The plaintiff, One Brocks Court, LLC (plaintiff) initiated the instant action on May 10, 2013 by means of a single count complaint as an action in the nature of certiorari, pursuant to G.L. c. 249, § 4. The plaintiff seeks judicial review of the Nantucket Planning Boards (Board) approval and endorsement of Edward S. Tooles (defendant/ Toole) [Note 1] plan under G.L. c. 41, § 81P as one for which subdivision control approval was not required (the ANR Plan). As depicted on the ANR Plan, Mr. Toole sought to divide the property known and numbered as 44 Liberty Street, Nantucket, Massachusetts, into two lots. [Note 2] On November 27, 2013, the plaintiff filed a Motion for Judgment on the Pleadings pursuant to Mass. R. Civ. P. 12(c). In so doing, he alleged that the Planning Board committed an error of law in endorsing the [ANR] plan because the access to the proposed lots is inadequate within the meaning of the Subdivision Control Law and Nantuckets Subdivision Rules and Regulations. [Note 3] The defendant, however, maintains that the Board was legally required to endorse the ANR Plan. [Note 4] For the reasons that follow, this court determines that the Planning Boards endorsement of the ANR Plan was proper. Consequently, the plaintiffs Motion for Judgment on the Pleadings will be Denied. The decision of the Board will be Affirmed.
The following material facts are not in dispute. One Brocks Court, LLC (plaintiff) is a Massachusetts limited liability company that owns the property known and numbered as 1 Brocks Court, Nantucket, Massachusetts. That Brocks Court property is improved by a residential dwelling wherein the plaintiffs members reside. [Note 5] On March 4, 2013, the defendant filed an Application for Endorsement of a Plan Believed Not to Require Approval (ANR Plan) with the Board concerning the property known and numbered as 44 Liberty Street, Nantucket (Liberty Street Property), seeking to divide it into two lots. [Note 6] Both lots are located off Brocks Court, a public way. [Note 7] As shown on the plan, Brocks Court provides access to the plaintiffs property, which abuts Lot 2. [Note 8] Lot 1 contains an existing house and driveway. The defendant intends to abandon and relocate the driveway for Lot 1 onto Brocks Court. [Note 9] In his Application for Endorsement of the ANR Plan, the defendant represented that each lot possessed at least the minimum fifty (50) foot frontage as is required under the Nantucket Zoning Bylaw. [Note 10] Lot 1 has frontage on Brocks Court for a distance of 57.09 feet [Note 11] while Lot 2 possesses 50.00 feet of frontage on Brocks Court. [Note 12] Brocks Court is a dead-end street, consisting of a 15-foot wide right-of- way. [Note 13] It is paved to a width of approximately (10) feet. [Note 14] On March 11, 2013, the Board endorsed the Plan without a public hearing by a vote of 5-0. [Note 15]
The Administrative Record certified to this court consists of the following: (1) Staff Report dated March 6, 2013 outlining the agenda for the March 11, 2013 meeting; (2) the Approved Minutes of the Boards March 11, 2013 meeting, including a list of documents submitted to the Board; (3) the defendants Form A Application for ANR endorsement, including the ANR plan at issue; and (4) an endorsed copy of the plan. The plaintiff made a subsequent motion to include the Nantucket Subdivision Rules and Regulations as part of the Administrative Record, which this court herein allows pursuant to Land Court Rule 6. [Note 16]
The Boards Approved minutes for its March 11, 2013 meeting indicates that the Board held a hearing on a definitive subdivision plan involving Brocks Court Subdivision while at the same meeting [t]here was a brief discussion regarding the ANR application concerning the same property, public way, and parties. [Note 17] The meeting minutes disclose that at the March 11th hearing the Board members requested that the defendant provide them with a letter from the Fire Chief regarding access on the proposed driveway on Brocks Court [Note 18] presumably within the context of the definitive subdivision proposal. The record discloses that Mrs. Howard, a member of the Planning Board, questioned the abandonment access from Liberty Street and getting access from Brocks Court. [Note 19] The plaintiffs counsel expressed her clients access and safety concerns, while the defendants counsel represented that the Fire Chiefs email indicated that he was satisfied with access. [Note 20] The Board had a copy of the Fire Chiefs email although it was not certified as part of the record herein. [Note 21]
I. Action in the Nature of Certiorari
Typically, when a plaintiff seeks review of a planning board decision made pursuant to G.L. c. 41, §§ 81K-81GG, the so-called Subdivision Control Law, that plaintiff invokes jurisdiction under G.L. c. 41, § 81BB. The Subdivision Control Law, however, is devoid of a statutory mechanism for judicial review of an endorsed ANR plan, Murphy v. Planning Bd. of Hopkinton, 70 Mass. App. Ct. 385 , 389 (2007), under G.L. c. 41, § 81P. Consequently, whenas herean abutter seeks to challenge the endorsement of an ANR plan, the proper procedure is by means of an action in the nature of certiorari under G.L. c. 249, § 4. See Stefanick v. Planning Bd. of Uxbridge, 39 Mass. App. Ct. 418 , 424 (1995) (In the absence of a statutorily prescribed right of judicial review of a § 81P endorsement on a plan, the review . . . is in the nature of certiorari.).
