JEFFREY TAYLOR, AS HE IS THE BUILDING INSPECTOR FOR THE TOWN OF LEICESTER vs. JASON GRIMSHAW, JOHN McNABOE, DAVID WRIGHT, DEBRA FRIEDMAN, SHARON NIST, as they are members of the PLANNING BOARD OF THE TOWN OF LEICESTER, and PAUL D. SCHOLD, TRUSTEE OF SS REALTY TRUST.

Plaintiff filed his unverified Complaint for Declaratory Judgment and Certiorari on April 8, 2013, pursuant to G. L. c. 231A, and c. 249, § 4, relative to the issue of the status of Parker Street in the Town of Leicester. Defendant Paul D. Schold, Trustee of SS Realty Trust, (“Schold”) filed his Answer on April 26, 2013, together with a Notice of Removal (for bankruptcy issues) to the U.S. District Court for the District of Massachusetts, Central Worcester Division. [Note 1], [Note 2] The U.S. District Court remanded the matter back to the Land Court in June 2013. A case management conference was held on August 14, 2013. Plaintiff filed the Administrative Record (the “Administrative Record”) of Defendant Town of Leicester Planning Board (the “Planning Board”) on September 5, 2013. On September 24, 2013, Schold filed a Motion to Strike Portions of the Administrative Record. By Order of the U.S. Bankruptcy Court dated October 23, 2013, relief from the automatic stay under 11 USC 362(a) was granted. On November 12, 2013, a status conference was held. The Planning Board filed its Opposition to Schold’s Motion to Strike on November 20, 2013, and Plaintiff filed his Opposition to Schold’s Motion to Strike on November 21, 2013. On December 12, 2013, a hearing was held on the Motion to Strike and on December 13, 2013, this court issued an Order allowing the Motion to Strike any documents not listed in the Document section of the Administrative Record.

Plaintiff filed his Motion for Judgment on the Pleadings on the certiorari action on January 17, 2014, together with supporting memorandum. Schold filed his Cross-Motion on February 18, 2014, together with supporting memorandum and Appendix. Plaintiff filed his Reply Brief on February 28, 2014. A hearing was held on both motions on April 10, 2014, and the matter was taken under advisement.

Under Mass. R. Civ. P. 12(c), “[a]fter the pleadings are closed but within such time as not to delay trial, any party may move for judgment on the pleadings.” Judgment on the pleadings is appropriate when the text of the pleadings contains no material factual dispute, Tanner v. Bd. of Appeals of Belmont, 27 Mass. App. Ct. 1181 (1989) (rescript opinion); Canter v. Planning Bd. of Westborough, 7 Mass. App. Ct. 805 (1975), and only issues of law are to be determined. See Wing Memorial Hospital v. Dep’t of Public Health, 10 Mass. App. Ct. 593 , 596 (1980).

Plaintiff seeks review of the Administrative Record in accordance with G. L. c. 249, § 4, which states,

A civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought in the supreme judicial or superior court or, if the matter involves any right, title or interest in land, or arises under or involves the subdivision control law, the zoning act or municipal zoning, or subdivision ordinances, by-law or regulations, in the land court...

In an action in the nature of certiorari, review is “limited to what is contained in the record of proceedings below, and it is settled that the standard of review in an action in the nature of certiorari is to correct substantial errors of law apparent on the record adversely affecting material rights.” Police Comm’r of Boston v. Robinson, 47 Mass. App. Ct. 767 , 770 (1999) (citations omitted); see also Northboro Inn, LLC v, Treatment Plant Bd. Of Westborough, 58 Mass. App. Ct. 670 (2003). As a result, “review is not de novo [and] is confined to the record before the decision making body....” Anderson v. Chamberlain, 134 F. Supp. 2d 156, 158 (2001) (citation omitted).

