GEORGETOWN PLANNING BOARD and the GEORGETOWN BUILDING INSPECTOR v. GEORGETOWN PLANNING BOARD and JAMES TOLMAN.

Introduction

In this lawsuit, the Georgetown Planning Board sues itself, seeking to vacate its constructive endorsement of defendant James Tolman’s ANR plan. The town building inspector joins in that attempt. For the reasons that follow, their challenge to the constructive endorsement is DISMISSED and their request for its annulment DENIED.

Discussion

“ANR” is shorthand for “approval not required” and is a legislative carve-out from the need to obtain subdivision approval in certain limited situations. Put briefly, such approval is not required (the division is not considered a “subdivision”) if, “at the time when [the division] is made, every lot within the tract so divided has 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 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.” G.L. c. 41, §81L. Such frontage must be “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.” Id.

ANR endorsements are typically sought for the freezes they provide. [Note 1] Two of the freezes are statutory: G.L. c. 40A, §6, sixth paragraph, [Note 2] and G.L. c. 40A, §6, fourth paragraph. [Note 3] Others may arise under particular town bylaws. “Apart from the fact of adequate frontage of the newly created lots, an endorsement under §81P does not address the question whether each new lot within the plan complies with the other dimensional requirements of the applicable zoning bylaw. An endorsement under §81P does not mean that the lots within the endorsed plan are buildable lots.” Lee v. Bd. of Appeals of Harwich, 11 Mass. App. Ct. 148 , 152 (1981) (internal citations omitted).

The ANR process is straightforward. “Anyone who desires to record a plan of land in a city or town in which the subdivision control law (G.L. c. 41, §§ 81K-81GG) is in effect and believes that the plan qualifies for ANR treatment may it submit to the planning board of that city or town pursuant to G.L. c. 41, §81P.” Cricones v. Planning Bd. of Dracut, 39 Mass. App. Ct. 264 , 266 (1995). A public hearing is unnecessary and ANR endorsement “shall not be withheld unless such plan shows a subdivision.” G.L. c. 41, §81P.

Once a proposed ANR plan is submitted, the board must act. If it fails to act “within twenty-one days after [the plan’s] submission, it shall be deemed to have determined that approval under the subdivision control law is not required, and it shall forthwith make such endorsement on said plan, and on its failure to do so forthwith the city or town clerk shall issue a certificate to the same effect.” Id.

On October 17, 2013, defendant James Tolman applied for ANR endorsement of a plan showing four lots fronting on Pingree Road in Georgetown. The parties agree that the board failed to act on that application within the required twenty-one days and thus, by operation of §81P, the plan was constructively endorsed. [Note 4] The board is unhappy with this and, in this case, joined by the town’s building inspector, seeks to have that endorsement annulled. [Note 5] In plain words, it seeks to have the statutorily-mandated consequences of its own inaction reversed.

Judicial review of ANR endorsements is by certiorari, governed by the provisions of G.L. c. 249, § 4. [Note 6], [Note 7] Stefanick v. Planning Bd. of Uxbridge, 39 Mass. App. Ct. 418 , 424 (1995); Murphy v. Planning Bd. of Hopkinton, 70 Mass. App. Ct. 385 , 389 (2007). “The reviewing judge is limited to what is contained in the record of proceedings below,” Police Comm’r of Boston v. Robinson, 47 Mass. App. Ct. 767 , 770 (1999), and is not empowered to make a de novo determination of the facts. Durbin v. Bd. of Selectmen of Kingston, 62 Mass. App. Ct. 1 , 6 (2004). “On certiorari review, a court will correct only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff.” Conroy v. Conservation Comm’n of Lexington, 73 Mass. App. Ct. 552 , 558 (2009) (internal citations and quotations omitted).

The planning board and building inspector have moved for summary judgment under Mass. R. Civ. P. 56, contending that the Tolman lots lack appropriate frontage and, for that reason, the constructive endorsement of the ANR plan should be vacated. There are many problems with that motion. First, it is procedurally incorrect. As noted above, judicial review of ANR endorsements is by certiorari and limited to the record below. The materials submitted by the board and building inspector go beyond that record, without their having sought or obtained an order for its supplementation. See Land Court Standing Order 2-06. Second, there are genuine issues of material fact on the arguments it relies upon. See n. 5, supra. Third, and most importantly, the board and the building inspector have no standing to raise those arguments. As Mr. Tolman contends in his Mass. R. Civ. P. 12(b)(6) motion to dismiss the plaintiffs’ complaint, the board and the building inspector cannot contest the constructive endorsement. See Planning Bd. of the City of Haverhill v. Burke, 5 LCR 231 , 232 (1997) (Green, J.) (planning board’s appeal from its constructive endorsement of defendant’s ANR plan dismissed, inter alia, because “the board would not be a proper party plaintiff in a certiorari action brought against itself.”). The reason for this is clear. To allow the board and building inspector to appeal the constructive endorsement would be completely contrary to those provisions of the statute and effectively make them meaningless.