In pertinent part, G.L. c. 249, § 4 provides as follows:
A civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought . . . if the matter involves any right, title, or interest in land, or arises under the subdivision control law, the zoning act, or municipal zoning, or subdivision ordinances, by-laws or regulations, in the land court. . . .
The purpose of certiorari procedure is to provide a remedy where none would otherwise exist . . . . Drayton v. Commr of Corr. , 52 Mass. App. Ct. 135 , 140 (2001), quoting Ford v. Commr of Corrections, 27 Mass. App. Ct. 1127 , 1129 (1989). Notably, however, certiorari does not provide an additional or alternative avenue of appellate review. Cumberland Farms, Inc. v. Planning Bd. of Bourne, 56 Mass. App. Ct. 605 , 607 (2002). In certiorari review, the court is limited to correcting substantial errors of law apparent on the record adversely affecting material rights. FIC Homes of Blackstone, Inc. v. Conservation Commn of Blackstone, 41 Mass. App. Ct. 681 , 684 (1996).
In this regard, review is limited to what is contained in the record of the proceedings below, Police Commr of Boston v. Robinson, 47 Mass. App. Ct. 767 , and is not conducted de novo. See Durbin v. Bd. of Selectman of Kingston, 62 Mass. App. Ct. 1 , 6 (2004). Thus, the proper procedure in a case arising under G.L. c. 249, § 4 is a motion for judgment on the pleadings. See Northboro Inn, LLC v. Treatment Plant Bd. of Westborough, 58 Mass. App. Ct. 670 , 673 n.5 (2003); see also Land Court Standing Order 2-06(4) (A claim for judicial review on the administrative record shall be resolved through a motion for judgment on the pleadings, Mass. R. Civ. P. 12(c) . . . .). Under Mass. R. Civ. P. 12(c), [a]fter the pleadings are closed but within such time as to not delay the trial, any party may move for judgment on the pleadings. Judgment on the pleadings is proper when there are no issues of material fact and only errors of law remain to be determined. See Wing Meml Hosp. v. Dept. of Pub. Health, 10 Mass. App. Ct. 593 , 596 (1980).
When examining the administrative record, the standard of review varies with the nature of the action for which review is sought. T.D.J. Dev. Co. v. Conservation Commn of No. Andover, 36 Mass. App. Ct. 124 , 128 (1994). Essentially, the decision must be legally tenable and supported by substantial evidence on the record. Pollard v. Conservation Commn. of Norfolk, 73 Mass. App. Ct. 340 , 348 (2008). To overturn an [agencys decision], the applicant must establish that it was arbitrary or capricious or unsupported by substantial evidence. Rodgers v. Conservation Commn of Barnstable, 67 Mass. App. Ct. 200 , 204 (2006). The arbitrary and capricious test, typically employed where an agency has a broad grant of discretion, simply asks whether the agency action was authorized by the governing statute . . . in light of the facts . . . [I]f the agency has acted for reasons that are extraneous to the prescriptions of the regulatory scheme . . . that agency has acted arbitrarily. Fafard v. Conservation Commn of Reading, 41 Mass. App. Ct. 565 , 568 (1996).
The substantial evidence test applies where the question [is] not the criteria to be applied but whether, within announced criteria, the determination [of the Board] is supported by substantial evidence. Id. at 568. Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Durbin v. Bd. of Selectman of Kingston, 62 Mass. App. Ct. 1 , 6 (2004). For a conclusion to be supported by substantial evidence, it need not be based upon the clear weight of the evidence . . . or even on a preponderance of the evidence, but rather only on reasonable evidence. Id. at 5-6 & n.7. (emphasis added) In its Motion for Judgment on the Pleadings, the plaintiff does not specify which standard of review it is invoking, only that the Board committed an error of law in endorsing the plan due to inadequate access under the Subdivision Control Law and Nantucket Subdivision Rules and Regulations.