I find that the following material facts are not in dispute:

1. On February 25, 2013, Schold filed a “Subdivision Approval Not Required” plan (the “ANR Plan”) showing fourteen building lots (plus one 45 acre parcel) on Parker Street, Leicester (“Locus”) with the Planning Board.

2. The Administrative Record reflects that Schold believes Parker Street's status as a public way is a critical factor as to whether the ANR Plan should be endorsed and that if Parker Street were found to be a private way, it would not be entitled to ANR endorsement and would require subdivision approval.

3. The Administrative Record reflects that the current formal opinion from Town Counsel, Joseph Cove (“Town Counsel”) was that Parker Street is private; however, Town Counsel believed that the ANR Plan should be denied whether Parker Street was public or private because “it still has to exist on the ground in such a way that it allows ordinary vehicular traffic and that’s not the case here.”

4. The Administrative Record reflects that Town Counsel has visited the Locus multiple times over the last ten years and has consistently found that the Locus is not eligible for ANR approval due to lack of proper vehicular access.

5. If a Planning Board fails to rule on an ANR Plan before the expiration of the deadline for action, that application is deemed to have been approved. G. L. c. 41, § 81P. [Note 3]

6. On March 5, 2013, the date of the deadline for a decision on the ANR Plan, [Note 4] counsel for Schold presented the ANR Plan to the Planning Board. The Planning Board approved the ANR Plan by unanimous vote (the “Decision”). In making the Decision, the Planning Board had before them:

A. Schold’s ANR Plan application.

B. A memorandum from Town Planner, Michelle Buck (“Town Planner”), informing the Planning Board that in the opinion of Town Planner and Town Counsel, the ANR Plan should not be endorsed due to lack of proper vehicular access to Locus, as evidenced in the letters from Engineer, Kevin J. Quinn (“Town Engineer”) and Highway Superintendent, Thomas P. Wood (“Highway Superintendent”). Town Planner verbally informed the Planning Board at this meeting that the Town's current position was that Parker Street was not a public way.

C. Copy of a letter from Town Engineer informing the Planning Board that Parker Street was very rough, had undergone erosion, and was impassable in several areas, and only able to accommodate travel in one direction.

D. Copy of a letter from Highway Superintendent stating that he had driven through Parker Street in its entirety “but the brush was grown in pretty bad halfway.” Highway Superintendent also stated that there were signs at both ends of the road stating “No maintenance past this point.”

7. After the vote, Schold provided the Planning Board with copies of deeds, various correspondences with town officials and town records, all regarding Parker Street, that were referenced in Schold’s counsel’s presentation.

8. As reflected in the Administrative Record, Schold's counsel represented to the Planning Board that a copy of the layout of Parker Street “definitely” existed and that he had requested a copy from the Town Clerk but had not received it yet.

9. Schold never received a copy of the layout, canceling his request after receiving the ANR Plan approval from the Planning Board.

10. Town Counsel was not present at the March 5, 2013 Planning Board meeting. Town Planner informed the Planning Board that Town Counsel advised that Schold’s ANR Plan should not be endorsed, but the Planning Board was not presented with any evidence of Town Counsel's reasoning in reaching that conclusion.

11. The Administrative Record reflects that the Planning Board felt that Town Counsel “gave the Board absolutely nothing to work with.”

12. After the vote, Planning Board member Mr. McNaboe stated that he walked approximately half of Parker Street and found the road to be passable, although “it could be a lot better.” Mr. McNaboe did not drive his car in his investigation of Parker Street because he was worried his car would not make it.

13. The Planning Board was informed by the Town Planner that with Schold's consent, the Planning Board could grant an extension of the deadline to vote on the ANR Plan in order to confer with Town Counsel and receive answers to their questions before voting on the ANR Plan. The Planning Board chose not to seek an extension and go forward with the vote.

14. As reflected in the Administrative Record, before and after the vote the Planning Board expressed concern with how approval of the ANR Plan would impact the application for building permits.

