RALPH TISEI, TRUSTEE of BUILDERS TRUST OF CAPE COD vs. JOSIAH B. MORRILL, ROBERT G. FRASER and JOHN B. RODGERS, as they are members of the BOARD OF APPEALS of the TOWN OF LYNNFIELD.

Ralph Tisei, Trustee of Builders Trust of Cape Cod ("Plaintiff"), filed this action on May 23, 1988, seeking judicial review, pursuant to G.L. c.40A, §17, of a decision of the Defendant, Board of Appeals of the Town of Lynnfield ("Board"), denying his application for a variance in frontage to permit construction of a single-family residence on a certain parcel of land owned by him, located on Herrick Road in Lynnfield ("Locus"), or, in the alternative, an order directing the Lynnfield Building Inspector to grant his application for a building permit, on the ground that Herrick Road is a private way on which there is sufficient frontage.

The Board filed a motion for summary judgment on February 23, 1989, said motion being waived on June 26, 1989. Thereafter, a trial was held on July 7 and 27 of 1989, at which times the proceedings were recorded, and later transcribed, by a court-appointed reporter. Twenty-seven exhibits were accepted into evidence and eleven witnesses offered testimony. All of the exhibits are incorporated herein for purposes of any appeal.

On all of the evidence, I find as follows:

1. The Plaintiff acquired title to Locus by deed from one Harold B. Murphy, Trustee-in-Bankruptcy of Melch Brothers Corporation, dated August 14, 1986, recorded at Book 8501, Page 112 in the Essex South district Registry of Deeds (Exhibit No. 4). Locus is bounded and described therein as follows:

Beginning on the easterly side of Herrick Road at land of Nolan and running:

NORTHEASTERLY by land now or formerly of Nolan one hundred twenty-five (125.0) feet to a point; thence turning and running

SOUTHERLY twenty-six and 85/100 (26.85) feet to a point; thence turning and running

EASTERLY fourteen and 20/100 (14.20) feet to a point; thence turning and running

SOUTHERLY by two courses: two hundred seventy-seven and 15/100 (277.15) feet and eighty-six and 81/100 (86.81) feet, to land shown as MacDonald; thence turning and running

NORTHWESTERLY one hundred thirty-seven and 06/100 (137.06) feet by said MacDonald land to a point; thence turning and running

NORTHEASTERLY one hundred eight (108.0 ) feet to a point; thence turning and running

NORTHWESTERLY one hundred seven and 55/100 (107.55) feet to Herrick Road; thence turning and running

NORTHEASTERLY and NORTHERLY by Herrick Road one hundred eighty and 11/100 (180.11) feet and forty­four and 81/100 (44.81) feet to the point of beginning.

2. As shown on Sheet 26 of the Town of Lynnfield Assessors' Maps ("Assessors' Map") (Exhibit No. 3), Locus is numbered Lot 1685, fronting on Herrick Road in Lynnfield.

3. As shown on the Zoning Map of the Town of Lynnfield ("Zoning Map") (Exhibit No. 2), Herrick Road is situated in the "Single Residence C" zoning district. As set forth in Section 4(c) of the Lynnfield Zoning By-law ("By-law") (Exhibit No. 1), any dwelling constructed in the "Single Residence C" zone must have a minimum lot area of 40,000 square feet and minimum lot frontage of 180 feet. As shown on a plan entitled "Plan of Land in Peabody and Lynnfield, Mass.", dated November 6, 1984 ("Tisei Survey Plan") (Exhibit No. 7), Locus contains approximately 53,000 square feet of land and over 189 feet of frontage on Herrick Road. (See also Finding No. 12 below).

Herrick Road is delineated on the Zoning Map by dotted lines, thus indicating that Herrick Road is a private way either approved by the Planning Board, or laid out prior to the establishment of the Board and in use.