II. The Boards ANR Endorsement
Pursuant to G.L. c. 41, § 81P, any person wishing to record a plan of land and who believes that approval is not required under the Subdivision Control Law, may apply to the local planning board in the town in which the land is situated for ANR endorsement. A planning boards endorsement shall not be withheld unless such plan shows a subdivision. G.L. c. 41, § 81P (emphasis added). A subdivision is defined in G.L. c. 41, § 81L, which in pertinent part, provides the following:
[T]he division of a tract of land into two or more lots shall not be deemed to constitute a subdivision . . . if . . . every lot within the tract so divided 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 in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the building erected or to be erected thereon. Such frontage shall be of at least such distance as is then required by zoning or other ordinance or by-law if any, of said city or town for erection of a building on such lot, and if no distance is so required, such frontage shall be of at least twenty feet.
In issuing an ANR endorsement, a boards task is two-fold. The first is ministerial . . . [and requires a determination that] a plan submitted for ANR endorsement either has the requisite frontage or it does not. Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394 , 385 (2000). The second requires a planning boards determination under § 81P that adequate access, as contemplated by § 81M, otherwise exists. Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144 , 152 (1983). Notably, the frontage exemption of § 81L should be interpreted in light of the over-all purpose of the subdivision control law . . . . Corcoran v. Planning Bd. of Sudbury, 406 Mass. 248 , 250 (1989), citing Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 , 807 (1978); Perry, 15 Mass. App. Ct. at 150.
The purposes set forth in section 81M of the Subdivision Control Law relate to safe and efficient vehicular access for residents and emergency vehicles. [Note 22] See G.L. c. 41, § 81M; e.g., Ball v. Planning Bd. of Leverett, 58 Mass. App. Ct. 513 , 517 (2003). The Supreme Judicial Court summarized it as follows: [w]hatever the meaning of frontage in a particular town bylaw, we have read the definition of subdivision to refer to frontage in terms of the statutory purpose, expressed in § 81M, to provide adequate access to all of the lots in a subdivision by way that will be safe and convenient for travel. McCarthy v. Planning Bd. of Edgartown, 381 Mass. 86 , 87-88 (1980). Where the Subdivision Control Law exempts certain divisions of land of regulation and approval by a planning board (approval not required), it is because vital access is reasonably guaranteed in another manner. . . .[t]he guaranty is expressed in §§ 81L and 81P of the [Subdivision Control Law] in terms of a requirement of sufficient frontage for each lot on a public way. Gifford, 376 Mass. 801 , 807 (1978); Ball v. Planning Bd. of Leverett, 58 Mass. App. Ct. 513 , 517 (2003).
Essentially, access falls into two categories could be better but manageable (i.e. deficiencies in a public way) and illusory (i.e. the public way fails to provide acceptable physical access according to the goals of § 81M). See Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394 , 399 (2000); Ball v. Planning Bd. of Leverett, 58 Mass. App. Ct. 513 , 517-18 (2003). The first warrants ANR endorsement; the second does not. Gates, 48 Mass. App. Ct. at 399; see also Sturdy v. Planning Bd. of Hingham, 32 Mass. App. Ct. 72 , 76 (1992) (holding that mere [d]eficiencies in a public way are insufficient ground for denying the endorsement.); Ball v. Planning Bd. of Leverett, 58 Mass. App. 513, 517-18 (2003) (concluding that state of public way was beyond deficient, such that it provided no practical access for emergency vehicles and fell into illusory category and ANR endorsement properly denied).
