MISC 87433

January 18, 1979

Barnstable, ss.

Sullivan, J.


The controversy in this case centers on the question of whether a public way in the Town of Provincetown, known as Point Street, has been validly discontinued. Peter L. Boyle II, Trustee of The Boyle Realty Trust, ("Boyle") brings this complaint against the Town of Provincetown and the abutters on said way in order to obtain a declaratory judgment as to the status of Point Street and to determine the plaintiff's right, title and interest to certain lands. The defendants, Nicholas Wells, Ray Wells, Hawthorne Bissell, Executor of the will of Betty N. Bissell, William A. White, Margaret E. White and Constance Carpenter, appear to be the owners of lands abutting on Point Street, but it is unclear whether they include the owners of all parcels situated between Bradford Street and Point Street as laid out prior to the 1966 layout. [Note 1] Answers were filed on behalf of Hawthorne Bissell, William A. White and Margaret E. White, and not by the other defendants. On April 24, 1978 Boyle filed a request for admissions under Mass. R. Civ. P. 36 to which the defendants did not respond within thirty days after service. Thereafter a motion for summary judgment was filed and was denied by the Court on August 10, 1978 on the ground that there were issues of material fact still to be determined. Accordingly, a trial was held at the Land Court on October 12, 1978 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. Boyle is the registered owner named in and present holder of Certificate of Title No. 70971 issued by the Barnstable County Registry District of the Land Court and covering Lot 8 on Land Court Subdivision Plan No. 16489F.

2. Point Street is shown on said plan without a designation as to its status.

3. The subdivision plan filed with the Land Court and entitled "Subdivision Plan of Land in Provincetown being a Subdivision of Lot 5 shown on Land Court Plan 16489E Peter L. Boyle et al., Petitioners" dated March, 1977 by William N. Rogers, shows Point Street as a town way and bears an endorsement by the Provincetown Planning Board as follows: "Approval under the Subdivision Control Law Not Required ••••"

4. The layout of Point Street was accepted by the Provincetown town meeting on March 14, 1966, and the selectmen were authorized to take an easement of a town way in certain lands therein described. An order of taking was recorded on August 12, 1966 (Exhibit No. 6), and an amended order of taking was filed for registration on February 15, 1967 (Exhibit No. 7). [Note 2]

5. The warrant for the March 14, 1972 annual town meeting contained the following article:

Article 13. To see if the Town will vote to vacate the taking of lands of Nicholas Wells et ux in 1966 for the establishment of a road according to a layout identified and mapped as the Point Street layout filed in the Barnstable Registry of Deeds in Plan Book 205, p. 107, for which taking no consideration was paid and in furtherance of which taking no road construction had been authorized. Petitioned. Not recommended.

Article 13 was moved as read in its entirety.

6. After Article 13 was moved and read in its entirety, a motion was made to amend the motion by adding after the words "••• had been authorized" the following: "And to further authorize [sic] the return of all properties taken and presently constituting the layout of Point Street." The amendment carried and the motion, as amended, requiring a two-thirds vote was declared unanimous on a standing vote.

7. Thereafter in April, 1977 the plan which would ultimately become Land Court Plan No. 16489F was submitted to and endorsed by the Provincetown Planning Board as not requiring approval. It thereafter was filed with the Land Court as noted in paragraph 3 above.

8. Prior to the March 14, 1972 town meeting the issue of the discontinuance of Point Street was not submitted to the Planning Board for its recommendation as required by G. L. c. 41, §81I.

9. After the 1972 town meeting the selectmen did not declare the easement in Point Street for a town way to be abandoned, nor was any such declaration ever recorded in the Barnstable Registry of Deeds, nor the Barnstable Registry District of the Land Court as set forth in G. L. c. 40, §15. After the institution of the present case the parties agreed that no such action would be taken until the decision of this Court.

10. The records of the town clerk indicate that under date of August 31, 1977 he wrote to the Land Court to advise it of the action taken at the March 14, 1972 town meeting (erroneously referred to in the letter as the March 13, 1972 town meeting) (Exhibit No. 14). There are no records in the Court to indicate whether this letter was received; and if so, to whom it was referred for consideration.

There are several grounds on which the town's attempt to discontinue Point Street as laid out in 1966 is subject to attack.

G. L. c. 41, §81I reads as follows:

In a city or town having a planning board established under section eighty-one A but which has not adopted an official map no public way shall be laid out, altered, relocated or discontinued, unless the proposed laying out, alteration, relocation or discontinuance has been referred to the planning board of such city or town and such board has reported thereon, or has allowed forty-five days to elapse after such reference without submitting its report. Any city or town having a planning board established under section eighty-one A may, by ordinance, by-law or vote, provide for the reference of any other matter or class of matters to the planning board before final action thereon, with or without provision that final action shall not be taken until the planning board has submitted its report or has had a reasonable fixed time to submit such report. Such planning board shall have full power to make such investigations, maps and reports, and recommendations in connection therewith, relating to any of the subjects referred to it under this section, as it deems desirable. (1936, 211, §4; 1947, 340, §4.)

