MISC 131685

March 6, 1990

Norfolk, ss.



By this action, filed on January 17, 1989, the Plaintiff, Gordon N. Poulos, Trustee of Plain Street Realty Trust ("Poulos"), seeks judicial review, pursuant to G.L. c.41, §81BB, of a decision of the Defendant, Planning Board of the Town of Braintree ("Board"), denying an endorsement, "approval under the subdivision control law not required", of a plan entitled "Plan of Land, Liberty Street, Braintree, Norfolk County, Mass.", dated October 3, 1988, by Yunits Engineering Co., Inc. ("Lot Division Plan" or "Plan) (Exhibit No. 2).

On April 28, 1989, a motion for summary judgment was filed on behalf of Poulos. This motion was heard and denied on Oqtober 12, 1989. The matter proceeded to trial on February 8, 1990, at which time the Court appointed a stenographer to record and transcribe the evidence. Testimony was presented by Poulos, as well as traffic consultant, Paul Laponias, and Braintree Fire Captain, John K. Grandy. Eight exhibits, all of which are incorporated herein for purposes of any appeal, were accepted into evidence. A Statement of Agreed Facts was also submitted to the Court.

Upon consideration of all of the evidence, I find as follows:

1. Poulos is the owner of a triangular shaped parcel of land, consisting of approximately 7.5 acres, fronting on Liberty Street in Braintree ("Locus"). This property is known as and numbered 901 Liberty Street.

2. Liberty Street is a paved public way of approximately forty feet in width, with traffic lanes running in both directions. It is a way suitable for travel by both ordinary and public vehicles.

3. Locus is situated in a "Residence B" zoning district, in which district the following dimensional regulations apply (See By- Law Section 135-701; Exhibit No. 1):

Minimum Lot Size 15,000 square feet

Minimum Lot Width 100 feet

Minimum Lot Frontage 50 feet

Minimum Lot Depth 100 feet

Minimum Front Yard 20 feet

Minimum Side Yard 10 feet

Minimum Rear Yard 30 feet

4. As shown on the Lot Division Plan, Poulos proposes to divide Locus into twelve lots, all of which contain at least fifty feet of frontage on Liberty Street.

5. There is a guardrail located within the Liberty Street right of way, approximately seven feet from the boundary of Locus. As shown on the Lot Division Plan, this guardrail extends from a railroad bridge at the southeasterly corner of Locus, and runs northerly for about 650 feet along Lots No. 1 through 8. It ends approximately midway across the frontage of Lot No. 8.

6. The State Department of Public Works ("State DPW") installed the guardrail on Liberty Street due to the existence of a downward slope between such street and portions of Locus. It is the policy of the State DPW to remove guardrails when the reason for their installation has been extinguished (See Exhibit No. 4).

7. Neither state nor local approval would be required for Poulos to regrade Locus, so as to fill the aforesaid slope. An Order of Conditions authorizing such filling and construction has been issued to Poulos by the Braintree Conservation Commission.

8. In mid-December of 1988, Poulos submitted a "Form A" application to the Board, seeking a determination, pursuant to G.L. c. 41, §81P, that Locus, as shown on the Lot Division Plan, does not require approval under the Subdivision Control Law.

9. On December 20, 1988, the Board voted to deny Poulos' application for "ANR" endorsement of the Plan. As evidenced by its decision dated December 27, 1988, (Exhibit No. 3), the Board's denial was based on a "lack of definition of proper access".

In an appeal brought pursuant to G.L. c. 41, §81BB, the developer must sustain his burden of proving to the trier of fact that the decision of the Planning Board exceeded its authority and must be annulled. Rettig v. Planning Board of Rowley, 332 Mass. 476 , 479 (1955); Mac-Rich Realty Construction Inc. v. Planning Board of Southborough, 4 Mass. App. Ct. 79 , 81 (1976); Canter v. Planning Board of Westborough, 4 Mass. App. Ct. 306 , 307 (1976). In reviewing such appeals, the Court conducts a de novo hearing, makes its own findings of fact and, on the facts so found, rules upon the validity of the determination of the Board. Rettig at 479; United Reis Homes, Inc. v. Planning Board of Natick, 359 Mass. 621 , 623 (1971); Mac-Rich at 81. The Court must confine its review to the Board's reasons for disapproving the plan in question. Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977).

