WILLIAM J. CORCORAN, WILLIAM J. CORCORAN, Trustee of ERIN REALTY TRUST and DOUGLAS McCONE vs. MORTON L. BROND, THOMAS W. PHELPS, JOHN C. DROBINSKI, LAEL M. MEIXSELL, JAMES G. HANNOOSH, as Members of the PLANNING BOARD OF THE TOWN OF SUDBURY.

The most litigated question today in the field of subdivision control is that oft-posed interrogation: when, in the parlance, is an ANR plan not an ANR plan, or to the uninitiated, when is a plan which appears on its face to be entitled to an endorsement "Approval Under the Subdivision Control Law Not Required" in accordance with the provisions of G L. c. 41, §81P in fact a subdivision which requires the imprimatur of the Planning Board? This is one of such actions as the plaintiffs, William J. Corcoran, individually and as trustee of Erin Realty Trust, and Douglas McCone, the plaintiffs, appeal pursuant to the provisions of G.L. c. 41, §81BB from a decision of the defendant Planning Board of the Town of Sudbury ( the "Board") to withhold an ANR endorsement from the plan submitted by the plaintiffs on the ground that it required approval as a subdivision (Exhibit Nos. 4 and 5).

A motion for summary judgment was made by the plaintiffs, argued by counsel, and denied by this Court on the ground that there were controverted issues of material fact to be decided. At that time the parties raised a question as to whether the Court decision on the motion determined that even if there were wetlands on the property, the possibility of nonetheless obtaining authority from other administrative authorities to fill, relocate or otherwise cross them, even if not in-hand, was determinative of the access question or whether such approval had to be in-hand before the plaintiffs were entitled to an ANR endorsement. The resolution of this question was postponed to the trial with the motion for clarification denied.

A view was taken of the locus by the Court in the presence of counsel on June 29, 1987. Thereafter a trial was scheduled for August 17, 1987 at the Land Court in Boston, but just prior to the trial the Appeals Court decided the case of Fox v. Planning Board of Milton, 24 Mass. App. Ct. 572 (1987) and the parties again attempted to resolve the dispute by negotiations. Settlement being unfruitful, counsel did agree to the admission of certain exhibits and, for purposes of this case, stipulated as to the existence of various facts set forth herein. Although a stenographer was appointed to record and transcribe the testimony, no witnesses were called by either party.

On all the evidence I find and rule as follows:

1. The plaintiffs hold title to the land shown as Lots 1 to 6 on a plan entitled "Plan of Land, Sudbury, Mass., Property of William Corcoran" dated August 9, 1985 by Metrowest Engineering, Inc. (the "Plan") (Exhibit No. 1), for which they sought an "Approval Under the Subdivision Control Law Not Required" endorsement from the Board. The so-called "Form A" (Exhibit No. 2) which is a form requesting such action was dated September 4, 1985 and filed with the Board and the Town Clerk as required by G.L. c. 41, §81T.

2. Each lot on the Plan has the frontage on a public way, Powder Mill Road, required by the Sudbury Zoning By-Law (Exhibit No. 6) and otherwise complies with the minimum area, width and perimeter requirements of the By-Law.

3. A composite of two aerial topographic plans, being Sheets Nos. B7 and B8 of the Town of Sudbury Wetlands Maps, (Exhibit No. 3) shows the two wetlands situated on the site outlined in red and numbered A4 and A5.

4. There are no physical impediments which affect access from Powder Mill Road to each lot on the subdivision plan, and each is completely accessible from the public way. However, the wetlands in the case of Lots Nos. 1, 2 and 6 may interfere with access from the front of the lot to the back of the lot unless alteration thereof is permitted by the Sudbury Conservation Commission or the Department of Environmental Quality Engineering pursuant to G.L. c. 131, §40, an approval which, so far as appears from this record, the plaintiffs have neither sought nor obtained.

5. The Plan contemplates access to the rear of Lots 1 to 4 inclusive and of Lot 6 via a twenty-five (25) foot driveway and utility easement as shown on the Plan. Lot 5 has no wetlands problem.

6. The Subdivision Rules and Regulations of the Board (Exhibit Nos. 7A and 7B) are silent as to the criteria by which the Board determines access from a proposed lot to the public way although the Town Engineer reviews driveway plans for certain enumerated safety considerations. The plaintiffs introduced, over objection, three plans previously given an ANR endorsement by the Board (Exhibit Nos. 8, 10 and 12) together with the wetlands maps of these areas (Exhibit Nos. 9, 11 and 13) as evidence that the Board administratively interpreted its rules and regulations differently when considering the other plans. However, the plaintiffs do not contend that the Board refused the ANR endorsement for reasons other than that stated in its decision.

7. The rules and regulations of the Sudbury Board of Health pertaining to sewage disposal (Exhibit No. 14) set forth in Section III, Sub-Section M, "Surface Watercourses," a requirement that "[t]he minimum distance between leaching facilities and surface watercourses shall be one hundred (100) feet." Surface Watercourses are defined as "any area where water is present on the surface of the ground for an extended period of time. This includes, but is not limited to: marshes, wetlands, swamps, rivers, streams, brooks, and ponds. Vegetated wetlands and drainage swales that are temporarily active due to precipitation are excluded from this definition." The State Wetlands Regulations, 310 CMR 10.03 (3), permit the leaching system to be fifty (50) feet distant from a wetland but recognize more Stringent local requirements.

