On February 25, 1988, the plaintiff, Allen B. Flanders, filed his complaint in this matter pursuant to G.L. c. 41, §81BB appealing the refusal of the Planning Board of the Town of Chilmark ("Planning Board") to affix an endorsement "approval under the subdivision control law not required" ("ANR") as provided in G.L. c.41, §81P to a plan entitled Plan of Land in Chilmark, Mass." dated January 14, 1988, ("Original Plan") and revised on February 5, 1988 ("Revised Plan"), showing real estate fronting on Flanders Lane and situated on the easterly side thereof.
A trial was held at the Land Court on August 8, 1988, at which a stenographer was sworn to record and transcribe the evidence. The plaintiff called three witnesses, including two members of the defendant Planning Board, Annabel Dietz and Rusty Walton, and the plaintiff, Allen B. Flanders. The defense limited its questioning to the plaintiff's witnesses. Both parties stipulated to the thirteen (13) documents which were introduced into evidence at the trial (Exhibit No. 1A). These exhibits, as well as all pleadings, have been incorporated herein for the purpose of any appeal.
The sole issue in this action is whether the plaintiff is entitled to have his plan endorsed as "approval under the subdivision control law not required" pursuant to G.L. c. 41, §81P. Accordingly, after considering all stipulated facts and all of the evidence, I find and rule as follows:
1. The plaintiff is the owner of eleven (11) acres more or less of land ("locus") situated towards the northerly end of Flanders Lane in Chilmark, Massachusetts as shown on the Original and Revised Plans.
2. On February 1, 1988, the plaintiff filed a "Form A" application with the Planning Board seeking an endorsement of the Original Plan under G.L. c. 41, §81P, "Approval under the Subdivision Control Law not Required."
3. The Original Plan proposes to divide the locus into three (3) lots with access thereto existing on Flanders Lane which is described, although erroneously, on such plan as "Public - 40 Feet Wide."
4. Lot one (1) contains 4.73 acres more or less with 271.14 feet of frontage on Flanders Lane, Lot two (2) contains 3.21 acres more or less with 107.55 feet of frontage on Flanders Lane and Lot three (3) contains 3.26 acres more or less with 780.05 feet of frontage on Flanders Lane.
5. Each lot contains a total area which exceeds the three (3) acre minimum lot size required by the Chilmark Zoning By-law.
6. Each lot contains frontage providing access thereto which exceeds the 100 foot minimum frontage requirement of the Chilmark Zoning By-law.
7. On or about February 5, 1988, at the request of the Planning Board, the plaintiff revised the plan.
8. On February 8, 1988, the plaintiff submitted the Revised Plan to the Planning Board.
9. The Revised Plan depicts a twenty (20) foot wide driveway easement which crosses Lots two (2) and three, (3) and provides access to Flanders Lane at a point free of wetlands and describes Flanders Lane as a "40 Foot Wide Right of Way."
10. The Planning Board voted to deny an ANR endorsement of the Revised Plan, reasoning that the existence of wetlands prevented adequate access to the plaintiff's lots (Exhibit No. 4).
11. On February 12, 1988, the Planning Board sent the plaintiff a letter suggesting that he resubmit the Revised Plan as a "Form C" application.
12. On February 22, 1988, the plaintiff responded to the letter of the Planning Board and declined its invitation to submit a "Form C" application.
13. The plaintiff subsequently commenced this action in the Land Court.
14. For some time prior to 1951, Flanders Lane was used, by the Flanders family to gain access to North Road, a public way, from a large tract of land of which the locus is a part. This portion of Flanders Lane is depicted on a 1951 United States Geologic Survey Map of Chilmark, Massachusetts (Exhibit No. 12). In 1958, John M. Leavens and other area residents extended Flanders Lane in a southerly direction to "The Old Back Woods Road" in order to attain access to North Road from their property. This extension of Flanders Lane is shown on a 1980 United States Geologic Survey Map of Chilmark Massachusetts (Exhibit No. 13).
15. Flanders Lane is a private way maintained by a private association of about thirty (30) area homeowners. For its entire length, it is a single-lane unpaved road of approximately eight to ten (8-10) feet in width, passable year round and well-traveled on a daily basis by some thirty (30) area families. Flanders Lane provides access in a northerly direction to North Road, a major public way, and in a southerly direction over "The Old Back Woods Road" to South Road, another major public way.