The sole issue before the Court is whether the Board exceeded its authority in withholding, for the reasons stated, an "ANR" endorsement from the Lot Division Plan submitted by Poulos.

Massachusetts General Laws, Chapter 41, section 81P sets forth the procedure by which an applicant may submit his plan to the Planning Board for an "ANR" endorsement, which endorsement is not to be withheld unless such plan shows a subdivision. The definition of a "nonsubdivision" is set forth in the twelfth paragraph of G.L. c. 41, §81L as follows:

the division of a tract of land into two or more lots will not be determined to constitute a subdivision within the meaning of the subdivision control law if, at the time when it is made, every lot within the tract so defined 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 Section 81L from the purpose of the law, said requirement being a determination by the planning board that adequate access from the way to the proposed lots exists, as contemplated by G.L. c. 41, §81M. 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). Consequently, even if some statutory exemption from the Subdivision Control Law under G.L. c. 41, §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. Gifford at 804; Hrenchuk at 949; Perry at 154; Corcoran v. Planning Board of Sudbury, 406 Mass. 248 , 250-251 (1989). Accordingly, those plans which illustrate an attempt to evade the overall purposes of the Subdivision Control Law, as set forth in G.L. c. 41, §81M, will not qualify for "ANR" endorsement under Section 81P. Hutchinson v. Planning Board of Hingham, 23 Mass. App. Ct. 416 , 419 (1987); Gifford at 807-808.

Insofar as the twelve lots proposed by Poulos herein contain sufficient frontage on an existing public way, the Board confines its arguments in support of its decision to the alleged failure of the Lot Division Plan to meet the test of "adequate access". The Board focuses its position on what it considers to be the two factors impeding such access from Liberty Street to the lots: 1.) the 3 to 1 slope which exists along Liberty Street, fronting Lots No. 1 through 6 on the Plan, and 2.) the 650 foot long guardrail which runs along Liberty Street, separating Lots No. 1 through 8 from the street. Contrary to the Board's assertions, however, I find, for the reasons provided below, that, in light of Poulos' proposed development plans, neither the slope nor the guardrail constitutes an insurmountable impediment to a finding that adequate access from Liberty Street to the lots is present.

A Planning Board is authorized to withhold "ANR" endorsement of plans in instances where the access implied by the frontage is illusory in fact. Fox v. Planning Board of Milton, 24 Mass. App. Ct. 572 , 574 (1987). Cases in which access has been held to be illusory include lots with frontage on a limited access or unconstructed highway, See Hrenchuk supra; McCarthy v. Planning Board of Edgartown, 381 Mass. 86 (1980); Perry supra, and lots fronting on a way of impassable condition, See Rettig supra. See also Gifford supra; Gallitano v. Board of Survey and Planning of Waltham, 10 Mass. App. Ct. 269 (1980). In order to fulfill the objective of "adequate access" under G.L.c. 41, §81M, and to prove entitlement to "ANR" endorsement under §81P, the way on which the lots contain frontage must be of sufficient width, suitable to accommodate motor vehicle traffic and able to provide access to fire equipment and other emergency vehicles. Hutchinson at 421 citing North Landers Corp. v. Planning Board of Falmouth, 382 Mass. 432 , 441 (1981). The evidence reveals that Liberty Street is neither an unconstructed, nor a limited access, highway. Quite to the contrary, and as both Poulos and the Board stipulate, Liberty Street is a fully constructed and paved public way in the Town of Braintree. Additionally, as it is approximately forty feet in width and has lanes for traffic running in both directions, Liberty Street is suitable for travel by both ordinary and public vehicles. Inasmuch as there is no impediment to Poulos' filling and regrading the property, which action will result in the removal of the slope, and hence the extinguishment of any need for the guardrail, I find that there is adequate access from Liberty Street to the twelve proposed lots, so as to support a grant of "ANR" endorsement to Poulos' Plan.

Accordingly, as the sole concern of the Planning Board in considering a request for an "ANR" endorsement under G.L. c. 41, §81P must be the existence of the requisite frontage of all the proposed lots on a public way, and the true availability of access implied from the Plan, I find that the Braintree Planning Board exceeded its authority in withholding such endorsement from Poulos' Lot Division Plan. See Fox at 574-575. The decision of the Board is therefore annulled and the matter remanded to the Board, with instructions to endorse the Lot Division Plan as petitioned for, within thirty (30) days of the entry of a final judgment herein, after all appeals have been resolved.

Judgment accordingly.