STANTON H. ZARROW and MICHAEL J. N. GRAY as they are Trustees of TCW INWOOD LAND REALTY TRUST vs. THE TOWN OF WILMINGTON and THE TOWN OF WILMINGTON PLANNING BOARD.

This is an action brought pursuant to G.L. c.231A, §§1,2 and G.L. c.240, §14A. The plaintiffs, Stanton H. Zarrow and Michael J. N. Gray as Trustees of TCW Inwood Land Realty Trust (hereinafter. "TCW"), seek a declaration that TCW may provide access to its proposed office park development in the City of Woburn ("Woburn") by constructing an access drive over a parcel of land it owns in the Town of Wilmington ("Wilmington"), without first obtaining subdivision control approval or site plan review from the Town of Wilmington. The plaintiffs also seek a declaration that Section 6.4 of the Wilmington zoning by-law (the "by-law") does not apply to TCW's proposed access drive across the Wilmington Parcel.

The plaintiff filed a motion for summary judgment and the motion was argued by counsel. After reviewing the complaint (which was not answered), the affidavits and admissions on file, I rule that there is no genuine issue as to any material fact and that the plaintiff is entitled to summary judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976). Based on the complaint, affidavits and admissions, I find the following to be the undisputed material facts:

1. The plaintiffs, Stanton H. Zarrow and Michael J. N. Gray are the trustees of the TCW Inwood Land Realty Trust, a trust formed by Declaration of Trust dated November 4, 1987 and recorded at the Middlesex South District Registry of Deeds at Book 18684, Page 60 and at the Middlesex North District Registry of Deeds at Book 4309, Page 175.

2. The defendant, Town of Wilmington, is a body politic and a political subdivision of the Commonwealth of Massachusetts, with a town meeting form of town government.

3. The defendant, Town of Wilmington Planning Board, is the planning board of Wilmington.

4. TCW is the owner of a parcel of land located in the City of Woburn and the Towns of Reading and Wilmington (the "Combined Parcel").

5. The Combined Parcel consists of approximately 2.84 acres in Wilmington (the "Wilmington Parcel"), 3.13 acres in Reading (the "Reading Parcel") and 46.94 acres in Woburn (the "Woburn Parcel").

6. TCW proposes to develop four commercial office buildings on the Woburn Parcel (the "office park"), and to provide access to the office park by constructing an access drive over the Woburn, Reading and Wilmington Parcels. The four office buildings will be located solely on the Woburn parcel.

7. On November 10, 1987, Edward J. Callan sold the Combined Parcel to TCW by deed recorded at the Middlesex South District Registry of Deeds at Book 18684, Page 64 and at the Middlesex North District Registry of Deeds at Book 4309, Page 179.

8. On July 14, 1988, the Woburn Planning Board voted to approve TCW's definitive subdivision plan for the proposed office park.

9. On September 12, 1989, the Woburn Planning Board held a meeting at which the Board considered TCW's amended definitive subdivision plan for its proposed office park (the "amended subdivision plan").

10. Prior to September 12, 1989, the Town of Wilmington, through its duly elected or appointed representatives, had received the amended subdivision plan.

11. Prior to September 12, 1989, the Wilmington Planning Board, through its duly elected or appointed members, had received the amended subdivision plan.

12. Representatives of Wilmington attended the Woburn Planning Board's September 12, 1989 meeting concerning the amended subdivision plan and objected to the approval of said plan at that time.

13. At the September 12, 1989 meeting of the Woburn Planning Board, the Board voted to approve TCW's amended subdivision plan. The decision of the Woburn Planning Board approving the amended subdivision plan is recorded in the Middlesex South District Registry of Deeds at Book 20185, Page 600. The amended subdivision plan which was approved for the Woburn Parcel includes a depiction of the proposed private access drive over the Wilmington Parcel which is presently one lot. The amended subdivision plan as it depicts the proposed access drive over the Wilmington Parcel does not show separate lot numbers nor does it show any dimensions for separate lots. As it depicts the Woburn Parcel, however, the amended subdivision plan does show separate lot numbers and the square footage and dimensions of the separate lots depicted thereon.

14. Pursuant to Mass. R. Civ. P. 36, TCW requested that the defendants admit that the amended subdivision plan states that the entire Wilmington Parcel will be used for providing access to the office park. Because the defendants did not answer in a timely fashion as required by Mass. R. Civ. P. 36 (a), said request was admitted.