A Planning Board does not have a roving commission to assess the quality of access, so long as the access was not an illusion. Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394 , 397 (2000); Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 (1980) ([Section] 81P was not intended to enlarge the substantive powers of the [planning] board . . . .); Sturdy, 32 Mass. App. Ct. at 76 (Gifford . . . is the exceptional case and was not intended to broaden significantly the powers of planning boards under G.L. c. 41, § 81L); Gallitano v. Bd. of Survey & Planning of Waltham, 10 Mass. App. Ct. 269 , 273 (1980). Only in the extraordinary case may a planning board deny endorsement based on illusory or nonexistent access, notwithstanding literal compliance with the frontage requirements of G.L. c. 41, § 81 L. See, e.g., Gifford, 376 Mass. at 808 (upholding denial of ANR endorsement where, despite literal compliance with § 81L, rat- tail and pork-chop shaped lots were so narrow and convoluted so as to render the main portions of some of the lots . . . practically inaccessible from their . . . borders on public ways.); Poulos v. Planning Bd. of Braintree, 413 Mass. 359 , 362 (1992) (holding ANR endorsement properly denied where, although plan literally complied with frontage requirements of § 81L, a guardrail and steep slope prevented present, adequate access from the public way to the plaintiffs lots); Hrenchuk v. Planning Bd. of Walpole, 8 Mass. App. Ct. 949 , 949 (1979) (holding ANR endorsement properly denied where frontage along interstate highway did not provide actual access to lots).
With the foregoing principles in mind, this court turns to the ANR plan that is the subject of the instant action. It is undisputed that Brocks Court is a public way and each lot depicted on the ANR plan has the minimum frontage required under the Nantucket Bylaw (50 feet); each therefore satisfies the technical requirements of G.L c. 41, § 81L. The remaining inquiry concerns access and whether it is adequate for purposes of G.L. c. 41 § 81M. The plaintiff argues that the Board committed an error of law in endorsing the defendants ANR plan because the access to the proposed lots is inadequate within the meaning of the Subdivision Control Law and Nantuckets Subdivision Rules and Regulations. [Note 23]
Section 2.03 of the Rules and Regulations Governing the Subdivision of Land, Nantucket, Massachusetts (hereinafter, the Rules and Regulations), sets forth the requirements for Plans Believed Not to Require Approval. Section 2.03a(3) thereof states that an applicant seeking endorsement of a plan as approval not required, must provide the following:
Necessary evidence to show that the plan does not require approval, which shall include the precise legal ownership of the way(s) and proper positive documentation that every lot within the divided tract has frontage either on a public way or a way which the Town Clerk certifies is maintained and used as a public way or a way shown on a plan theretofore approved and endorsed in accordance with the Subdivision Control Law; or a way in existence on February 16, 1955, 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 land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon. All plans seeking Approval Not Required endorsement shall be accompanied by adequate evidence that there is practical interior access to the proposed house sites. [Note 24]
The reference to February 16, 1955 regarding ways in existence is the date on which the Subdivision Control Law went into effect in Nantucket. [Note 25] Section 2.03d, captioned Ways in Existence, provides in relevant part, as follows:
Existing ways will normally be determined by the Board to provide adequate access to qualify a plan as not constituting a subdivision plan only when the layout, design, and construction meet the standards of these Rules and Regulations. [Note 26]
In challenging the Boards ANR endorsement, the plaintiff does not allege the existence of any physical barrier impeding access from the public way to the lots. See, e.g., Poulos v. Planning Bd. of Braintree, 413 Mass. 359 , 362 (1992) (holding ANR endorsement properly denied where guardrail prevented adequate access to lots despite having requisite frontage on public way). Rather, the plaintiff maintains that Brocks Court itself provides illusory access to the lots due to a legal impedimenti.e., the failure of Brocks Court to satisfy certain subdivision Rules and Regulations, thereby allegedly rendering access inadequate for purposes of G.L. c. 41, § 81M. [Note 27]
In doing so, the plaintiff relies primarily on Section 2.03d. The plaintiff reads Section 2.03d as applying the standards specified in the Rules and Regulations for subdivision roads, to all existing ways in Nantucket. It appears not to matter to the plaintiff which type of way in Section 2.03a the land at issue fronts on. Consequently, despite its denomination as a public way, the plaintiff alleges the access provided by Brocks Court is inadequate because it does not meet multiple layout, design, and construction standards of the Rules and Regulations for new subdivision roads. [Note 28] By way of example, the plaintiff argues, inter alia, the Rules and Regulations require a minor subdivision street [Note 29] to be paved to a width of at least twenty (20) feet and be laid out to a width of forty (40) feet. Brocks Court does not meet these criteria, as it is laid out to a width of fifteen (15) feet and paved for a width of ten (10) feet. [Note 30]
In support of its position, the plaintiff relies heavily on McCarthy v. Planning Board of Edgartown, 381 Mass. 86 , 87-88 (1980) In McCarthy, although the plan at issue depicted every lot with frontage on a public way as required under the relevant bylaw, the planning board nonetheless denied endorsement. In so doing, the Planning Board relied on a regulation of the Marthas Vineyard Commission (MVC) which required 1,000 feet between vehicular access points along the public way therein. See id. at 87. The McCarthy Court concluded that, due to the superseding MVC regulation limiting vehicular access onto the public way, the lots at issue did not have the type of frontage called for by G.L. c. 41, § 81 L and the planning board had properly denied endorsement. Id. The plaintiff analogizes the situation herein to McCarthy due to Brocks Courts failure to comply with other, allegedly applicable, Subdivision Regulations.