15. As reflected in the Administrative Record, the Planning Board did not think that the Locus, in its current state, was eligible for building permits.

16. As reflected in the Administrative Record, Schold was not opposed to granting an extension on the deadline for the Planning Board to vote on his ANR Plan.

17. The approved ANR Plan was recorded with the Worcester County Registry of Deeds on March 6, 2013 in Plan Book 899, Plan 47.

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The parties have agreed to address the request for declaratory judgment separately from the action in the nature of certiorari. The Motion and Cross-Motion for Judgment on the Pleadings currently before this court are only in regards to the action in the nature of certiorari; the declaratory judgment will be decided at a later date.

Action in the nature of certiorari

“The standard of review [for an action in the nature of certiorari] may vary according to the nature of the action for which review is sought.” Forsyth School for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211 , 217. The two standards that may be applied in an action in the nature of certiorari are the “arbitrary and capricious” test and the “substantial evidence” test. The “arbitrary and capricious” test is appropriate when it is alleged that an agency abused its discretion by applying an “improper criteria” in reaching its decision. FIC Homes of Blackstone, Inc., v. Conservation Comm'n. of Blackstone, 41 Mass. App. Ct. 681 , 684 (1996). The “substantial evidence” test is applicable “where the question [is] not the criteria to be applied, but whether, within announced criteria, the determination ...[is] supported by substantial evidence.” Fafard, 41 Mass. App. Ct. at 568. This standard is appropriate when the action alleges that the evidence presented cannot support an agency's decision. Id.; Lovequist v. Conservation Comm’n of Dennis, 379 Mass. 7 , 17 (1979). In this case, review is sought under both standards.

The arbitrary and capricious test is appropriate to determine whether the Planning Board applied the proper criteria in deciding to approve the ANR Plan. A decision may “be disturbed only if it is based on 'a legally untenable ground'...or is 'unreasonable, whimsical, capricious, or arbitrary'....” Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 , 277 (1969). Furthermore, a court can only set aside a decision when “there is no ground which 'reasonable [persons] might deem proper' to support it.” FIC Homes, 41 Mass. App. Ct. at 684-85 (citations omitted).

The substantial evidence test is appropriate to determine whether the Planning Board properly found Parker Street to be a public roadway with adequate access to justify the endorsement of the ANR Plan. A board’s decision is deemed unsupported by substantial evidence when “the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability of the contrary.” Boston Garden Corp. v. Bd. of Assessors of Boston, 383 Mass. 456 , 466 (1981) (citing Boston Edison Co. v. Selectman of Concord, 355 Mass. 79 , 92 (1968)). Furthermore, the substantial evidence test is satisfied when the record contains “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. “A court may not displace an administrative board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Labor Relations Comm’n. v. Univ. Hosp., Inc., 359 Mass. 516 , 521 (1971); see Durbin v. Board of Selectman of Kingston, 62 Mass. App. Ct. 1 , 6 (2004).

Plaintiff argues that the ANR Plan should not have been approved by the Planning Board because Parker Street is not a public way and does not provide adequate access for the lots shown on the ANR Plan pursuant to G. L. c. 41, §§ 81L, 81M and 81P. Plaintiff further alleges that the Planning Board wrongly came to the conclusion that the ANR Plan required endorsement by relying upon Schold’s misstatements of the law and insufficient evidence. Defendants argue that Parker Street is in fact a public road that provides adequate access for the ANR Plan lots and that the Planning Board was provided with substantial evidence to reasonably reach that conclusion.