15. TCW entered into a covenant with the Woburn Planning Board which set forth certain conditions with regard to the amended subdivision plan. TCW covenanted to construct the access way from the Woburn parcel, over the Reading and Wilmington parcels, through to West Street in Wilmington. TCW agreed to construct the access way substantially as shown on a plan entitled "Sketch Plan Showing Easement for Access and Utilities in Wilmington and Reading, Mass.", dated March 14, 1988, prepared by Hayes Engineering, Inc. This covenant is recorded at the Middlesex South Registry of Deeds at Book 20185, Page 603.

16. The Wilmington Parcel is located in a "General Industrial" zoning district which permits, as a matter of right, the use of land for business and professional offices as a principal business use. Section 1.3.16 of the by-law defines a "principal use" as ''[t]he main or primary purpose for which a structure or lot is designed, arranged or intended, or for which it is permitted to be used, occupied or maintained under this By-Law."

17. The Woburn Parcel is located in an "Office Park" zoning district, which permits the use of land for business and professional offices as a matter of right.

18. West Street in Wilmington is the only street that allows access to the Wilmington and Reading Parcels.

19. Wilmington has adopted subdivision control rules and regulations (the "Wilmington subdivision rules") pursuant the G.L. c.41, §§81K-81GG (the "Massachusetts subdivision control law").

20. Wilmington has set forth, in writing, its position that in order to proceed with the construction of an access drive over the Wilmington Parcel, TCW must receive subdivision control approval from the Wilmington Planning Board. TCW, on the other hand, has asserted that it may lawfully construct an access drive over the Wilmington Parcel without obtaining subdivision approval from the Wilmington Planning Board.

21. G.L. c.41, §81L, twelfth par. and the Wilmington subdivision rules define "subdivision", in pertinent part, as "the division of a tract of land into two or more lots. . ."

22. G.L. c.41, §81L, fourth par. and the Wilmington subdivision rules define a "lot" as "an area of land in one ownership, with definite boundaries, used, or available for use, as the site of one or more buildings."

23. Section 3.1, Section 6.5 and Table 1 of the by-law governs site plan review. Section 3.1 is entitled "General Principal Use Provisions" and provides that if a principal use, listed in Table 1 as permitted as of right or by special permit, is followed by the Letter "R", site plan review is required in accordance with Section 6.5. Table 1 is entitled "Principal Use Regulations" and specifies that site plan review is required for a business use, such as a business or professional office, which is permitted in the General Industrial District. Section 6.5 is entitled "Site Plan Review" and sets out the general regulations and procedures for site plan review. Section 6.5.1 provides:

General Regulations - In all instances specified in Section 3, Table 1 Principal Use Regulations as requiring site plan review and for all accessory uses thereto, no building permit shall be issued in any case where a building is to be constructed or to be externally modified, altered or enlarged, except in conformity with site plan review. No use, including parking shall be expanded in ground coverage, except in conformity with site plan review.

24. TCW has never obtained site plan review for any use of the Wilmington Parcel.

25. At the present time, there is a concrete block building on the Wilmington Parcel which is used by TCW for storage. TCW intends to demolish the concrete building.

26. TCW will not build or expand any buildings on the Wilmington Parcel.

27. The access drive across the Wilmington Parcel does not involve the construction or expansion of any structure having walls and a roof.

28. Pursuant to Mass. R. Civ. P. 36, TCW requested that the defendants admit that TCW does not propose to expand any use of the Wilmngton Parcel in accordance with the amended subdivision plan. Because the defendants did not answer in a timely fashion as required by Mass. R. Civ. P. 36 (a), said request was admitted.

29. Section 6.4 of the by-law is entitled "Parking and Site Design Standards" and contains provisions which set out the regulations for off-street parking facilities and for related loading areas and driveways.

30. All of the parking facilities and related loading areas and driveways for the office park will be located on the Woburn Parcel.

There are three issues before the Court on TCW's motion for summary judgment: whether TCW must obtain subdivision control approval from the Wilmington Planning Board in order to construct the access drive across the Wilmington Parcel (Count I of the complaint); whether TCW's construction of the access drive requires site plan approval by the Wilmington Planning Board (Count II); and whether the provisions of section 6.4 of the by-law which govern off-street parking facilities and related loading areas and driveways apply to TCW's use of the Wilmington Parcel as an access drive (Count III).

With regard to the last issue, I rule that because all of the parking facilities, related loading areas and driveways for the office park will be located on the Woburn parcel, and not in Wilmington, the provisions of section 6.4 of the by-law which set out the regulations for off-street parking facilities and for related loading areas and driveways do not apply to TCW's proposed access drive.