The defendant takes issue with this interpretation, construing the requirements of the Nantucket Bylaw differently. Section 2.03a(3), mirroring the language of G.L. c. 41, § 81L, describes the types of ways on which a divided tract shown on a plan must front to be considered for ANR endorsement. Section 2.03a(3) lists, inter alia, a public way or way in existence on February 16, 1955, having, in the opinion of the Planning Board, sufficient width, suitable grades and adequate construction . . . . [Note 31] The defendant maintains that Section 2.03d, Ways in Existence, refers only to this last type of way denoted in Section 2.03a, a way in existence. Thus, he argues it is only when the Board is faced with a way in existence within the meaning of the above-quoted language that Section 2.03d is implicated and the layout, design, and construction standards must be satisfied for adequate access to exist. [Note 32] Because, in the defendants view, 2.03d does not apply to the case at hand and he has otherwise satisfied the requirements of G.L. c. 41, s.81L, the Board was legally obliged to endorse the ANR plan, save for the narrow instance where access is illusory.
Whether the layout, design, and construction standards are applicable to Brocks Court turns on the meaning of existing ways in Section 2.03d. The plaintiff reads existing ways as encompassing all public and private ways in existence when the ANR endorsement was sought.
However, the defendant, in light of the preceding ways in existence reference in 2.03a(3) and the fact that Section 2.03a(3) categorizes public ways and ways in existence separately, reads it to apply only to non-public ways in existence when the Subdivision Control Law took effect in Nantucket.
The Planning Boards Subdivision Rules and Regulations are subject to the ordinary principles of statutory construction. See Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981). Where the language at issue is clear and unambiguous, it is conclusive as to legislative intent. See Marthas Vineyard Land Bank Commission v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004) (internal quotations omitted). However, where ambiguities exist, the must interpret the provisions at issue according to the intent of the [municipal legislative body] ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated. Moloney v. Boston Five Cents Savings Bank FSB., 422 Mass. 431 , 433 (1996). The Rules and Regulations should be interpreted so as to effect a consistent and harmonious whole, see Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 922 (1997), and no word should be deemed superfluous. See Hutchinson v. Planning Bd. of Hingham, 23 Mass. App. Ct. 416 , 421 n.5 (1987).
The defendant advances the more persuasive argument with regard to Section 2.03d. Although existing ways is not defined in the Rules and Regulations, this court is of the opinion that Section 2.03d applies only to a way in existence as described in Section 2.03a(3)that is, to a non-public way in existence as of February 16, 1955 rather than to a public way like Brocks Court.
In this regard, the language of Section 2.03a(3) requires that the divided tract have frontage either on a public way . . . or a way in existence on February 16, 1955. The either/or language is disjunctive, indicating that a way in existence is something other than a public way. See Lobisser Bldg. Corp. v. Planning Bd. of Bellingham, 454 Mass. 123 , 129 (2009), citing Eastern Mass. St. Ry. v. Mass. Bay Transp. Auth., 350 Mass. 340 , 343 (1966) (noting that word or is given a disjunctive meaning unless the context and the main purpose of all the words demand otherwise.). Nothing in the present context suggests otherwise. To include a public way within the phrase, way in existence, would render superfluous the language, frontage on a public way.
Reading Section 2.03d in conjunction with other relevant provisions lends further support to this courts conclusion. Section 2.03d, in substance, obliges the Board to examine the access of an existing way in the context of the layout, design, and construction standards of the Rules and Regulations. In conjunction with a way in existence, Section 2.03a(3), requires the Board to consider, inter alia, sufficient width, suitable grades and adequate construction to support vehicular traffic. These same elements are specified in the design standards for purposes of determining adequate access. See Rules and Regulations § 4.08(a). However, Section 2.03a(3) omits such language in its exemption for frontage on a public way. Such omission suggests contrary to the plaintiffs positionthat the Board need not consider such elements when evaluating a plan showing lots fronting on a public way.
