VIRGILIO M. PETRELLI and DOROTHY M. PETRELLI vs. EDWARD G. BOYLE, III, JOHN P. DONOVAN and EARL S. OPDYKE, III, as they are members of the Zoning Board of Appeals of the Town of Norwell.

This is an appeal pursuant to G.L. c. 40A, §17 of a decision of the Zoning Board of Appeals of the Town of Norwell ("Board") dated July 29, 1986 denying the plaintiffs' requests that the Board overturn the Norwell Building Inspector's denial of a building permit, or, in the alternative, that the Board grant a variance from the frontage requirements of the Norwell Zoning By-law ("by-law").

A trial was held on October 9, 1987 at which six witnesses testified and thirty-one exhibits were introduced into evidence. These exhibits are incorporated herein for the purpose of any appeal.

I find the following:

1. The plaintiffs acquired lots 63 and 64 ("locus") on Oakland Avenue, Norwell in 1984 by deed recorded with the Plymouth County Registry of Deeds at Book 5581, Page 341. The locus contains 43,461 square feet in area and has 226 feet of frontage on Oakland Avenue.

2. The plaintiffs are also owners of land at 88 High Street which they acquired in 1976 and where they reside. This High Street property contains 22,500 square feet and abuts the locus.

3. On March 21, 1972 at the Norwell Town Meeting, pursuant to Articles 51 and 52, the Town of Norwell voted to adopt the 1972 official map (Exhibit 5) and to discontinue all town ways not shown on the official map (Exhibit 7). Oakland Avenue is not included in the 1972 official map.

4. On May 21, 1973, William D. Jacobs, predecessor in title to the plaintiffs, applied to the Norwell Planning Board for endorsement of an Approval Not Required plan pursuant to G.L. c. 41, §81P (Exhibit 17). The ANR plan sets forth area measurements of 21,722 square feet and 21,689 square feet for lots 63 and 64, respectively. The ANR plan was constructively endorsed due to the Planning Board's failure to act in a timely fashion. Oakland Avenue is laid out on this plan as a 40 foot private unconstructed way.

5. As of 1975, the minimum lot size in all zoning districts of the Town of Norwell is one acre. Locus is located in a Residential B district requiring eighty feet of frontage on a street.

6. On Apri l3, 1986, the plaintiffs applied for a single building permit for the combined Oakland Avenue lots.

7. By a letter dated May 2, 1986, the Building Inspector denied the application for a building permit. In his decision, the Building Inspector noted that Oakland Avenue is not a way within the meaning of the zoning by-law and that Oakland Avenue does not qualify as a way from which to draw frontage.

8. On May 15, 1986, the plaintiffs appealed the denial of the application for a building permit from the Building Inspector and in the alternative, requested a variance. A public hearing was held by the Norwell Zoning Board of Appeals ("Board") on July 16, 1986.

9. By decision filed with the Town Clerk on July 29, 1986, the Board denied both, the plaintiffs' appeal from the decision of the Building Inspector and the application for a variance.

10. There is no evidence before the Court of any circumstances relating to soil conditions, shape or topography of the plaintiffs' land, peculiar to such land which would permit a variance under G.L. c. 40A, §10.

The Building Inspector's denial of a building permit as well as the Appeals Board's upholding of the denial appear to rest on the determination that Oakland Avenue is not a street or way within the meaning of the Norwell Zoning By-law and accordingly does not "qualify as a way from which to draw frontage."

Pertinent sections of the by-law hereto are:

§2431. The minimum frontage measured at a street line shall be 80 feet for lots in all districts. . . .

§1650. Isolated Lots. Any increase in lot area, frontage or yard requirements of this By-law shall not apply to erection . . . of a structure on a legally created lot not meeting current requirements provided that the applicant documents that:

a) at the time such increased requirement became applicable to it, the lot

(1) had at least 5,000 sq. ft. of lot area and 50 feet of frontage on a street; and

(2) was held in ownership separate from all other lots having frontage with 1,000 feet on that same street; and

(3) conformed to the existing dimension requirements; and. . . .

Definitions, Art. V

Street or Way: Any public way or any private way shown on a plan approved under the provisons of the subdivision control law . . .having in the opinion of the Planning Board suitable width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of land abutting thereon and served thereby. . . .

To establish Oakland Avenue as a street, the plaintiff relies upon the constructive endorsement referred to in finding no. 4 above.

While there may well be situations where such "constructive endorsement" is equivalent to approval, the case at hand is not such a situation. G.L. c. 41, §81P states in part ". . .if the board fails to act. . . within fourteen days . . . it shall be deemed to have determined that approval under the subdivision control law is not required, and it shall forthwith make such endorsement on said plan. . . ."

Under the plain language of the statute, such endorsement is not an approval but a determination that approval is not required. We do not have here the situation under G.L. c. 41, §81U in which "failure . . . to take final actions . . . shall be deemed an approval thereof."

In consideration of the foregoing, I find and rule that Oakland Avenue does not constitute a street or way under the zoning by-law of the Town of Norwell and further that there is no evidence before the Court to support a zoning variance. Accordingly, the decision of the defendant Zoning Board of Appeals filed July 29, 1986 with the town clerk was within its authority. The plaintiffs' complaint is hereby dismissed.

The defendants have submitted requests for findings of fact and for rulings of law. I have not attempted to rule on each of said requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

Judgment accordingly.