8. Title V and the local regulations, as applied to the land of the plaintiffs, permit the construction of a house and its leaching system between Powder Mill Road and the wetlands on Lots 3, 4, and 5, but this cannot be done on Lots 1, 2 and 6 (Exhibit No. 15).

9. The parties additionally have stipulated as to the following facts:

(a) The plaintiffs, as the owners of the locus, have complied with the procedural requirements of the Board in the filing of the Plan and Form A;

(b) There is sufficient room on each of the lots between Powder Mill Road and the wetlands to construct a house (but not all of the necessary septic systems) and that if regulatory approvals were given, it would be physically possible to construct access, vehicular roads or bridges to the rear of Lots 1-4 and 6 from Powder Mill Road; and

(c) The Conservation Commission and DEQE have the authority to permit the construction, but the plaintiffs have not obtained it at the present juncture of this matter.

The problem with which we deal here, is whether the Plan presented by the plaintiffs to the Board is entitled to the routine ANR endorsement "forthwith, without a public hearing." G.L. c. 41, §8 1P, [Note 1] Smalley v. Planning Board of Harwich, 10 Mass. App. Ct. 599 , 603-604 (1980) or whether in fact it shows a subdivision which cannot be summarily dealt with. Uncertainty has arisen since the appellate courts have held in a series of cases that in the words of Justice Armstrong, in Fox v. Planning Board of Milton, 24 Mass. App. Ct. at 573:

the "frontage on . . . a public way" called for by G. L. c. 41, § 81L, as amended through St. 1979, c. 534, must be frontage that offers serviceable access from the buildable portion of the lot to the public way relied on. See Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 , 807 (1978) ("pork chop" lots, connected to public way by ribbons of land, with sharp angle turns, too narrow for vehicular access); McCarthy v. Planning Bd. of Edgartown, 381 Mass. 86 (1980) (frontage on limited-access highway); Hrenchuk v. Planning Bd. of Walpole, 8 Mass. App. Ct. 949 (1979) (same); Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144 (1983) (frontage on unconstructed public way). Compare Gallitano v. Board of Survey & Planning of Waltham, 10 Mass. App. Ct. 269 (1980); Hutchinson v. Planning Bd. of Hingham, 23 Mass. App. Ct. 416 (1987). In the board's view, Fox's parcel is effectively blocked from the paved way by the green belt, his Proposal is essentially for the development of back land, and the access drive should be subject to the regulation of the board governing roads into subdivisions.

Similarly, in the present case, the Board contends that in at least three instances, if not on five of the six lots, a system of common driveways is necessary to reach the rear of the lots unless administrative approval is obtained to cross the wetlands. Absent such approval, the Board contends, the common driveways constitute ways and should comply with its rules and regulations. However, in Fox, the Appeals Court made it clear that the sole concerns of a planning board in considering a §81L endorsement were the existence of the requisite frontage of all lots on a public way and the true availability of the access implied from the plan. Justice Armstrong went on to write at pages 574 and 575 that if such is the case:

it is of no concern to a planning board that the developer may propose a common driveway, rather than individual driveways, perhaps for aesthetic reasons or reasons of cost. The Subdivision Control Law is concerned with access to the lot, not the house; there is nothing in it that prevents owners from choosing, if they are so inclined, to build their houses far from the road, with no provision for vehicular access, so long as their lots have the frontage that makes such access possible. See Gallitano v. Board of Survey & Planning of Waltham, 10 Mass. App. Ct. at 272-273. Here, each of the proposed lots has the frontage called for by the Milton by-law. . . . These facts satisfy the requirements of§ 81L.

In Fox, as in the present case, each lot had guaranteed access to the paved way, but the plan used a common driveway to accomplish this result to avoid a multiplicity of driveways. So far as appears from the decision in Fox, however, there was nothing to bar passage within the perimeters of the lot from the front to the back thereof, whereas in the present case there may be. The defendant Board in the present case argues that in a factual situation like the present where physical conditions may impede access from the front to the back of the lot, it is entitled to view the plan as a subdivision requiring its approval and that the plaintiffs were not entitled to an ANR endorsement. The words in Fox "so long as their lots have the frontage that makes such access possible" gives some evidence to this argument. On balance, however, this argument cannot be sustained. An ANR endorsement was intended for use when there was no difficulty of access from the lots to an adequate public way. There is no such difficulty here. Whether the lots were such as to meet zoning requirements for building, see Smalley v. Planning Board of Harwich, 10 Mass. App. Ct. 599 (1980), or required further permits to enter the highway, see Pinney, et al, Trustees v. Planning Board of Scituate, Land Court Miscellaneous Case No. 119950, does not militate against entitlement to an ANR endorsement. Neither should the interior physical nature of the property so long as there is the required frontage on an adequate public way which is in no way impeded.

Judgment accordingly.