4. Herrick Road in Lynnfield is a way of approximately 520 feet in length, running from Essex Street in Lynnfield to the Lynnfield-Peabody Town Line, and continuing on into Peabody. A stone boundary marker is visible on the ground at that juncture of Herrick Road separating the Towns of Lynnfield and Peabody (See Exhibits No. 5A and 5C). The width of Herrick Road is essentially undetermined, although evidence offered at trial reveals that the width at its Lynnfield/Essex Street end is between 16 and 20 feet. Herrick Road consists of varying grades throughout its entire length, with its Lynnfield/Essex Street end being paved with hot-top for approximately 20 to 25 feet. This particular resurfacing of Herrick Road occurred some time in the 1960's, by persons whose identity is not known to this Court.

5. Despite its relatively unimproved condition, Herrick Road has been used by vehicles, and by persons passing on foot, since as early as 1952. Such use of Herrick Road continued until the late 1970's or early 1980's when, through the acts of persons whose identity is unclear from the record before the Court, Herrick Road was blocked at the Lynnfield-Peabody Town Line by large rocks and gravel. This portion of Herrick Road remained blocked until 1985 or 1986, at which time the Plaintiff admits to having used a backhoe to remove these and similar obstructions (i.e., brush, trash and other debris) from Herrick Road.

Herrick Road was maintained (i.e., the roadway was patched and cleared of snow) by the Highway Department, and others under contract with the Town of Lynnfield to perform such work, about two or three times a year during the late 1950's, the 1960's and the 1970's. Additionally, Herrick Road has present access to utility, water, gas and sewer easements.

6. Herrick Road is referred to as a boundary in deeds dating back as early as 1950 (Exhibit No. 12), 1962 (Exhibit No. 14), 1968 (Exhibit No. 16) and 1969 (Exhibit No. 17). Further, in addition to the aforementioned Assessors' Map and Zoning Map, Herrick Road is depicted, either by name and location or location alone, on the following plans: 1.) "Plan of Land in Peabody, Mass.", dated November 1, 1949, approved by the Peabody Board of Survey on January 16, 1950 and recorded thereafter with the Essex South District Registry of Deeds as Plan 13, in Plan Book 79 (Exhibit No. 20); 2.) "Plan of Land Situated in the Towns of Lynnfield and Peabody, containing 208.28 Acres", dated February 12, 1916 (Exhibit No. 11); 3.) "Plan of Land in Peabody, Mass.", dated October 7, 1950, recorded with the Essex South District Registry of Deeds as Plan 715 in Plan Book 1950 (Exhibit No. 13); 4.) "Plan of Land in Lynnfield Owned by Herrick Estates, Inc.", dated January 22, 1962 (Exhibit No. 15), which plan was endorsed "Approval under the Subdivision Control Law not Required" by the Lynnfield Planning Board on March 26, 1989 and 5.) "Definitive Plan 'Kings James Grants Sect. IX' Lynnfield, Mass.", dated May 10, 1976, which was also approved by the Lynnfield Planning Board on August 19, 1976 and recorded thereafter with the Essex South District Registry of Deeds as Plan 47 in Plan Book 142 (Exhibit No. 21).

8. The Plaintiff submitted an application for a building permit to the Lynnfield Building Inspector on January 20, 1988. As set forth in said application, the Plaintiff sought to construct a two-story, singly-family residence on Locus. The Plaintiff's proposal is shown on the aforesaid Tisei Survey Plan (See Finding No. 3).

9. By letter dated February 3, 1988, Lynnfield Building Inspector, Wilfred C. Rogers, notified the Plaintiff that his building permit application was denied. Mr. Rogers cited his belief that Locus "lacks frontage on a proper way" as the reason for this denial (See Exhibit No. 8).

10. Thereafter, the Plaintiff duly appealed the decision of the Building Inspector to the Board (See Exhibit No. 9). In his Petition for Hearing ("Petition"), the Plaintiff specified the following as his desired legal relief:

Obtain variance to permit the construction on a lot with less than the required frontage and/or to order the building inspector to grant the permit acknowledging that Herrick Road is a private way on which there is sufficient and the requisite frontage required.