The Supreme Judicial Court has never decided that the action by a town having a planning board, but which has not adopted an official map, in laying out, altering, relocating or discontinuing a public way without first referring the matter to a planning board, renders the subsequent action invalid although the implication in Poremba v. City of Springfield, 354 Mass. 432 (1968), certainly so suggests. This decision is support for the conclusion that the appellate courts in interpreting section 81I will follow the same rule as is applied in cases which relate to the prior submission to the planning board of a proposed zoning ordinance or by-law before its consideration by the City Council or town meeting. See e.g., Town of Canton v. Bruno, 361 Mass. 598 , 602-03 (1972); Barrett v. Building Inspector of Peabody, 354 Mass. 38 , 44- 45 (1968); Woods v. City of Newton, 351 Mass. 98 , 101-02 (1966). It therefore would appear that the failure to refer the article in question to the planning board rendered the action by the town meeting ineffectual, and I so find and rule.

There are other reasons, however, for so characterizing the action of the town meeting. If the vote is analyzed, its inartistry is apparent. For example, the article as it appears in the warrant nowhere suggest that Point Street is to be discontinued, but as drafted, treats only of the authorization to vacate the taking of the Wells land unless the reference to vacating the previous action is read to include a vacation of the layout itself. In any event the motion, as amended, and thereafter adopted, is very much broader than that originally brought before the meeting. Rather than discontinuing a portion of the way across lands of named owners, the amendment discontinued the entire 1966 layout. It cannot be doubted since the decision in the leading case of Town of Burlington v. Dunn, 318 Mass. 216 (1945), that the warrant is not frozen in the verbiage presented to the meeting. The rule stated in the Burlington case is that the requirement in G. L. c. 39, §10 "that the warrant 'shall state ... the subjects to be acted upon' at the meeting and that 'no action shall be valid unless the subject matter thereof is contained in the warrant' ... means only that the subjects to be acted upon must be sufficiently stated in the warrant to apprise voters of the nature of the matters with which the meeting is authorized to deal. It does not require that the warrant contain an accurate forecast of the precise action which the meeting will take upon those subjects." In the present case the article in the warrant apprised the Provincetown voters that a certain landowner sought to have the taking of an easement in his lands vacated, but there was no notice given that the discontinuance of the layout of the town way in its entirety was to be considered. This is not like the situation in Johnson v. Town of Framingham, 354 Mass. 750 (1968), where a zoning by-law to permit both golf clubs and tennis courts was under consideration and as adopted authorized only the former. In our case the vote was much broader than the article and cannot stand. Fish v. Town of Canton, 322 Mass. 219 , 222-23 (1948). Compare Sullivan v. Board of Selectmen of Canton, 346 Mass. 784 (1964) (rescript).

Another ground for holding the vacation of no effect so far as the plaintiff is concerned centers on the 1977 planning board action. The endorsement by the planning board that approval under the subdivision control law was not required was conclusive on all persons, G. L. c. 41, §81P. Cassani v. Planning Board of Hull, 1 Mass. App. Ct. 451 (1973). The endorsement was not thereafter subject to revision as is the case with plans which the board has approved and all persons, including the plaintiff, were entitled to rely on this endorsement. At the time the subdivision plan was submitted to the Land Court, the practice was not to designate the nature of the way without an order of Court, and this was followed in the present case. Apparent on the facts of this case, however, is the conclusion that the endorsement was made by the Board on the ground that the plan did not show a subdivision as defined in G. L. c. 41, §81L. There are three reasons given in the definition as to when the division of a tract into two or more lots does constitute a subdivision, and the one applicable here obviously is (a), which applies whenever every lot in the tract to be subdivided fronts on a public way.

It is not clear whether G. L. c. 40, §15 governs the discontinuance of an easement for a town way or how it relates to the provisions of chapter 82 relative to such action. It would appear to be the better rule that said section 15 does so apply and requires a declaration by the selectmen of a statement as to any damages to be awarded and a recording or registration of the action taken by the town. In this manner the owner who is entitled to damages for the discontinuance will be aware of the commencement of the running of the statute of limitations, Hallock v. County of Franklin, 2 Met. 558 (1841), and perhaps more importantly notice will be given to third parties of the action of the town meeting.

G. L. c. 82, §21 provides that "a town, at a meeting ••• may discontinue a town way or a private way." The cases have not as yet made clear the method of giving the public notice of the action of the town meeting, nor attempted to reconcile the various provisions. For our purposes it is sufficient to rule that the policy of G. L. c. 40, §15 as to recording such actions should be followed.

Upon all the evidence I therefore find and rule that the easement for a town way in that portion of Point Street taken by the Town of Provincetown pursuant to authority granted at the March 14, 1966 town meeting has not been discontinued.

Judgement accordingly.


[Note 1] It may be that the defendants are the owners of all registered land abutting on the way or, alternatively, of all land between the premises and Bradford Street. In any event, if in fact all abutting owners have not been named as parties, the defendants have not raised the issue of nonjoinder and, in effect, have waived their right to do so since the omitted owners are not indispensable to the granting of relief. See Toney v. White, 476 F.2d 203, 207 (5th Cir. 1973); National Board of YWCA v. YWCA of Charleston, 335 F. Supp. 615, 627 (D.S.C. 1971).

[Note 2] The defendants have raised no question as to the validity of the taking in light of the dates of filing for record and registration.