Plaintiff Jane Magan Askew, Trustee of the Prospect Street Trust (Plaintiff), filed her unverified Complaint on August 28, 2014 pursuant to G.L. c. 40A § 17 and c. 41 § 81BB, appealing a decision of Defendant Planning Board of the Town of Tisbury (the Planning Board) denying endorsement as not requiring definitive subdivision approval of two proposed Form A subdivision of land plans (the Form A Plans). Plaintiffs Form A Plans depicted two schemes for dividing land shown as parcel 8-N-24 on the Tisbury Assessors records and located at 92 Rogers Farm Road in Tisbury, Massachusetts (the Premises) into two buildable lots. [Note 1]
Plaintiffs Complaint asks the court to annul the August 6, 2014 decision of the Planning Board not to endorse the Form A Plans. Plaintiff asserts that: 1) the Planning Boards denial is in excess of the Planning Boards authority in that the Form A Plans meet the requirements of Section 7.4 (the Deep Lot Provisions) of the Town of Tisburys Zoning By-law (By-law); and 2) the Planning Boards denial was arbitrary and capricious. The Planning Board filed an Answer to the Complaint on September 26, 2014.
On May 14, 2015, the Planning Board filed its Motion for Summary Judgment, together with a supporting memorandum, a statement of facts, and a supporting affidavit of J. Hillary Conklin, Town Clerk for the Town of Tisbury (the Conklin Affidavit). On July 3, 2015, Plaintiff filed an opposition to the Planning Boards Motion for Summary Judgment, a supporting memorandum, a response to the Planning Boards statement of facts and a statement of additional facts, and a supporting affidavit of Michael W. Panagakos (the Panagakos Affidavit), the owner of the Premises from 1974 to 1991 and at one point, a Trustee of the Prospect Street Trust. On July 27, 2015, the Planning Board filed its replymemorandum in support of its Motion for Summary Judgment, together with a response to Plaintiffs statement of additional facts. The parties made their oral arguments to the court at a hearing held on July 30, 2015, and at that time the matter was taken under advisement.
Based upon the documents and affidavit testimony in the summary judgment record, I find that the following material facts are not in dispute:
1. Plaintiff, Jane Magan Askew, as trustee of the Prospect Street Trust, is the owner of Assessors Parcel 8-N-24 located at 92 Rogers Farm Road in Tisbury, Massachusetts (the Premises).
2. The Premises is located in Residential Zone R-10 under the By-law, which requires that every lot have a minimum frontage of 80 feet.
3. On or about July 28, 2011, Plaintiff submitted to the Planning Board a letter enclosing a preliminary layout plan depicting a [Form A] subdivision of the Premises [Note 2] and requesting that the Planning Board provide its initial review of this plan before we [Plaintiff] proceed with a more formal application.
4. On September 6, 2011, the Planning Board responded to Plaintiffs letter and preliminary layout plan submission stating:
At their regularly scheduled meeting on 10 August 2011, the Planning Board reviewed the aforementioned conceptual plan, and determined that the proposed division of land did not meet the intent of the Deep Lot provision in Section 07.04 of the Zoning Bylaw.
. . . .
In the proposed division of land you submitted on your clients behalf, the lot itself does not meet our definition of a deep lot. The resulting lots are laid out side by side. The Deep Lot provision repeatedly refers to rear, and rear most, and there is no suggestion that anything other than conforming, rectangular lots lacking only in frontage was intended.
5. On or about July 24, 2014, Plaintiff submitted to the Planning Board its two Form A Plans (the side-by-side scheme and the front-and-rear scheme) prepared by SITEC, Inc. of Dartmouth, Massachusetts for Prospect Street Trust, Michael Panagakos, Trustee, and dated July 24, 2014, seeking endorsement as not requiring definitive subdivision plan approval.
6. Neither Form A Plan was entitled to traditional Approval Not Required (ANR) endorsement under G.L. c. 41, ¶81P, because the proposed divisions would leave at least one lot lacking the requisite amount of frontage in the R-10 Zoning District (80 feet).
7. Plaintiff submitted the Form A Plans for endorsement pursuant to the Deep Lot Provisions of the By-law, Section 07.04. [Note 3] The Deep Lot Provisions of the By-law provide as follows:
07.04 Deep Lot Provisions:
Where a lot fronting on a public way has a sufficient frontage to meet Schedule A (section 13.00) requirements and sufficient additional frontage to provide for an access way to the rear and sufficient area in the rear for one (1) or two (2) additional lots, the Planning Board may endorse* or approve* a plan creating such rear lots and accesses, provided:
- the lot fronting on the public way has sufficient frontage to meet the district requirements set forth in Schedule A (section 13.00) and additionally has sufficient frontage for an access way of thirty (30) foot width in the R10, R20, and R25 Districts and forty (40) feet width in all the other Districts;
- the access way is laid out along one of the depth boundary lines such that an existing or proposed structure meets the Schedule A (section 13.00) side setbacks
- the access way is continuous to the rearmost lot in full width, forty (40) or thirty (30) feet as applicable;
- the intervening lot, if any, between the front and rear lots, front on the access way for at least the frontage required by Schedule A (section 13.00)
- the access way, from the public way to the rear lot, is or becomes a part of the rear lot;
- the layout of the proposed access way would not conflict with an existent or proposed public way patterns or existing subdivision ways; and,
- in the R3A District, application of this section shall be under subdivision (Chapter 41, MGL meaning of subdivision) processing rules only.
