250 feet of Lewis Drive on the opposite side of South Main Street. It is also undisputed that there are no “minor” streets within 125 feet, with the single possible exception of Orchard Circle. Orchard Circle is approximately 100 feet away. The question thus becomes, is Orchard Circle a “minor street” or a “driveway”? If a minor street, the Board’s rejection of the McAuleys’ Definitive Subdivision Plan was correct. If a driveway, the Board’s rejection was erroneous and, because the proximity of Orchard Circle to Lewis Drive was the sole reason for rejection of the Definitive Plan (which was otherwise compliant or received the necessary waivers), the Definitive Plan must be approved.

Orchard Circle serves a single lot on South Main Street and, in fact, is shown on the tax assessor’s map as a part of that lot. The lot is owned by the Middleton Housing Authority, a G.L. c. 121B, §3 public entity, and occupied by 54 units of residential housing in nine separate buildings, plus an office/common building. There is a sign that says “Orchard Circle” where it intersects South Main Street, much like the street signs used elsewhere, but there is no “Orchard Circle” on the tax assessor’s map. “Orchard Circle” is not shown as a way on a plan approved and endorsed in accordance with the Subdivision Control Law. In fact, it is shown on an “approval not required” plan endorsed by the Board on November 21, 1966, consistent with the premise of an ANR plan that the lot or lots shown thereon are on an existing way and that the plan shows no new ways. There is no “Orchard Circle” shown on the ANR plan. It has not been accepted as a public way by town meeting. It does not appear on the list of accepted streets in the town. A report of the town’s Street List Committee identifies it not as a public or private street or way, but as “town property.” It is plowed and sanded by the town as either part of a “municipal lot” (the parking area for the MHA facility) or the entryway to that lot. These facts must be matched against the Regulations.

Regulations such as these are interpreted in the same manner as statutes, Framingham Clinic Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981), and the analysis is the familiar one:

As always when the meaning of a statute is at issue, the initial inquiry focuses on the actual language of that statute. Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent, and the courts enforce the statute according to its plain wording, which we are constrained to follow so long as its application would not lead to an absurd result. When a statute speaks with clarity to an issue, judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished. We need not look beyond the words of the statute itself in such a case, even if we recognize a potential unfairness within a statute’s clear language or that a statute creates a potential anomaly.

Martha’s Vineyard Land Bank Comm’n v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004) (internal citations and quotations omitted).

The language of the statute, or here the regulation, is “the principal source of insight into legislative intent. Where the words are plain and unambiguous in their meaning, we view them as conclusive as to legislative intent.” Water Dept. of Fairhaven v. Dept. of Environmental Protection, 455 Mass. 740 , 744-745 (2010). That fact that a regulation draws lines makes no difference to the analysis. “The great body of the law consists of drawing such lines.” Schlesinger v. Wisconsin, 270 U.S. 230, 241 (1926) (Holmes, J., dissenting). “…[W]here to draw the line…is the question in pretty much everything worth arguing in the law. Night and day, youth and age, are only types.” Irwin v. Gavitt, 268 U.S. 161, 168 (1925) (Holmes, J.). So long as those lines have been rationally drawn and do not lead to an “absurd result”, they must be followed. Martha’s Vineyard Land Bank Comm’n, 62 Mass. App. Ct. at 28.

Here, the lines drawn by the subdivision Regulations are clear. A “minor street” is one that “provide[s] access to abutting lots” and, in contrast to a “major street”, “will not be used for through traffic.” Code, § 250-2. A “driveway” serves a single lot. Code, § 250-9(B)(6). Neither the size of the lot nor the intensity of its use has regulatory significance, [Note 6] with a possible exception. The definition of “secondary street” seems to suggest that an entryway to “a shopping center [or] industrial park” might be considered a “street” for some purposes, and there is a logic to this. [Note 7] But notably absent from that definition is “apartment buildings”, which is what occupies the lot served by Orchard Circle. The reason for that omission is easily understood. Shopping centers and industrial parks are high traffic, constant “come and go” uses with many visitors and a full mix of vehicle types — cars, large trucks and small trucks alike. Apartment buildings are different. Cars park and remain for long stretches of time and, with minor exceptions, belong to the residents who thus become familiar with the road intersection. Trucks and other large vehicles will be relatively rare. The distinction drawn is thus eminently rational, and it would require a major re-writing of Middleton’s subdivision Regulations to sweep driveways that serve apartment buildings into the category that serves shopping centers and industrial parks. The law is clear that this cannot be done. See Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123 , 126 (2006), citing General Elec. Co. v. Dep’t of Envtl. Protection, 429 Mass. 798 , 803 (1999) ("We do not read into [a] statute a provision which the Legislature did not see fit to put there, nor add words that the Legislature had an option to, but chose not to include"); Bronstein v. Prudential Ins. Co. of Am., 390 Mass. 701 , 708 (1984) (court cannot insert words into statute that is clear and unambiguous). See also Joslyn v. Chang, 445 Mass. 344 , 352 (2005) (“The duty of the court is to adhere to the very terms of the statute, and not, upon imaginary equitable considerations, to escape from the positive declarations of the text. No exceptions ought to be made, unless they are found therein; and if there are any inconveniences or hardships growing out of such a construction, it is for the legislature, which is fully competent for that purpose, and not for the court, to apply the proper remedy.”) (internal quotations and citations omitted).