11. The Board, with the Plaintiff's consent, considered the Plaintiff's appeal at two separate meetings, one held on March 1, 1988 and the other held on April 19, 1988. At the conclusion of day two of hearing, the Board denied the Plaintiff's Petition and affirmed the action of the Building Inspector. In so deciding, the Board rendered eleven findings of fact, two of which read as follows:

10. The . . . By-law does not specifically define a way and therefore it is the Subdivision Control Law (emphasis added) Chapter 41 which provides the applicable definitions - specifically in § 81L as follows:

a. a public way or a way which the clerk of the city or town certifies is maintained and used as 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 in relation to the proposed use of the land . . .

In reference to "a" above, the Lynnfield Town Clerk has not certified that Herrick Road is maintained and used as a public way.

In reference to "b" above, on all of the various plans submitted to the Board, Herrick Road is located outside the land subject to the particular plan. There is no evidence that "Herrick Road" is included on any "endorsed" plan.

In reference to "c" above, the Lynnfield Planning Board specifically rejects "Herrick Road" as a legal way in its August 13, 1987 letter to the Lynnfield Town Clerk (See Exhibit No. 27).

11. The Board . . . rejects the petitioner's argument that the Board can grant a variance from the . . . By­ law requirement that a frontage be on a way. Such a variance would abrogate fully the intent of the By-law regarding frontage requirements. If not on a legal way - than on what? There would be no frontage requirements, a clearly impermissible result.

12. Section 4 (c) of the By-law provides in pertinent part as follows:

Lot Area and Frontage. In all Single Residence Districts, except as herein provided, no dwelling shall be constructed on a lot having less area than the "Required Lot Area", or having less frontage on a public or private way, than the "Required Lot Frontage" . . . .

The By-law does not, however, define the phrase "public or private way".

13. The Town of Lynnfield adopted the Subdivision Control Law in about December of 1953.

In reviewing appeals brought pursuant to G.L. c.40A, §17, the Court hears the matter de novo, renders findings of fact which are independent of any findings made by the Board, and determines the legal validity of the Board's decision on the facts so found. Planning Board of Springfield v. Board of Apneals of Springfield, 355 Mass. 460 , 462 (1969); Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 292 (1972); Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423 , 426-427 (1984). The Court will annul the decision of the Board where such decision is found to have been based on some legally untenable ground or where it is determined to be arbitrary or capricious, and hence in excess of the Board's given authority. Geryk v. Zoning Board of Appeals of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 , 349 (1985); Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343 , 348 (1986).

The decision of the Lynnfield Building Inspector denying the Plaintiff's application for a permit to construct a single-family residence on Locus is premised solely on the Building Inspector's belief that Locus lacks sufficient frontage on a proper way. Similarly, the Board's affirmation of the Building Inspector's determination is attributable to the Board's concern that Locus lacks adequate frontage on such way. In so holding, the Board acknowledges that the term "private way" is not defined in the provisions of the By-law and, accordingly, applies the Subdivision Control Law, G.L. c.41, §81K-81GG, as the governing source for such definition in this instance.

There is no suggestion in the record that the Plaintiff's proposal constitutes a "subdivision" under G.L. c.41, §81L, nor is the present matter an appeal of a planning board's decision to deny "ANR" approval of the Plaintiff's plan pursuant to G.L. c.41, §81BB. Moreover, the existence of the Plaintiff's lot is not questioned herein by the Board. Accordingly, I find that the Board misconstrued that portion of §81L, which provides the definition of a "nonsubdivision", by using such definition to define a "way".

The Lynnfield Zoning By-law does not specifically define the terms "public way" or "private way", although the parties hereto do concede that Herrick Road does not constitute a "public way". The law is well-settled that, in the absence of an express definition, the meaning of a word or phrase used in a local zoning enactment is a question of law, Kurz v. Board of Appeals of North Reading, 341 Mass. 110 , 112 (1960), and is to be determined by ordinary principles of statutory construction. Kurz at 112; Framingham Clinic, Inc. v. Zoning Board of Appeals of Framingham, 382 Mass. 283 , 290 (1981). Undefined terms included in a By-law are to be read in the context of the law as a whole, giving the language its common and approved meaning. Foster v. Mayor of City of Beverly, 315 Mass. 567 , 569-570 (1944); Williams v. Inspector of Buildings of Belmont, 341 Mass. 188 , 191 (1960); Jackson v. Building Inspector of Brockton, 351 Mass. 472 , 475 (1966); Langevin v. Superintendent of Public Buildings of Worcester, 5 Mass. App. Ct. 892 (1977); Framingham Clinic, Inc. at 290. The usual and accepted meanings of the words are derived from sources presumably known to the enactors of the By-law, such sources including other legal contexts and dictionary definitions. Framinaham Clinic, Inc. at 290 citing Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977).