I next address the issue of whether TCW must obtain subdivision approval from the Wilmington Planning Board in order to construct the access drive across the Wilmington parcel. The defendants contend that the mere fact that the Wilmington parcel will be used in connection with the subdivision on the Woburn parcel causes the Wilmington parcel to also be a subdivision and therefore, TCW must obtain planning board approval before it constructs the access drive. However, both the Massachusetts Subdivision Control Law and the Wilmington Subdivision Rules clearly contemplate that approval of a proposed subdivision plan by the planning board of a city or town is only required when one intends to make a subdivision within that city or town. G.L. c.41, §81O ("No person shall make a subdivision of any land in any city or town in which the subdivision control law is in effect unless he has first submitted to the planning board of such city or town for its approval a plan of such proposed subdivision..."); Wilmington Subdivision Rules, section II B ("No person shall make a subdivision within the meaning of the subdivision control law of any land within the town unless and until a Definitive Plan of such subdivision has been submitted and approved by the planning board as hereinafter provided."). Therefore, TCW need not apply for subdivision approval from the Wilmington Planning Board merely because the Wilmington parcel is to be used in connection with the office park subdivision in Woburn. TCW need only obtain the approval of the Wilmington Planning Board if the construction of the access drive will itself create a subdivision on the Wilmington parcel.

Accordingly, the threshold question is whether TCW's access drive will create a subdivision within the town of Wilmington. A subdivision is defined in both G.L. c.41, §81L and the Wilmington Subdivision Rules as the "division of a tract of land into two or more lots..." A lot is defined as an "area of land in one ownership, with definite boundaries, used, or available for use, as the site of one or more buildings."

TCW contends that the access drive as shown on the amended subdivision plan approved by the Woburn Planning Board does not include any new lot lines in Wilmington and therefore, does not divide the Wilmington parcel into two or more lots. There appears to be no authority on the question of whether an access drive will divide the parcel of land upon which it is constructed into separate lots for subdivision purposes. The Courts in several other states, however, have considered a similar issue--whether the existence of a road which runs through a tract of land in single ownership, splitting the tract into two pieces, divides the tract into two separate lots for subdivision purposes. For example, in The Board of Environmental Protection v. Bergeron, 434 A.2d 25, 27 (Me. 1981), the Maine Supreme Judicial Court held that the existence of a public road running through a tract of land owned by the defendants did not as a matter of law constitute a demarcation between separate lots of land. The Court held that while the presence of a road dividing a tract of land may be highly relevant in determining whether the land in question is a single parcel for subdivision purposes, this determination depends upon a variety of factors, including the tract's past use. Id.

Similarly, in State v. Emmich, 34 Ore. App. 945, 580 P.2d 570 (1978), the defendant purchased a parcel of land which was intersected by a road. The Oregon Court of Appeals found that the defendant had purchased the land as a single unit and had dealt with the parcel as a single unit. Id. The Court looked to other land-use contexts and found that "a parcel of land does not lose its unitary character simply by the happenstance of an intersecting boundary line, street or dedicated road." Id. at 571. The Court further stated "[w]e are not directed to any case where land was held to be noncontiguous due to separation by anything short of an intervening geographical barrier or a parcel of land in separate ownership." Id. Accordingly, the Court held that the defendant's property was a single parcel of land in spite of the road running through it because of the fact that the defendant had purchased and treated the land as a single parcel. Id.

The New Hampshire Supreme Court reached a different conclusion in Keene v. Town of Meredith, 119 N.H. 379, 402 A.2d 166 (1979). In this case, the plaintiffs owned two parcels of land--one on each side of a public road--one of which they wished to sell. Id. at 167. The Town contended that the two lots the plaintiff owned constituted a single parcel of land in spite of the road running through the property and that therefore, the plaintiffs' sale of one of the lots created a subdivision requiring subdivision approval. Id. The Court, however, found that the two lots were described separately in the deed to the plaintiff, were taxed by the town as separate lots and were also identified on the town tax map as separate lots with separate lot identification numbers. Id. Consequently, the Court held that there were two individual lots separated by a road because they had been treated by the plaintiffs and by the town as separate lots. Id.

In these cases, determining whether a road running through a piece of property constitutes a demarcation between separate lots of land depends not upon the mere fact of the existence of the road but rather, upon how the pieces which are separated by the road are treated--as one parcel or two. Therefore, a determination must be made on the facts of each case.

While not controlling in this Commonwealth, these cases do provide some guidance in wrestling with the issue of whether TCW's access drive will divide the Wilmington Parcel into separate lots or whether the Wilmington Parcel will remain a single lot after the drive is constructed. There are facts in this case which distinguish it from the aforementioned line of cases. TCW's proposed access drive will be a private, not public, road. However, the fact that the roads in question in these cases were public does not seem to have been a factor in those Courts' consideration of whether the roads constituted a demarcation between two separate lots.