The Board’s attempt to side-step this clear meaning of the Regulations through a “Street Certificate” from the town Clerk is unavailing. That certificate — “This is to certify that Orchard Circle is a way owned by the Town of Middleton, plowed and sanded by the Town, and used as a public way” (May 15, 2008) — purports to bring Orchard Circle within the definition of “street” as used in the zoning portion of the code. [Note 8] Whatever its merits with respect to zoning matters, it does not apply to the subdivision Regulations which have their own, specific, definitions for purposes of plan review and approval. See Code § 250-1(B) (“It is the intent of the Subdivision Control Law that any subdivision plan filed with the Planning Board shall receive the approval of the Planning Board if said plan conforms to the recommendation of the Board of Health and to the rules and regulations of the Planning Board pertaining to the subdivision of land…”) (emphasis added). See also G.L. c. 41, § 81M. Moreover, as a factual matter, the certificate is inaccurate. Orchard Circle is not owned by the Town of Middleton. It is owned by the Middleton Housing Authority, a separate entity. See G.L. c. 121B, §3; Finance Comm. of Boston v. McGrath, 343 Mass. 754 , 763 (1962). There is also no evidence that it truly meets the test of a “public way”, i.e. “(1) a laying out by public authority in the manner prescribed by statute…; (2) prescription; [or] (3) prior to 1846, a dedication by the owner to public use…coupled with…acceptance by the public.” Moncy v. Planning Bd. of Scituate, 50 Mass. App. Ct. 715 , 716 (2001) (quoting Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979))

The Board’s final two arguments are also without merit. Whether identified on their previous subdivision plan as a “minor road” or not, the McAuleys are not estopped from correctly contending that Orchard Circle is a driveway on this plan. Simply put, the definitions in the Regulations control for purposes of plan review and approval. See Code § 250-1(B) (cited above). For the same reason, the Board cannot argue “safety” or other concerns separate and apart from the Regulations. Again, the Regulations control. [Note 9]

Once Presented With the Court Record, The Clerk Had No Discretion to Deny the G.L. c. 40A, §11 Certificate

The McAuleys’ G.L. c.40A, § 17 appeal from the grant of the variance, special permit and site plan approval for 77 South Main Street was dismissed by final judgment of the Essex Superior Court. Once presented with a certified copy of that dismissal, the Clerk was obligated to issue the requested G.L. c. 40A, § 11 certificate. The statute says so, and provides for no exceptions. The § 11 certificate has no legal significance beyond certification of the dismissal and is thus purely ministerial.

Whether or not the variance, special permit and site plan approval have “lapsed” is a separate question, statutorily assigned to another official and review process entirely. It is the building inspector/zoning enforcement officer, not the Clerk, who is responsible for evaluating whether a building or proposed building complies with zoning regulations (likely, in this instance, at the time — if ever — an application for a building permit is submitted), with his decision subject to appeal and review by the relevant boards and, ultimately, the courts. See G.L. c. 40A, §§ 13, 14, 15, 17. [Note 10] The Clerk has no part in that process.

Conclusion

On the undisputed facts, as a matter of law, Orchard Circle is a driveway, not a street. Since Orchard Circle is over 55 feet from Lewis Drive, the subdivision plan is compliant with the subdivision rules and regulations in that respect. The board has already granted waivers from the nine aspects in which the subdivision plan is non-compliant. Accordingly, the Board is hereby ORDERED to approve the Definitive Subdivision Plan. See Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeals of Billerica, 454 Mass. 374 , 382-383, 387, 389 (2009). In addition, for the reasons set forth above, the Clerk is directed to issue the G.L. c. 40A, § 11 certificate requested by the McAuleys reflecting the dismissal of their appeal of the 77 South Main Street variance, special permit and site plan approval to Superior Court.. Judgment shall enter accordingly.

SO ORDERED.

By the court (Long, J.)