Additionally, Section 2.03d, captioned Ways in Existence, uses the phrase adequate access. Section 4.08(a), captioned, Adequate Access To The Site, applies in the case of a definitive subdivision plan. It speaks of adequate vehicular access in terms of a way having sufficient width, suitable grades and adequate construction . . . . This too, suggests that Section 2.03d is meant to apply to ways in existence as described in Section 2.03a(3), as that exemption also specifically enumerates its requirements in terms of sufficient width, suitable grades and adequate construction. [Note 33]
A review of the relevant case law lends further support to the conclusion that a public way and a way in existence are wholly distinct entities for purposes of identifying exemption under the Subdivision Control Law. For example, in Gates v. Planning Board of Dighton, the Appeals Court noted as follows: The statute [G.L. c. 41, § 81L] also describes ways other than public ways which provide a path to exemption from subdivision control. Gates, 48 Mass. App. Ct. 394 , 395 n.3 (2000) (emphasis added). See also Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144 , 150 n.4 (1983) (noting that in addition to frontage along a public way, an 81P endorsement can be obtained by showing that every lot within the division has the required frontage along . . . (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies . . . .) (emphasis added). Likewise, in Gifford v. Planning Bd. of Nantucket, the Supreme Judicial Court observed as follows: Section 81L recites as an alternative to (a) [a public way], (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies . . . . 376 Mass. 801 , 803 n.4(1978) (emphasis added).
Importantly, the Appeals Court summarized a Planning Boards power with respect to each in Hutchinson v. Planning Board of Hingham. In that case, which dealt with a plan showing frontage on a public way, the court observed as follows, in a footnote:
The board in refusing endorsement used the language of subsection (c) [of G.L. c. 41, § 81L], that is, a way in existence when the subdivision control law became effective, to describe the inadequacies of the public way . . . [I]f the board could apply to subsections (a) [frontage on a public way] and (b) [frontage on a way previously endorsed under the subdivision control law] of 81L the broader powers given to it to determine the adequacy of the ways described in subsection (c), the first two exemptions would be rendered superfluous. 23 Mass. App. Ct. 416 , 421 n.5 (1987).
Although the foregoing quotation pertains to G.L. c. 41, § 81L, it should be noted that Section 2.03a(3) in essential form mirrors that very same language when describing the ways on which frontage is required for an ANR endorsement. Were this court to adopt the interpretation urged upon it by the plaintiff, the Nantucket Planning Broad would be afforded broad power under Section 2.03d to deny an ANR endorsement where a public way fails to meet the detailed standards for laying out and constructing new subdivision roads. The language concerning frontage on a public way would thereby be rendered superfluous.
Further, given the circumstances pertaining herein, an interpretation of Section 2.03a(3) that allows the Planning Board to deny an ANR endorsement where a public way fails to meet the local standards for new subdivision roads would be at odds with the legislative recognition in G.L. c. 41, § 81L that ordinarily lots having such frontage [on a public way] 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. Sturdy v. Planning Bd. of Hingham, 32 Mass. App. Ct. 72 , 76 (1992) (emphasis added), citing Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 , 807 (1978).
Having determined that Section 2.03d does not apply where there is requisite frontage on a public way, the plaintiffs argument that, like McCarthy, access on Brocks Court falls into the illusory category because the plan failed to meet the other regulations required for access [Note 34] is unavailing. Moreover, as the defendant points out in his memorandum, the McCarthy Court upheld the denial of an ANR endorsement not because the public way failed to satisfy the requirements of the Edgartown Rules and Regulations relating to subdivision roads, but because the superseding MVC regulation prevented access onto the public way in a form that was sufficient for purposes of G.L. c. 41, § 81M.
As noted supra, where a plan submitted for ANR endorsement depicts the requisite frontage along a public way, the access goals of G.L. c. 41, § 81M are ordinarily satisfied and the Board must endorse the plan. See G.L. c. 41, § 81P ([I]f Planning Board finds that the plan does not require approval, it shall forthwith endorse the plan. . . .) (emphasis added); see also Hutchinson v. Planning Bd. of Hingham, 23 Mass. App. Ct. 416 , 420-21 (In sum, where there is access that a public way normally provides . . . the goal of access under 81M is satisfied, and an 81P endorsement is required.); Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 , 604 (1980) (The generally routine nature of a § 81P endorsement is further indicated by the provision in § 81P that such an endorsement be made forthwith, without a public hearing.); Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 , 807-08 (1978) (noting that though ANR endorsement denied based on inadequate access, the court was dealing with an exceptional case).