“A statute must be interpreted according to the intent of the Legislature 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. Courts must ascertain the intent of a statute from all its parts and from the subject matter to which it relates, and must interpret the statute so as to render the legislation effective, consonant with sound reason and common sense.” Retirement Bd. of Somerville v. Buonomo, 467 Mass. 662 , 668 (2014) (internal citations and quotations omitted). Here, the intent of the constructive endorsement provision in G.L. c. 41, §81P is plain from the face of its words: if the board fails to act on an ANR application in timely fashion, it “shall be deemed to have determined that approval under the subdivision control law is not required, and it shall forthwith make such endorsement on said plan, and on its failure to do so forthwith the city or town clerk shall issue a certificate to the same effect.” (emphasis added). To allow the board to appeal removes the “shall” from the statute and guts the legislative intent to require prompt, final rulings on ANR requests. See Kupperstein v. Planning Bd. of Cohasset, 66 Mass. App. Ct. 905 -906 (2006) (under §81P, in the event of a plan’s constructive approval, “the action of the board, or of the municipal clerk, is mechanical, and the landowner’s entitlement to the endorsement and certificate is mandatory”); Cassani v. Planning Bd. of Hull, 1 Mass. App. Ct. 451 , 453-458 (1973) (planning board lacks power to rescind its ANR endorsements). A constructive endorsement is appealable by a demonstrably-aggrieved third-party — a directly affected abutter, for example. See Stefanick, 39 Mass. App. Ct. at 424 (aggrieved abutting landowner may seek certiorari review of ANR endorsement). But the statute makes plain that the board itself cannot do so. Burke, 5 LCR at 232, supra.

Allowing the building inspector to appeal a constructive endorsement is likewise contrary to the overall statutory scheme for subdivision control. That scheme is “comprehensive,” with specific, interrelated components and defined roles. See Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144 , 149 (1983). Under those provisions, the planning board is tasked with reviewing ANR applications, not the building inspector. The building inspector’s role is to evaluate building permit applications for compliance with the requirements set forth in G.L. c. 41, §81Y, nothing more. [Note 8] The reasons for this are simple. First, the review of building permit applications and zoning enforcement matters, both of which focus on specific plans or specific existing structures, is his job. Nothing in the subdivision control statutes, express or implied, gives him broader powers or responsibilities. Zoning and planning boards review his decisions, not vice-versa. Second, he is not an aggrieved party at the present time, and perhaps may never be. He has not been presented with a building permit application on these lots for review pursuant to G.L. c. 41, §81Y and, if and when such an application is made, the current objections to Pingree Road as an adequate access route may have been mooted by subsequent improvements. See Mastriani v. Bldg Inspector of Monson, 19 Mass. App. Ct. 989 , 990 (1985) (no “actual controversy” prior to application for building permits or request to building inspector to take specific actions); Mass. Assoc. of Ind. Ins. Agents and Brokers v. Comm’r of Ins., 373 Mass. 290 , 292-293 (1977); District Atty for Hampden Dist. v. Grucci, 384 Mass. 525 , 527 (1981). The plaintiffs cite Perry to support a claim of aggrievement, contending that the constructive endorsement of the Tolman ANR plan may “mislead” the public. See Perry, 15 Mass. App. Ct. at 144. But there is nothing misleading about the recorded plan. It does not reflect, nor purport to reflect, an affirmative review and approval of Mr. Tolman’s plan by the board. To the contrary, the clerk’s certificate which accompanies the plan and allowed its recording specifically references §81P and plainly states that “during the twenty-one days following [the plan’s] submission, I received no notice from [the] Planning Board that any action was taken on said plan, and I accordingly determine, pursuant to the terms of the abovesaid statute, that the plan does not require approval under the Subdivision Control Law.” Certificate of Town Clerk Janice McGrane Pursuant to G.L. c. 41, §81P (Nov. 25, 2013). In short, it is what it says it is — a constructive endorsement, nothing more.

Conclusion

For the foregoing reasons, the plaintiffs’ motion for summary judgment is DENIED and defendant James Tolman’s motion to dismiss the complaint is ALLOWED.

Judgment shall enter accordingly.