One of the express purposes of § 81M is to protect the “safety, convenience and welfare of the inhabitants of the cities and towns” through the regulation of “the laying out and construction of ways in subdivisions providing access to the several lots therein....” G. L. c. 41, § 81M. Therefore, the two key elements of an ANR approval, according to Perry v. Planning Board of Nantucket, 15 Mass. App. Ct. 144 , 152 (1983), are that the ANR lots have “‘(1) frontage on one of the three types of ways specified in [the definition of “subdivision” pursuant to] G. L. c. 41, § 81L... and (2) a planning board’s determination under § 81P that adequate access, as contemplated by § 81M, otherwise exists.’” All fourteen lots on the ANR Plan have the required linear frontage on Parker Street; however, in order for that frontage to be acceptable, Parker Street must also meet the requirements of G. L. c. 41, § 81M. [Note 5]

I. Status of Parker Street as a Public or Private Way

As set forth in G. L. c. 41, § 81L, a plan that includes a division of a tract of land is not considered to be a subdivision, and subsequently is eligible for ANR endorsement, if each lot has sufficient frontage on:

(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 of 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 abutting thereon or served thereby...

Schold’s argument that the ANR Plan was entitled to endorsement is reliant upon the fact that Parker Street is a public way. [Note 6] Plaintiff argues that Parker Street is a private way without adequate access and that Schold failed to provide the Planning Board with sufficient evidence to suggest the contrary. As this is an action in the nature of certiorari, only the Administrative Record will be examined to determine whether the Decision was supported by substantial evidence.

A way is only considered to be a public way if it achieved public status in one of the following three ways: “(1) a laying out by public authority...; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal.” Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83 (1979). While the Planning Board was informed by the Town Planner that the current formal opinion of the Town was that Parker Street was not a public way, Town Counsel failed to provide the Planning Board with any supporting documents explaining why the Town had taken this position. Schold, through his counsel, made his argument by referencing ancient deeds, town records, correspondence with various town officials that regarded Parker Street as a public way, and a layout that may or may not exist. Schold stated that he had made a request with the Town Clerk for layouts that may possibly pertain to Parker Street, but he never received those layouts and canceled his request after receiving ANR approval. Without that layout, the remaining documents, even when viewed collectively, do not provide substantial evidence that Parker Street is a public way. [Note 7] See Anderson v. LAM Builders, Inc., 2005 Mass. Super. LEXIS 60, at *25 (Feb. 14, 2005) (The evidence of a Town Meeting record proving the town named the road, a letter establishing that the town plows and maintains the road, a letter from the Town Clerk certifying that the road was a public way, letters from residents to the town requesting repairs be done to the road and records indicating that those repairs were made by the town, was not substantial enough to establish the road as a public way without evidence that the road was “laid out by a public authority.”).

Even if this evidence would be sufficient to prove that Parker Street was a public way, Schold did not actually provide this evidence to the Planning Board. The Planning Board did not receive copies of any of the documents that Schold relied upon until after they had voted on the ANR Plan. The Planning Board has yet to receive a copy of the layout of Parker Street that Schold assured the Planning Board “definitely” existed. Therefore, the Planning Board made the Decision with little to no evidence before them as to the status of Parker Street as a public or private road and subsequently, could not have possibly reviewed the evidence until after they made the Decision, if they reviewed the evidence at all. In failing to objectively review the documents, or even confirm their existence, the Planning Board acted arbitrarily and capriciously. Even though Schold stressed the importance of the status of Parker Street as a public way in determining whether or not the ANR Plan should be approved, the Planning Board never made a decision on this issue. [Note 8] As a result, it is unclear what criteria the Planning Board used in making a determination as to whether an ANR approval was justified. A reasonable mind would not have ruled on the ANR Plan without first addressing such a vital issue.

As a result, I find that the Planning Board acted arbitrarily and capriciously in failing to determine the status of Parker Street before voting on the ANR Plan.

II. Adequacy of the access provided by Parker Street

At the March 5, 2013 Planning Board Meeting, Schold announced that the classification of Parker Street as a public way was “the critical fact” as to whether the ANR Plan should be endorsed. Assuming that Parker Street were a private way, Schold appeared to concede that the ANR Plan would not be entitled to ANR endorsement and would require subdivision approval; therefore, it is not necessary to discuss the standard Parker Street would be evaluated under as a private way.