16. The road designated as "Flanders Lane" on the plaintiff's Original and Revised Plans appears on an earlier recorded plan entitled "A Subdivision of Land in Chilmark, Mass." dated September 26, 1977 by Schofield Brothers, Inc. ("Wiesner Plan") which received approval under the Subdivision Control Law from the Chilmark Planning Board on November 28, 1977.
17. The Wiesner Plan depicts the southerly portion of Flanders Lane, thereupon designated as "Flanders Way", as providing access from Lots 6, 7 and 8, which front on Flanders Lane in the subdivision, to the nearest public highway.
18. Although Flanders Lane is often referred to as "Flanders Way" or "Flanders Road", a privately posted sign reading "Flanders Lane" has been displayed at the corner of North Road and Flanders Lane since some time in the 1950's. There is no way posted as "Flanders Way" in the area identified as such on the Wiesner Plan. The way shown on the Wiesner Plan is a logical extension of the private way posted as "Flanders Lane" inasmuch as this extension to North Road provides the most direct, if not the exclusive, access from lots 6, 7 and 8 to a public highway. Moreover, the defendant, Annabel Dietz, and the plaintiff testified accordingly that Flanders Lane appears on the 1980 United States Geologic Survey Map (Exhibit No. 13) as that way which extends northerly to North Road and southerly over "The Old Back Woods Road" to South Road.
Massachusetts General Laws Chapter 41, section 81P delineates the procedure by which an applicant may submit his plan to the Planning Board for an ANR endorsement which is not to be withheld unless such plan shows a subdivision. Paragraph twelve of General Laws, Chapter 41, section 81L provides in pertinent part that:
[The term] "subdivision" shall mean the division of a tract of land into two or more lots. . ., however, . . . the division of a tract of land into two or more lots shall not be deemed [emphasis added] to constitute a subdivision . . . if . . . every lot within the tract so divided has frontage on (a) a public way . . ., or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having in the opinion of the planning board, sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic . . . and for the installation of municipal services. . . .
Appellate courts have also interpolated an additional requirement under this section from the purpose of the law. See Gifford v. Planning Board of Nantucket, 376 Mass. 801 , 807 (1978), Hrenchuk v. Planning Board of Walpole, 8 Mass. App. Ct. 949 (1979) (rescript), Perry v. Planning Board of Nantucket, 15 Mass. App. Ct. 144 , 151 (1983). This further requirement is that there be a determination by the planning board that adequate access from the way to the proposed lots, as contemplated by section 81M, exists. Id.
In the instant case, the defendant first contends that its decision to withhold endorsement of the plaintiff's plan is warranted on the basis that the plan fails to illustrate exemption from the subdivision control law under c. 41, §81L. Quite to the contrary, however, the aforementioned facts indicate that the plan submitted by the plaintiff is exempt from subdivision control law regulation as it does not show a subdivision. The plan depicts a tract of land divided into three lots, all of which comply with applicable area and frontage requirements. These lots front on Flanders Lane, a private way which does appear on the earlier approved, endorsed and recorded Wiesner Plan.
The defendant argues next that even if "Flanders Way", as it appears on the Wiesner Plan, is a mere continuation of Flanders Lane, the "approval of one portion of a way does not constitute approval of the entire way not shown on the plan." Casagrande v. Town Clerk of Harvard, 377 Mass. 703 , 706 (1979). The defendant, however, overlooks the obvious distinction between the instant facts and those in Casagrande. In Casagrande, the Supreme Judicial Court's reasoning was based on the fact that the way in question consisted of a passable, paved surface at the juncture where the lots on the earlier endorsed plan were situated and a sand and gravel surface, which greatly impeded safe vehicular access, at the juncture where the nearby proposed lots were situated. Id. Conversely, in the present matter, because the entire length of Flanders Lane is unpaved, vehicular access thereupon is constant.
