STANLEY LIBUCHA and PATRICIA LIBUCHA v. THE TOWN OF BELCHERTOWN; JAMES NATLE, DANIEL BEAUDETTE, GEORGE SYNAN, LOUIS FAASEN and CHRISTOPHER LAURENZO as members of the BELCHERTOWN PLANNING BOARD; JAMES BARRY, RONALD APONTE, ALFRED ROCCANTI, MICHAEL REARDON and GERALD GRASSO as memebers of the BELCHERTOWN BOARD OF SELECTMEN; and PAUL ADZIMA as BELCHERTOWN BUILDING INSPECTOR and ZONING ENFORCEMENT OFFICER.

Introduction

This is a case about the adequacy of a road to provide “frontage” under the Belchertown zoning bylaw and the deference owed the board that deemed the road inadequate for that purpose when presented with a request for ANR plan endorsement. [Note 1] The road at issue is Grela Terrace/Channel Drive in Belchertown, a half-mile long dirt and gravel private way that loops around Lake Holland. Plaintiffs Stanley and Patricia Libucha own a three-acre parcel on the road and propose to divide it into three buildable lots. The lots are shown on the ANR plan they submitted to the Belchertown Planning Board.

For a lot to be “buildable” in Belchertown, it must have frontage as defined in the town’s zoning bylaw. Belchertown requires frontage on a “street” (Bylaw, §145-2 — definition of “frontage”), and a “street” is defined as (1) a public way, (2) a private way shown on an approved subdivision plan, or (3) a private way “otherwise qualifying a lot for access and frontage under M.G.L. c. 41, §81L” (Bylaw, §145-2 — definition of “street”). Grela Terrace/Channel Drive is neither a public way nor an approved subdivision road. It can thus provide frontage only if it “otherwise qualif[ies]” under c. 41, §81L, and it can do so only if it meets the three-part test in clause (c) of that statute, i.e. it must be (1) “a way in existence” when the subdivision control law became effective in Belchertown, (2) adequate for the installation of municipal services to serve the land in question, and (3) “in the opinion of the planning board, [of] sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby.”

The road was “a way in existence when the subdivision control law became effective in the city or town in which the land lies.” It pre-dates 1950 and the town adopted the subdivision control law in 1957. [Note 2] The road is adequate “for the installation of municipal services to serve such land and the buildings erected or to be erected thereon.” Municipal water and sewer lines have already been installed the entire length of the road, with hookups available for the Libucha property. The crux of the controversy is this. Could the Belchertown Planning Board reasonably conclude that the road did not meet the third test — that it did not have “sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby”? If so, its refusal to endorse the ANR plan must be upheld. If not, the Libuchas are entitled to such endorsement.

The Libuchas contend that the Board applied the wrong standard and misconstrued the facts when it denied ANR endorsement, and filed this G.L. c. 41, §81BB appeal from that ruling as well as an associated request under G.L. c. 240, §14A for a declaration that their proposed lots have sufficient “frontage” under the Belchertown zoning bylaw to be buildable. [Note 3] The c. 41, §81BB and c. 240, §14A questions are effectively the same since, as noted above, such frontage exists if, but only if, the road is found sufficient under c. 41, §81L to provide it. [Note 4]

The case was tried before me, jury-waived. I also took a view. Based on the testimony and exhibits admitted into evidence at trial, my assessment of the credibility, weight, and inferences to be drawn from that evidence, my observations at the view, and as more fully set forth below, I affirm the Board’s ruling and DISMISS the Libuchas’ claims.

Facts

These are the facts as I find them after trial.

Grela Terrace/Channel Drive [Note 5] is a dirt and gravel private way, approximately a half-mile long, starting at Federal Street in Belchertown, looping around Lake Holland, and completing the loop back at Federal Street. See Ex. 1. There are no streetlights. It does not intersect with any other roads, and is thus used only by the residents and visitors of the twenty-three homes it presently serves and the town vehicles that go to and from the odor control/pumping station located on its back section. Most is relatively flat — the former railroad right of way particularly so — but it banks in places (i.e. one side is higher than the other) and there are two sharp slopes, each with a 14.5% grade, one on the Grela Terrace side and the other on the Channel Drive section. These slopes cause difficulty when it snows. The roadway twists and turns on the Channel Drive side, has several sharp corners, is never more than 20’ wide (the width of the right of way) at any point, [Note 6] and the travelled surface narrows to as little as 11’- 12’ in several key locations where the lake, wetlands, culverts, trees, utility poles or structures draw close. There are many potholes which fill up with water when it rains (the road is not graded for drainage, and potholes form continually as a result) and they, along with the narrowness of the road, keep speeds under 15 – 20 mph at best. [Note 7] Fire trucks and other wide vehicles cannot reasonably go faster than 5 mph. All vehicles must also be prepared, at several locations, to slow down further or pull over and stop for oncoming cars and trucks. There is often insufficient space to pull over without driving onto a resident’s property. Except at the back stretch of the road (the former railroad right-of-way), reversing direction requires the use of a resident’s driveway.