*re: Chapter 41, Section 81K through 81GG, MGL (a/k/a The Subdivision Control Law); to endorse means that approval under the subdivision control law is not required; to approve means to approve as a subdivision. There are specific requirements relating to a division of land, whether or not a subdivision, set forth in Chapter 41, MGL.
8. The By-law does not explicitly define the term public way.
9. The By-Law defines street as an established way in public use that provides adequate public safety access.
10. The By-Law defines road as the same as a street but without the implication of specific improvements, i.e. paving, width, utilities, or sidewalks.
11. The By-law defines frontage as the line of property on a street or a public way. Corner lots shall be considered to have two (2) frontages.
12. On August 6, 2014, the Planning Board conducted a hearing concerning the Form A Plans filed by Plaintiff and voted not to endorse either. A copy of the vote was filed with the Town Clerk on August 13, 2014.
13. Rogers Farm Road does not appear on the Town Clerks listing of public ways, and the Town Clerks office has no record of the way known as Rogers Farm Road: (a) having ever been laid out or accepted by the Board of Selectmen of the Town of Tisbury and accepted as a public way by a Town Meeting vote, pursuant to G.L. c. 82 §§ 21-23; (b) being acquired by adverse possession or prescriptive easement; or (c) being dedicated to public use and accepted by the Town prior to 1846. Conklin Affidavit ¶ 3.
14. The Town of Tisburyadopted the Subdivision Control Law, G.L. c. 41 §§81K- 81GG, effective March 15, 1974.
15. A Rogers Road is shown on a subdivision plan recorded on October 28, 1970, in the Dukes County Registry of Deeds in Plan Book T, Page 25, prior to the Towns adoption of the Subdivision Control Law.
16. Mr. Panagakos was the prior owner of the Premises from 1974 to 1991. In his Affidavit, Mr. Panagakos states:
5. Since 1974, I have routinely visited the property [and] on each occasion I have seen vehicles using Rogers Farm Road and the ten foot wide way extending from Rogers Farm Road to Edgartown Road to travel from Oak Hill Avenue to Edgartown Road. Based on my observations, I believe that the public has regularly used Rogers Farm Road to get from Oak Hill Avenue Extension, a public way, to Edgartown Road, also a public way. I have also utilized Rogers Farm Road for such purpose on numerous occasions over the years.
6. I have also observed that there is a fire hydrant near the property which I believe is a public water line running through Rogers Farm Road.
The central issue in this case is whether Rogers Farm Road is a public way, such that Plaintiff is entitled to endorsement of (at least one of) her Form A Plans dividing the Premises that fronts along Rogers Farm Road into two lots under the Town of Tisburys Deep Lot Provisions.
It is well-settled that summaryjudgment is appropriate only where there are no genuine issues of material fact, and where the summary judgment record indicates that the moving party should be granted judgment as a matter of law. E.g., Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Community Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). On summary judgment, the court considers the evidence presented and the inferences drawn therefrom in the light most favorable to the non-moving party. Curly Customs, Inc. v. Bank of Boston, N.A., 49 Mass. App. Ct. 197 , 198 (2000).
The meaning of a phrase or term in a zoning by-law is a question of law, not of fact, and thus is amendable to resolution by the court on summary judgment. See Building Commr of Franklin v. Dispatch Commcns of New England, Inc. 48 Mass. App. Ct. 709 , 713 (2000).
The party seeking to prove a public way in this case, Plaintiff bears the burden of proof on the issue. Moncy v. Planning Bd. of Scituate, 50 Mass. App. Ct. 715 , 716 (2001). Although whether or not a way has become a public way by prescription is generally a question of fact, if it is shown that the party with the burden of proof cannot meet that burden, summary judgment may enter against that party. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991) ( [A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that partys case.).
I. Meaning of the Term Public Way
The term public way is undefined in the Deep Lot Provisions or anywhere else in the By- law. In the absence of an express definition, the meaning of a word or phrase used in a local zoning enactment is a question of law and is to be determined by the ordinary principles of statutory construction. Specific provisions of a zoning enactment are to be read in the context of the law as a whole, giving the language its common and approved meaning . . . . Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981) (internal citation omitted). The court must derive the words usual and accepted meanings from sources presumably known to the (by-laws) enactors, such as their use in other legal contexts and dictionary definitions. Id. (quoting Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977)) (alteration in original). Where ambiguity exists in the meaning of a term, phrase, or provision, the interpretation advanced by the local authority charged with administration of the by-law is entitled to some measure of deference, although its interpretation is not dispositive. Tanner v. Board of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2006). Where the boards interpretation is reasonable, however, the court should not substitute its own judgment. Id.