It is next necessary to examine whether or not adequate access to the lots proposed by the plaintiff is present. Hrenchuk v. Planning Board of Walpole, 8 Mass. App. Ct. 949 (1979) (rescript). Pursuant to G.L. c. 41, §81P, certain divisions of land will be relieved of Planning Board regulation and approval (ANR) where adequate vehicular access thereto can be reasonably guaranteed in some other manner. Gifford at 807, Perry at 151, Hutchinson v. Planning Board of Hingham, 23 Mass. App. Ct. 416 , 419 (1987). Consequently, even if some statutory exemption from subdivision control law under section 81L is technically or formally satisfied, the absence of "practical access" to the lots shown on the plan will bar the operation of section 81L. Id., See Gifford at 804, Hrenchuk at 949 and Perry at 154. Hence, those plans which amount to attempts to evade the overall purposes of the subdivision control law as set forth in section 81M will not qualify for section 81P endorsement. Hutchinson at 419 citing Gifford at 807-808. The plaintiff's plan is not illustrative of any such evasion. The plan depicts lots situated on Flanders Lane, a private, rural country way not unlike many other such ways found in Chilmark, Massachusetts. The dimensions of these lots, as well their points of intersection on Flanders Lane, which provides access to the nearest public roadway, are not so narrow and contorted as to impede or prevent safe, convenient and practical access. While it is, however, true that Flanders Lane is only eight to ten (8-10) feet in width and unpaved, the testimony of defendant Planning Board member, Annabel Dietz, who also is a homeowner in the area of Flanders Lane, reveals that the Planning Board would be unlikely to vote for the widening and paving of Flanders Lane due to the Town's desire to preserve the "rural character" of Chilmark. Further testimony at trial reveals that Flanders Lane is passable year round and is well-traveled by approximately thirty (30) neighborhood families on a daily basis. The Planning Board's decision to deny an ANR endorsement to the plaintiff's plan due to "inadequate access" seems then to have been based on the presence of wetlands along the frontage of the lots more than the lack of adequate vehicular access from the lots to the nearest public way. The issue of wetlands must be reserved for the local Conservation Commission. It has little if any place in a Planning Board's determination under section 81P, particuarly where, as here, the presence of "adequate access" can be justified by the weighing of other evidence presented at trial. See Gallitano v. Board of Survey and Planning of Waltham, 1 Mass. App. Ct. 269 (1980).
The law is clear that the procedure by which an applicant may secure an ANR endorsement of a plan does not vest in the Planning Board the same duties and responsibilities it has when it is called upon to approve a subdivision. Smalley v. Planning Board of Harwich, 10 Mass. App. Ct. 599 , 603 (1980) citing Gifford at 807. The procedure outlined in G.L. c. 41, §81P thus confines the judgment of the Planning Board to determining whether the plan shows a subdivision. Smalley at 604. Its endorsement is in no way a declaration that matters such as compliance with zoning laws or adequate provisions for water, sewerage, drainage or underground utility services are in existence. Id. Accordingly, it appears that the Planning Board exceeded the scope of its authority under section 81P in basing its denial of an ANR endorsement on the presence of wetlands on the plaintiff's land.
Lastly, even though the point was never fully addressed at trial, it merits consideration that the plan submitted by the plaintiff may even be entitled to an ANR endorsement under exemption (c) of section 81L.
The plaintiff's plan displays lots which have frontage on "a way in existence when the subdivision control law became effective. . ., in the opinion of the Planning Board having sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic and for the installation of municipal services. . ." G.L. c. 41, §81L(c). First, the aforementioned factual findings indicate that Flanders Lane has existed in its present form since some time in 1958. Planning Board member, Annabel Dietz, testified that subdivision control law became effective in Chilmark in 1975. Accordingly, Flanders Lane is a way which did in fact exist prior to the implementation of subdivision control law in Chilmark. Further, testimony at trial reveals that the Chilmark Planning Board would be unlikely to vote in favor of altering the present condition of Flanders Lane in order to preserve the rural character of the Town. Such testimony gives rise to an inference that the Planning Board considers the existing width, grade and construction of Flanders Lane to be suitable. It therefore appears that while the plaintiff is entitled to an ANR endorsement of his plan not only under exemption (b) of section 81L, he may also be so entitled under exemption (c).
In consideration of the foregoing, I find and rule that the Chilmark Planning Board exceeded its authority in denying an ANR endorsement to the plan filed by the plaintiff on February 1, 1988 and accordingly, the plaintiff is entitled to an ANR endorsement thereof. The decision of the Chilmark Planning Board dated February 8, 1988 is hereby annulled and the cause remanded to the Planning Board for further action not inconsistent herewith. No costs are awarded.
Judgment accordingly.
ALLEN B. FLANDERS vs. EDWARD S. FARROW, ANDREW MARVEL, ANNABEL DIETZ, WILLIAM ROSSI, RUSTY WALTON, CHRISTOPHER MURPHY, and BART SMITH, as they are the members of the PLANNING BOARD OF THE TOWN OF CHILMARK.