The plaintiffs sole argument that the Board committed an error of law in endorsing the ANR plan relates to Brocks Court perceived inadequacies when measured against the layout, design, and construction standards of the Rules and Regulations. Notably, to the extent that plaintiff complains of such things as the narrowness of Brocks Court as compared to the width required under the Rules and Regulations, deficiencies in a public way are insufficient ground for denying endorsement. Sturdy v. Planning Bd. of Hingham, 32 Mass. App. Ct. 72 , 76 (1992). The plaintiff has made no other argument regarding illusory or nonexistent access.
Brocks Court is fifteen (15) feet wide and paved to a width of ten (10) feet. It is also shown as paved for the entire length of the frontage of each lot depicted on the plan. Moreover, the plaintiffs members reside at 1 Brocks Court; their home is located at the end of the public way of which they now complain. The Board reasonably could have taken note of this factor when concluding that access provided on the public way not illusory or nonexistent for purposes of G.L c. 41, § 81M. Further, as noted in the administrative record, the Board requested and received an email from the Fire Chief relating to access on Brocks Courtalbeit in the context of the definitive subdivision proposal plan. [Note 35] Nothing in the administrative record before the Board otherwise indicates that the ANR plan presented one of those extraordinary situations, such as pork- chopped shaped lots, frontage on a limited access highway, or a public way that has not in fact been laid out on the ground. Such factors could serve to render access illusory despite technical compliance with G.L. c. 41, § 81L.
Consequently, this court concludes that the Boards determination that the ANR plan at issue did not disclose a subdivision under G.L. c. 41, § 81L was legally tenable, particularly so since Section 2.03d does not apply herein. The Boards determination was supported by substantial evidence on the administrative record such that an ANR endorsement was required.
To the extent that the plaintiff alleges in its complaint that the Board acted arbitrarily in endorsing the plan because Brocks Court does not satisfy the layout, design, and construction standards, that argument must fail. The Boards action was appropriate under the Subdivision Control Law and the Boards Rules and Regulations. Their endorsement was not arbitrary or capricious. See Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565 , 568 (1996).
For the foregoing reasons, this court concludes that the Board has not committed a substantial error of law apparent on the record.
Accordingly, it is hereby
ORDERED that the plaintiffs Motion for Judgment on the Pleadings be, and hereby is, DENIED. It is further
ORDERED that the ANR Decision of the Nantucket Planning Board be, and hereby is, AFFIRMED.
Judgment to issue accordingly.
[Note 1] At the time of his application, Mr. Toole owned the property known and numbered as 44 Liberty Street, Nantucket, Massachusetts. Compl. ¶ 4; Ans. ¶ 4. Subsequent to the endorsement and approval of the ANR plan and the filing of this Motion for Judgment on the Pleadings, Mr. Toole moved to substitute as the defendant in this action Elizabeth P. Frazier (Frazier), as trustee of the Edwin Snider Realty Trust u/d/t dated January 13, 2014, recorded in the Nantucket County Registry of Deeds in Book 1420, Page 107. By deed dated January 9, 2014 and recorded on January 14, 2014, Mr. Toole conveyed to Frazier the land that is the subject of the instant action. This court allowed the Assented-to Motion to Substitute Defendant on February 26, 2014. For purposes of this order, all references to "defendant" shall be to Mr. Toole, rather than that of the substituted defendant, as the motions and arguments addressed herein are his.
[Note 2] See Administrative (Admin.) Record, at 0010-11.
[Note 3] Plaintiffs (Pl.) Memorandum in Support of Motion for Judgment on the Pleadings, at 1 [hereinafter, Pl.s Memo in Support.].
[Note 4] The defendant alleges several affirmative defenses in his answer. For purposes of this Motion, however, the court will address only those arguments raised by the defendant in his Opposition to Judgment on the Pleadings.
[Note 5] Complaint (Compl). ¶ 2; Answer (Ans.) ¶ 2; Admin. Record 0005.
[Note 6] Admin. Record, at 0008; see also Compl. ¶ 5; Ans. ¶ 5.
[Note 7] See Admin. Record, at 0010-11; see also Compl. ¶¶ 8, 11, 12; Ans. ¶¶ 8, 11, 12.