The homes along the road all pre-date both subdivision control and zoning. [Note 8] Most are former summer cottages. There are no businesses. [Note 9]

Water and sewer lines have been installed along the entire length of the road, and there are hookups available to serve the Libucha property. [Note 10] There is a town-owned odor-control/pump station at the mid-point of the road and, because of this, the town currently plows the road in the winter and performs occasional maintenance when its budget permits—grading the most egregious potholes and putting in new gravel at the worst places. Some of the homeowners along the road have occasionally done likewise in scattered spots, but not consistently or reliably. [Note 11] There is no homeowner’s association, and doubtful there ever will be. The homeowners have not entered into any agreement to maintain the road.

Despite its issues, the road is both usable and regularly used. The residents certainly use it to come and go to their homes, in all seasons. Trucks as large as 18-wheelers can drive the length of the road, so long as on-coming vehicles pull over and following vehicles have patience. [Note 12] Because there are no businesses and the road leads nowhere other than the homes it serves, such large trucks are few and far between. Most of the traffic along the road consists of two-wheel drive passenger cars and small SUV’s. Oil delivery, UPS, postal delivery and garbage trucks regularly use the road to service the residences. Fire trucks, police cars and ambulances have thus far managed to get to the homes when needed, which happily has been rare, and there have been few accidents even in the snow. The potholes and narrowness of the road act as natural traffic-calming devices, so there are no real safety issues. [Note 13] But none of these situations has yet involved a major conflagration or heart attack-level medical emergency, or a volume or type of vehicles beyond those presently owned by or visiting the existing homes.

The town has been requested to adopt the road as a public way, and has declined. It would not be approved as a subdivision road, which currently must have a 50’-wide right of way, a 24’-wide paved roadway width, and cannot have grades over 8%. Subdivision Regulations, §270-36.B & C. It would not even be approved for use as a common driveway (which may serve up to six lots), which must have a minimum right of way of 40’, a minimum gravel base at least 18’ wide, a minimum finished surface at least 18’ wide, and a maximum grade of 10%. Zoning Bylaw, §§145-45(C)(1) & (2) and 145-44(A)(3). It does not meet the state standard for the minimum width of a fire lane (18’). 527 CMR 10.03(10). And it would not meet applicable American Association of State Highway and Transportation Officials (“AASHTO”) standards (Guidelines for Geometric Design of Very Low-Volume Local Roads: Rural Minor Access Roads) [Note 14] in many critical respects, including width, grade, stopping-sight distance, curvature and design speed. [Note 15]

Plaintiffs Stanley and Patricia Libucha own a three-acre parcel mid-way on the back stretch of the road and propose to divide it into three new building lots. See Ex. 1. They created a plan of that division and submitted it to the Belchertown Planning Board for ANR endorsement pursuant to G.L. c. 41, §81P. The board denied such endorsement, ruling that the road was inadequate to provide the required frontage. Neither this board, nor any previous board, has ever endorsed an ANR plan for the creation of building lots on land located anywhere on the Grela Terrace/Channel Drive loop, nor ever found that the road was adequate to provide frontage to do so.

Further facts are set forth in the analysis section below.

Analysis

The Libuchas’ case turns on their argument that, for purposes of ANR analysis under c. 41, §81L’s definition of “subdivision”, section (c), there are only two types of roads: “illusory” and “passable” and, because Grela Terrace/Channel Drive is passable in a sense (it can be used, and is used, for vehicle access to the properties along it, albeit with difficulty), it qualifies as frontage. I disagree. The case law does not so hold, and the statute allows local planning boards a measure of discretion in making judgments regarding the adequacy of private roads which this board’s judgment fits within.

I begin with the Libuchas’ contention that there are public roads in Belchertown worse than this road, that ANR endorsement has been granted for lots on those roads and, therefore, the board was arbitrary and capricious in denying ANR endorsement in this case. First, no evidence was admitted that these public roads are truly comparable to Grela Terrace/Channel Drive. They may be gravel and dirt. They may be narrow. But none have the combination of deficiencies this road presents. Second, those ANR endorsements are from decades ago, on other roads, and in unknown circumstances. No definitive conclusions may thus be drawn. Third and most importantly, they involved public roads and the statute thus required them to be considered as “frontage” so long as the access they provided was not “illusory.” See Sturdy v. Planning Bd. of Hingham, 32 Mass. App. 72 (1992); Ball v. Planning Bd. of Leverett, 58 Mass. App. Ct. 513 (2003). Private roads are in a different category. The reason for this — the reason why planning boards have greater discretion to evaluate private roads than they do in reviewing public ones — is set forth in Sturdy v. Planning Bd. of Hingham, 32 Mass. App. 72 (1992). Deficiencies in a public way are insufficient ground for denying the endorsement. The ANR endorsement for lots fronting on a public way, provided for in G.L. c. 41, §81L, is a legislative recognition that ordinarily lots having such a frontage are fully accessible, and as the developer does not contemplate the construction of additional access routes, there is no need for supervision by the planning board on that score. Moreover, since such municipal authorities have the obligation to maintain such ways, there is already public control as to how perceived deficiencies, if any, in such public ways are to be corrected. As indicated [earlier in] this opinion, public officials can bring a municipality to task if it fails to perform its road maintenance duties.

