MISC 13-480712

July 17, 2014

Essex, ss.




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.


“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.


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.


[Note 1] There are also other reasons. As the case law notes, even a plan showing zoning violations can serve many legitimate purposes. “[It] may be preliminary to an attempt to obtain a variance, or to buy abutting land which would bring the lot into compliance, or even to sell the non-conforming lot to an abutter and in that way bring it into compliance.” Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 , 604 (1980).

[Note 2] Under G.L. c. 40A, §6, sixth paragraph, “when a plan referred to in section eighty-one P of chapter 41 [i.e., an ANR plan] has been submitted to a planning board and written notice of such submission has been given to the city or town clerk, the use of the land shown on said plan shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of the submission of such plan…” (emphasis added). This freeze remains in effect “while such plan is being processed under the subdivision control law including the time required to pursue or await the determination of an appeal referred to in said section, and for a period of three years from the date of endorsement by the planning board that approval under the subdivision control law is not required, or words of similar effect.” G.L. c. 40A, §6.

The “sixth paragraph” freeze is a limited one. It extends only to “use” (e.g. “residential”, “industrial”, “multi-family”, etc.), Bellows Farms Inc. v. Building Inspector of Acton, 364 Mass. 253 , 260 (1973) (freeze is limited to “protection only against the elimination of or reduction in the kinds of uses which were permitted when the plan was submitted to the planning board”), and only to the overall land shown on the plan, not the individual lots. Cicatelli v. Bd. of Appeals of Wakefield, 57 Mass. App. Ct. 799 , 803-805 (2003). It does not extend to any other requirements of the zoning bylaw or ordinance unless “the impact of such changes, as a practical matter, were to nullify” the use protection, Cape Ann Land Dev. Corp. v. Gloucester, 371 Mass. 19 , 22 (1976). In such cases, a “reasonable accommodation” with the dimensional regulations is made so the use can continue. Perry v. Bldg. Inspector of Nantucket, 4 Mass. App. Ct. 467 , 472 (1976). What constitutes a “reasonable accommodation” depends on the facts of the case. Id.

[Note 3] Under G.L. c. 40A, §6, fourth paragraph, “[a]ny increase in area, frontage, width, yard, or depth requirement of a zoning ordinance or by-law shall not apply for a period of five years from its effective date or for five years after January first, nineteen hundred and seventy-six, whichever is later, to a lot for single and two family residential use, provided the plan for such lot was recorded or endorsed and such lot was held in common ownership with any adjoining land and conformed to the existing zoning requirements as of January first, nineteen hundred and seventy-six, and had less area, frontage, width, yard or depth requirements than the newly effective zoning requirements but contained at least seven thousand five hundred square feet of area and seventy-five feet of frontage, and provided that said five year period does not commence prior to January first, nineteen hundred and seventy six, and provided further that the provisions of this sentence shall not apply to more than three of such adjoining lots held in common ownership. The provisions of this paragraph shall not be construed to prohibit a lotbeing built upon, if at the time of the building, building upon such lot is not prohibited by the zoning ordinances or by-laws in effect in a city or town.” (emphasis added).

[Note 4] The town clerk has duly issued a certificate reflecting the constructive endorsement. Certificate of Town Clerk Janice McGrane Pursuant to G.L. c. 41, §81P (Nov. 25, 2013).

[Note 5] In their complaint, the board and building inspector take the position that ANR endorsement is not appropriate because Pingree Road is not shown on the town’s Official Map (Complaint at 6, ¶ 42), does not appear on an approved subdivision plan (id.), is not a public way (Complaint at 6, ¶41), and was not a “way in existence when the subdivision control law first became effective in the town [October 7, 1954] … [with] sufficient width, suitable grades and adequate construction,” etc. (id.). Mr. Tolman counters that Pingree Road does appear on the Official Map (although without a name), that it existed prior to October 7, 1954, and that it has sufficient width, grades and construction for vehicular traffic. For purposes of these rulings, I need not and do not decide whether, had a constructive endorsement not occurred and these issues been reached on their merits, the board could permissibly have denied ANR endorsement. In any event, such a review would require the resolution of genuine issues of material fact. See, e.g, Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144 (1983) (even if “public”, road must exist on the ground in a form which satisfies the goal of G.L. c. 41, §81M).

[Note 6] In relevant part, G.L. c. 249, §4 provides:

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 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-laws or regulations, in the land court or, if the matter involves fence viewers, in the district court. Such action shall be commenced within sixty days next after the proceedings complained of. …The court may enter judgment quashing or affirming such proceedings or such other judgment as justice may require.

[Note 7] Count I of the plaintiffs’ Complaint (a purported appeal under G.L. c. 41, §81BB) is thus dismissed.

[Note 8] In relevant part, G.L. c. 41, §81Y provides:

In any city or town in which the subdivision control law is in effect, the board or officer, if any, having the power and duty to issue permits for the erection of buildings shall not issue any permit for the erection of a building until first satisfied that the lot on which the building is to be erected is not within a subdivision, or that a way furnishing the access to such lot as required by the subdivision control law is shown on a plan recorded or entitled to be recorded under section eighty-one X, and that any condition endorsed thereon limiting the right to erect or maintain buildings on such lot have been satisfied, or waived by the planning board….