[Note 8] Admin. Record at 0010-11; Compl. ¶ 17; Ans. ¶ 17; see also Compl., Ex. B.
[Note 9] Admin. Record at 0010-11; Compl. ¶¶ 9, 10; Ans. ¶¶ 9, 10. The existing dwelling on Lot 1 is under construction. See Admin. Record, at 0010-11; Ans. ¶ 9.
[Note 10] See Admin. Record, at 0008, 0010-11.
[Note 11] See Admin. Record, at 0010-11; see also Compl. ¶ 11; Ans. ¶ 11.
[Note 12] See Admin. Record, at 0010-11; see also Compl. ¶ 8; Ans. ¶ 8.
[Note 13] Admin. Record, at 0010-11; Compl. ¶ 13; Ans. ¶ 13; Admin. Record, at 0010-11.
[Note 14] Admin. Record, at 0010-11; see also Compl. ¶ 14, Ex. B; Ans. ¶ 14.
[Note 15] Admin. Record, at 0006-07, 0011.
[Note 16] The Rules and Regulations were originally omitted from the Administrative Record in the instant action. However, the plaintiff submitted a Partially Assented to Motion to Include the Rules and Regulations as part of the Administrative Record, to which the Nantucket Planning Board also assented. This court has allowed that Motion pursuant to Land Court Rule 6.
[Note 17] See Admin. Record, at 0004-05.
[Note 18] Id. at 0001.
[Note 19] Id. at 0005.
[Note 20] Id. at 0004-05.
[Note 21] Id. at 0001.
[Note 22] The Supreme Judicial Court described these goals at length in Gifford v. Planning Bd. of Nantucket in the following language:
Section 81M of the Subdivision Control Law states that it has been enacted for the purpose of protecting the safety, convenience and welfare of residents by regulating the laying out and construction of ways in subdivisions providing access to the several lots therein; and further, that the powers of a planning board . . . shall be exercised with due regard for the provision of adequate access to all of the lots in a subdivision by ways that will be safe and convenient for travel. In conformance with this text, we have emphasized repeatedly that a principal object of the law is to ensure efficient vehicular access to each lot in a subdivision, for safety, convenience, and welfare depend critically on that factor. 376 Mass. 801 , 807 (1978).
[Note 23] Pl.s Memo in Support, at 1.
[Note 24] Rules and Regulations, § 2.03a(3) (emphasis added).
[Note 25] Id. § 1.01.
[Note 26] Compl. ¶ 21; Ans. ¶ 21; Rules and Regulations, § 2.03d.
[Note 27] See Pl.s Memo in Support, at 7-8 n.2.
[Note 28] See id. at 6.
[Note 29] A minor subdivision street is one which in the opinion of the Board, provides access to abutting lots, and is not intended for use by through traffic . . . . See Rules and Regulations, § 4.03a(1).
[Note 30] See Rules and Regulations, 4.03a, e; see Pl.s Brief, at 6; Admin. Record 0010-0011 (depicting Brocks Court at a layout width of 15 feet and a paved width of 10 feet). The plaintiff also takes issue with Brocks Courts noncompliance with several other subdivision regulations. This includes, for instance, Rules and Regulations, Plate No. 5, which requires that a paved public road have four-foot grass borders and four-foot sidewalks on either side of it. See Compl. ¶ 28b. In their pleadings, the parties dispute whether Brocks Court has grass borders and sidewalks on either side of it. See Compl. ¶ 15; Ans. ¶ 15. This court deems these disputed facts immaterial because, were this court to find in favor of the plaintiff, the defendants plan would fail regardless because it does not comply with any of the Rules and Regulations cited by plaintiff.
[Note 31] Rules and Regulations, § 2.03a(3).
[Note 32] See Defendant (Def.) Edward S. Tooles Opposition to Plaintiffs Motion for Judgment on the Pleadings, at 6 [hereinafter, Def.s Opposition].
[Note 33] Moreover, although the title of Section 2.03d is not dispositive, the fact that it is specifically entitled Ways in Existence lends support to the notion that it is meant to apply to ways in existence as used in Section 2.03a(3).
[Note 34] See Pl.s Memo in Support, at 8 n.2.
[Note 35] See Admin. Record, at 0001, 0004. While the administrative record does not include the e-mail, as it was part of the Brocks Court subdivision plan proposal, the Approved Minutes reflect that Mr. Mulloy represented to the Board that the Fire Chief indicated he was satisfied with access.