Perhaps the most important difference is that in these cases, the road which ran through the property was in existence when the party in question purchased the property and therefore, the landowner could not be seen to have been responsible for any division of land which might be deemed to have occurred by the existence of the road. In the instant case, however, the proposed drive which could be considered to divide the Wilmington Parcel into separate lots is not yet in existence and is to be constructed by the plaintiff, so it may give the appearance that the plaintiff is in fact subdividing its land. In spite of these differences, I find the reasoning in the aforementioned cases to be of assistance in considering whether the proposed access drive will divide the Wilmington Parcel into separate lots requiring subdivision approval.

The Wilmington Parcel is presently one lot. Whether it remains so depends upon the way in which TCW will treat the Wilmington Parcel once the access drive is constructed. TCW's amended subdivision plan as it depicts the proposed access drive does not show any separate lot numbers nor does it show any dimensions for separate lots. In addition, the amended subdivision plan for the Woburn office park states that the entire Wilmington Parcel will be used for providing access to the office park, an indication that no use of the Wilmington Parcel other than for access to the office park is intended. This conclusion is supported by the fact that TCW intends to demolish the one building which is presently on the Wilmington Parcel and will not build any other buildings on this parcel. Consequently, I rule that the amended subdivision plan approved by the Woburn Planning Board treats the Wilmington Parcel as a single lot with a single use; to wit, providing access to the office park. Accordingly, I rule that TCW's proposed access drive will not divide the Wilmington Parcel into separate lots, thereby creating a subdivision, and that therefore, TCW need not obtain subdivision approval from the Wilmington Planning Board in order to construct the drive. [Note 1]

The final issue to be resolved is whether the construction of the proposed access drive requires site plan approval by the Wilmington Planning Board. For the reasons hereinafter stated, I rule that it does.

Section 3.1, Section 6.5 and Table 1 of the by-law govern site plan review. Section 3.1 provides that if a principal use, listed in Table 1 as permitted as of right or by special peimit, is followed by the letter "R", site plan review is required in accordance with section 6.5. Table 1 indicates that site plan review is required for a business use, such as a professional office, which is permitted in the General Industrial District. The use of the Wilmington Parcel for business access to TCW's office park in Woburn is clearly a business use. See, Lapanas v. Zoning Board of Appeals of Brockton, 352 Mass. 530 , 532 (1967) (where the Supreme Judicial Court held that the use of a strip of residentially zoned land in Brockton for access to land in Abington which was zoned for business use was a business use). Further, the use of the Wilmington Parcel as an accss drive is a principal use within section 1.3.16 of the by-law because the main or primary purpose for which the lot is intended is for the access drive. Therefore, the proposed access drive is a principal business use which requires site plan review in accordance with section 6.5.

TCW contends that section 6.5.1 governs when site plan review of a use is required. TCW further maintains that is only when a building is to be constructed or externally modified or a use is to be expanded in ground coverage. TCW therefore concludes that since its proposed use of the Wilmington Parcel will not involve the construction or external modification of a building, nor will it involve the expansion in ground coverage of a use, site plan review is not required for the construction of the proposed access drive. I rule that TCW misinterprets the by-law. It is section 3.1 and Table 1 which specify which uses require site plan review, not section 6.5.1. Section 6.5.1 is more limited and merely provides that a building permit cannot issue nor can a ground use be expanded, except in conformity with site plan review. The language "in conformity with site plan review" presupposes that there has already been site plan review and provides that no building permit shall issue and no ground coverage shall be expanded except in conformity with what has already been reviewed This means, for example, that if site plan review has been obtained, a building permit cannot issue if the building specifications are not in conformity with that site plan review. Similarly, a ground use cannot be expanded unless it complies with the site plan review. Section 6.5.1 places restrictions on use of the land after site plan review has already been obtained. Therefore, I rule that section 6.5.1 does not specify the only two instances when site plan review is required and that the uses specified in Table 1 require site plan review regardless of whether a building will be constructed or externally modified or whether a use will be expanded in ground coverage.

This conclusion is further supported when one considers the fact that the language of section 3.1 does not mandate that site plan review be in accordance with section 6.5.1. Rather, section 3.1 requires that site plan review be in accordance with section 6.5, which section sets out the general regulations and procedures for site plan review. If site plan review were only to be required in those two instances set out in section 6.5.1, the reference in section 3.1 to the whole of section 6.5 would be overly inclusive. For the aforementioned reasons, I rule that TCW's proposed access drive is a principal business use requiring site plan review and that TCW must obtain site plan review prior to the construction of the access road.

I rule that the plaintiff's motion for summary judgment is hereby allowed as to Counts I and III and is hereby denied as to Count II. Summary judgment is to be granted in favor of the defendants on Count II.

Judgment accordingly.