Although G. L. c. 41, § 81L does not include an adequacy standard for access on a public road, G. L. c. 41, § 81M states that “[t]he powers of a planning board and of a board of appeal under the subdivision control law shall be exercised to all of the lots in a subdivision by ways that will be safe and convenient for travel.” (emphasis added). As Schold explained to the Planning Board, the level of adequacy of access required by case law has fluctuated over the years; however, the current state of the law is not as black and white as Schold contends. Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394 , 396 (2000) (The role of the planning board is not as mechanical as early case law appeared to suggest.). Amidst all the arguments as to what is considered to be adequate access, the underlying concern for safety, as enumerated in G. L. c. 41, § 81M, has remained consistent. Ball v. Planning Bd. of Leverett, 58 Mass. App. Ct. 513 , 517 (2003) (“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 subdivision control law generally as those are set forth in G. L. c. 41, § 81M.”); Gates, 48 Mass. App. Ct. at 396 (Efficient vehicular access is the “critical factor” in determining whether to endorse an ANR plan); Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 (1978) (ANR plan denied because fire trucks could not travel on the public road, creating a significant hazard in the event of a fire.).

There are two categories of access for public ways: the “could be better but manageable” category which should be endorsed and the “illusory” category which should not be endorsed. Ball, 58 Mass. App. Ct. at 517. Access is illusory when, despite meeting the technical requirements of G. L. c. 41, § 81L, the way is only a “paper street,” or access is nonexistent. Ball, 58 Mass. App. Ct. at 518; See Gates, 48 Mass. App. Ct. at 397 (A “paper street” is a street that has been laid out but has not been built); Houle v. Planning Bd. of Plainville, 81 Mass. App. Ct. 1104 (2011) [Note 9] (A public way is illusory, even if it is “more than a paper street,” if it does not provide “a practical means of access for emergency vehicles”). Access on a road that can only accommodate four wheel drive vehicles or vehicles with oversized tires is illusory; even though a road is more than a paper street, it exceeds the “could be better but manageable” category because it does not provide access for emergency vehicles. Ball, 58 Mass. App. Ct. at 518; Houle, 81 Mass. App. Ct. at 1004.

Therefore, even if Parker Street had been proven to be a public way by substantial evidence, the question was still before the Planning Board as to whether the access provided by Parker Street was sufficient to entitle the ANR Plan to endorsement. Schold instructed the Planning Board that they must endorse the ANR Plan because access provided by Parker Street “could be better,” but was not illusory. Plaintiff argues that Parker Street, even if a public way, does not provide the safe access required by § 81M, that would entitle the ANR Plan to endorsement. As Town Counsel did not appear before the Planning Board, the Planning Board did not hear his interpretation of the law.

The only pieces of evidence before the Planning Board, other than Schold’s counsel’s speech on the state of the law, were the letters from Town Engineer and Highway Superintendent and the opinions of Town Counsel and the Town Planner. The Town Engineer stated in his professional opinion that the road was subject to erosion, impassable by passenger vehicles in several areas, and too narrow to accommodate more than one direction of traffic at a time. The Highway Superintendent stated that although he made it all the way through Parker Street, one half was “pretty bad” and the other half was “in pretty good shape.” To supplement this evidence, Planning Board member Mr. McNaboe stated, after the vote, that he had visited the site that day and would consider the road to be passable, although “it could be a lot better.” Mr. McNaboe's testimony is problematic in that his opinion of the road was not based on substantial evidence. As reflected in the Administrative Record, he walked, instead of driving on Parker Street, because he was worried his car would not make it; furthermore, he only walked for one mile, less than half the length of Parker Street. Mr. McNaboe also admits that the half of the road he did walk was the half that Highway Superintendent had classified as “pretty good.” Mr. McNaboe's investigation of Parker Street was incomplete; no reasonable mind could have judged a road in its entirety based on a partial observation.