32 Mass. App. Ct. at 76 (internal citations and quotations omitted). Here, the town has no obligation to maintain Grela Terrace/Channel Drive, and certainly none to maintain it to any particular standard. [Note 16] The maintenance it currently performs is for itself (for convenience of access to the odor control/pump station), and performed only when there is money in the budget to do so.

The question thus turns to whether the Libuchas are correct on whether the “illusory”/ “could be better but manageable” analysis of Ball is applicable to private roads; if so, then how; and then how this road fits into the analysis. The inquiry begins with the language of Ball, which, in relevant part, is as follows:

We have consistently construed the exemptions from subdivision control that are set forth in clauses (a), (b) and (c) of §81L, twelfth par., in light of the purposes of the subdivision control law generally as those are set forth in G.L. c. 41, §81M. Where there is the access that a public way normally provides, that is, where the “street [is] of sufficient width and suitable to accommodate motor vehicle traffic and to provide access for fire-fighting equipment and other emergency vehicles” the goal of access under 81M is satisfied, and an 81P endorsement is required.

The landowners rely on Sturdy to support their argument that as long as access is not “illusory” the board may not consider the physical condition of the public way. In Sturdy, we construed Perry [v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144 (1983)] and related cases narrowly, stating that a planning board may withhold the ANR endorsement (where the tract has the required frontage on a public way) only where the access is “illusory in fact.” We observed that deficiencies in a public way are an insufficient ground for denying the endorsement.

Most recently, in Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394 , 399 (2000), we stated that perceived tension between the cases concerning ANR endorsements and questions of physical access, including Perry and Sturdy, as creating two categories of access on public ways. There is the “could be better but manageable” category and the “illusory” category. The first category warrants a §81P endorsement; the second does not.

We must determine then whether the portion of January Road [a public road] that fronts upon Lot 1 is merely “deficient” (i.e. “could be better but manageable”) or whether it fails to provide acceptable physical access according to the goals of §81M (i.e., access is “illusory.”).

58 Mass. App. Ct. at 517-518 (some internal citations and quotations omitted). The lessons I draw are these. The precise holdings of Ball and Sturdy are limited to public roads. In other words, to the extent there is a strict “either/or” dichotomy (if physical access is “illusory” — in Ball, it was impossible, 58 Mass. App. Ct. at 518 — endorsement may be withheld; if it is not “illusory” — “could be better but manageable” — endorsement must be granted), that “either/or” dichotomy applies only to public ways. When G.L. c. 41, §81L uses the words, “in the opinion of the planning board” in section (c) — words not used in section (a) (public ways) — it explicitly recognizes a greater degree of discretion in the planning board. See Murphy v. Dept of Correction, 429 Mass. 736 , 744 (1999) (“where the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present”). Thus, to the extent “manageability” is the criteria to be used, the board is not limited to the test, “can the road be managed at all?” It is allowed to make the judgment, “can the road be managed consistent with our reasonable expectations, as evidenced by their application elsewhere?” The board made such a judgment here, and that judgment must therefore be upheld. Yes, fire trucks, police cars and ambulances can make it around the road. But where, as here, they must do so at 5 mph on a potholed, narrow, winding, and steeply inclined surface with blind curves, the board made the reasonable, allowable judgment that that was not sufficient. Yes, large trucks and other vehicles can access the properties. But where, as here, they can only do so if they drive slowly and are prepared to pull over onto someone’s lawn, the board again made the reasonable, allowable judgment that that was not adequate. Yes, there have been no major accidents thus far. But where, as here, the new lots will add more vehicles, and there is no guarantee that the town will continue to repair and plow the road with any consistency in the future, the board made the reasonable, allowable judgment that such an absence of major accidents might not continue to be the case. These judgments were consistent with the town’s subdivision regulations on roads, its “common driveway” requirements, the state’s fire lane regulations, and the AASHTO guidelines, all of which call for a far better roadway than this one, and were not shown at trial to be inconsistent with any other comparable ANR decisions by the board.

Conclusion

For the foregoing reasons, the board’s decision denying ANR endorsement to the Libuchas’ plan is AFFIRMED, the Libuchas’ appeal from that decision is DISMISSED, WITH PREJUDICE, and it is ORDERED, ADJUDGED and DECLARED that Grela Terrace/Channel Drive does not provide frontage for the Libuchas’ proposed lots under the Belchertown zoning bylaw.

Judgment shall enter accordingly.

SO ORDERED.

exhibit 1