Generally speaking, a "way" is a passage, path, road or street. BLACK's LAW DICTIONARY 1428 (5th ed. 1979). The term "way" is also defined in G.L. c.90, §1 as "any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers". Insofar as the parties hereto agree that Herrick Road is, at the very least, a passage or path, it is next necessary to determine whether, on all of the evidence before the Court, Herrick Road meets the definition of a "private way", as discussed below.

In an opinion dated February 24, 1943, the Justices of the Massachusetts Supreme Judicial Court touched upon the issue of what constitutes a "private way". See Opinion of the Justices, 313 Mass. 779 (1943). There, the Justices noted that the words "private way" have a broader meaning than commonly understood or as used in opinions of the Court. Specifically, the Justices found that the definition of "private way" may well include the following meaning:

". . . defined ways for travel, not laid out by public authority or dedicated to public use, that are wholly the subject of private ownership, either by reason of the ownership of the land upon which they are laid out by the owner thereof (see Morse v. Stocker, 1 Allen 150 ; Munroe v. Worthington Pump & Machinery Corp., 245 Mass. 474 , 478), or by reason of ownership of easements of way over land of another person. . . ."

Subsequent cases have followed this definition of "private way". See W. D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct. 18 , 19-20 (1979); Newburyport Redevelopment Authority v. Commonwealth, 9 Mass. App. Ct. 206 , 228 (1980).

The evidence before the Court reveals that, pursuant to this accepted definition, Herrick Road is a "defined way for travel, not laid out by public authority or dedicated to public use, that [is] wholly the subject of private ownership. . . ." The parties introduced evidence indicating that Herrick Road is visible and capable of being located on the ground (See Exhibits No. 5A through 5C, 23A through 23E and 24A through 24P), with widths ranging from 8 to 20 feet along its entire length. [Note 1] Further, with the exception of the years spanning the late 1970's through 1986, at a maximum, Herrick Road has been used by vehicles, and by persons passing on foot, since at least 1952. In addition, Herrick Road is shown as a "defined way for travel" on certain plans (See Finding No. 7), one having been approved by the Peabody Board of Survey (See Exhibit No. 20) and two others having been approved by the Lynnfield Planning Board (See Exhibits No. 15 and 21). Moreover, Herrick Road's depiction on the Town Zoning Map, as well as its reference as a boundary in deeds dating back as early as 1950, serve as further indications of its status as a "private way". Accordingly, I find that the Plaintiff's proposed use of Locus involves the construction of a singly-family residence, having ". . . frontage on a . . . private way", as required under the By-law. In so finding, I note that the construction of one single-family dwelling, having access to the nearest public way in Lynnfield (Essex Street) over Herrick Road, will present an insignificant, if any, increase in the existing flow of traffic thereon and will pose little, if any, threat to the safety of those so using Herrick Road.

In consideration of the foregoing, and in view of the fact that the Plaintiff merely prpposes to construct one single-family residence on Locus, said residence conforming in all respects to the By-law's requirements for both minimum lot area and minimum frontage, I find and rule that the Board exceeded its authority in refusing to overturn the Lynnfield Building Inspector's decision to deny the Plaintiff's application for a building permit, on the ground that Locus "lacks proper frontage on a way". The decision of the Lynnfield Board of Appeals is hereby annulled and the matter remanded to the Lynnfield Building Inspector for further consideration and action consistent herewith.

Judgment accordingly.