The Administrative Record reflects that the Planning Board was very critical of Town Counsel, stating that he “gave the Board absolutely nothing to work with.” It should be noted that Schold, who had the burden of proof to show that the ANR Plan was entitled to approval, failed to provide the Planning Board with anything to work with either. Schold's evidence, or lack thereof, was insufficient to properly determine that access provided by Parker Street was not illusory, especially because the evidence that was before the Planning Board, the opinions of Town Counsel, Town Engineer, and Town Planner, suggested the contrary - that access on Parker Street was illusory. This evidence is very comparable to that in Ball, in which the testimony of the chief of the fire department and two civil engineers, that a public road did not provide adequate access for emergency vehicles, was found to be sufficient evidence to overturn the trial court's finding that access was not illusory. 58 Mass. App. Ct. 513 (“Admittedly, January Road is more than a paper street; but [the ANR was properly denied because] it provides no practical means of access for emergency vehicles to Lot 1.”). While the letter from the Highway Superintendent does not clearly support the opinion that Parker Street was not illusory, the inconclusive statements contained in that letter alone do not provide the Planning Board with sufficient evidence to find that Parker Street was not illusory either. [Note 10]

As Schold’s counsel listed to the Planning Board all of the cases that supported his argument, Town Planner interjected that she believed that Town Counsel had found recent cases that stated a different standard, and requested that an extension be granted so that Town Counsel could present his argument. Even though Schold stated that he was not opposed to this extension, the Planning Board voted anyway, despite their own apparent confusion as to the vital issues. While it is true that it is within the Planning Board’s discretion to chose between two conflicting views, in this instance the Planning Board could not have made an informed choice since they only heard part of the argument and were not presented with corroborating evidence.

The Planning Board members’ own statements in discussion after the vote reveal that even they did not feel they had been presented with substantial evidence to make the Decision. The question of how the approval of the ANR Plan will affect Schold’s ability to obtain building permits arose twice prior to the vote, but the Planning Board chose to proceed with the vote even though they were informed that the only way to obtain an answer to this question would be to grant an extension and confer with Town Counsel. Then in the post-vote discussions, concern over this issue arose yet again. [Note 11] At this time the Planning Board also made it clear that they did not believe that any building permits should be allowed unless Parker Street was repaired and maintained. [Note 12] They ultimately appear to justify the Decision, despite these lingering concerns, by concluding that it was the Town's responsibility to fix the road. The Planning Board came to this conclusion even though the Town Planner informed the Planning Board that even if Parker Street was a public way, it did not necessarily follow that the Town would have to repair the road. Ball, 58 Mass. App. Ct. 513 (Public road access deemed illusory even though town never officially discontinued or abandoned the road.); Houle, Mass. App. Ct. 1004 (ANR plan was not endorsed because of illusory access, despite the fact that it was the obligation of municipal authorities to maintain the way.). This is yet another example of the Planning Board basing the Decision on an unsubstantiated notion and incomplete criteria.

The Planning Board's confusion and uncertainty are clear signs that they were missing substantial evidence to make the Decision. Most of the Planning Board's lingering questions could have been answered if they had waited to discuss their concerns with Town Counsel so they could make a properly informed decision. Instead, the Planning Board based the Decision on Schold's attorney's presentation abilities, irrespective of the evidence that was actually presented to them, and the Planning Board's own unsupported assumptions. [Note 13]

As a result, I find that the Planning Board's conclusions as to adequate access on Parker Street were not based on substantial evidence.

Remedy

As a result of the foregoing, I ALLOW Plaintiff’s Motion for Judgment on the Pleadings and DENY Schold’s Cross-Motion for Judgment on the Pleadings. The parties shall attend a status conference on July 18, 2014 at 10 AM to determine how to proceed with this case.

Judgment shall issue after all remaining issues are resolved.