At the start, I note that the term public way, although not defined in the By-law, has a generally-accepted meaning apparent in the case law, and the term is in common use in several legal contexts. In Fenn v. Town of Middleborough, the Massachusetts Court of Appeals stated that
an existing way in a city or town in this Commonwealth is not a public way that is, one which a city or town has a duty to maintain free from defects unless it has become public in character in one of three ways: (1) a laying out by public authority in the manner prescribed by statute; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal, coupled with an express or implied acceptance by the public.
7 Mass. App. Ct. 80 , 83-84 (1979). This same definition and accepted meaning of public way appears in the legal context of zoning, and specifically in the context of subdivision ANR review. See Moncy, 50 Mass. App. Ct. at 715 (applying Fenn definition of public way to determine that town planning board properly denied plaintiffs subdivision ANR application because the proposed subdivisions of lots did not front on a public way, or any other type of qualifying way).
Recognizing that the courts crediting of this common and accepted meaning of public way might otherwise end the statutory construction inquiry, Plaintiff argues in her opposition that the drafters of the By-law evidenced an intent to adopt a broader meaning of the term public way by referencing Subdivision Control Law, G.L. c. 41 §§81K - 81GG, in the Deep Lot Provisions. In reading the term public way in the context of the By-law as a whole, according to Plaintiff, the court should conclude that the drafters intended to incorporate into the term public way all of the three types of ways described in Section 81L of the Subdivision Control Law, including:
(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 buildings erected or to be erected thereon. . . .
G.L. c. 41 §81L, ¶12.
Several counter-arguments, however, weigh against Plaintiffs broad reading of the Deep Lot Provisions. First, the only reference to the Subdivision Control Law appearing in the Deep Lot Provisions is specifically in regard to the meanings of the terms endorse and approve. Those two terms are designated with an asterisk (*) endnote, referenced to G.L. c. 41, §§ 81K through 81GG, and then specifically defined in the endnote. Had reference been intended to the different types of ways defined and set forth in Section 81L, one would expect the asterisk designation to appear next to the term public way, as well. Yet no such designation appears.
Second, as the Planning Board correctly observes, ordinary principles of statutory construction counsel against incorporating unstated terms and meanings from a different statutory provision into a provision that uses express terminology. In particular, the canon of statutory construction, inclusio unius est exclusio alterius, provides, that which is expressed is so set over by way of contrast to that which is omitted that the contrast enforces the affirmative inference that that which is omitted must be intended to have the opposite treatment. E.g., Harborview Residents Comm., Inc. v. Quincy Housing Auth., 368 Mass. 425 , 432 (1975); see also Trust Ins. Co. v. Bruce at Park Chiropractic Clinic, 430 Mass. 607 , 609 (2000) (As a general rule, an express inclusion of one thing in a statute is an implied exclusion of things not mentioned, unless the purpose of the statute would be frustrated.).
Recognizing this principle, it would be quite strange for the drafters of the Deep Lot Provisions, being aware of Section 81L and intending to include all three types of ways mentioned and defined therein into the Deep Lot Provisions (as Plaintiff argues), to choose to use the more specific term public way that appears only in part (a) of that paragraph. Common sense dictates that the drafters would have effected their broader intent for the term public way (if they had one), by either expressly citing to this portion of Section 81L, using the same terminology, or incorporating or parroting the same definitional language. Thus, from the choice of the specific term public way, when the drafters knew of and had these other options available we can infer that the drafters meant to exclude the other types of ways mentioned in Section 81L.
Third, the Deep Lot Provisions of the By-law are an expansion of what would otherwise be permitted under the state-wide Subdivision Control Law and its ANR provisions. Plaintiff admits that she did not otherwise qualify for a traditional ANR endorsement, pursuant to G.L. c. 41, ¶81P, because at least one of the lots resulting from the Form A Plans would not have adequate frontage under the By-law requirements. She therefore sought approval under the more permissive Deep Lot Provisions in the By-law. Given that the Deep Lot Provisions grant additional rights and opportunities to landowners in Tisbury to subdivide their land when it meets certain criteria, beyond what is available under the state statute, the court will look for any further intent to expand the scope of the Deep Lot Provisions to be stated expressly. Cf. Marinelli v. Board of Appeals of Stoughton, 65 Mass. App. Ct. 902 , 903 (2005).
Reviewing the language of the Deep Lot Provisions, it is apparent that the drafters intended this additionally available means for subdividing land in Tisbury to be applicable only in a limited subset of circumstances. By its own terms, the Deep Lot Provisions in the By-law allow land owners to subdivide so-called deep lots that have some minimum amount of frontage on a public way, so as to develop one or two rear lots that do not front the public way, but will be provided an access way to the front. The Deep Lot Provisions provide: Where a lot fronting on a public way has sufficient frontage . . . the Planning Board may endorse* or approve* a plan creating such rear lots and accesses . . . . [Note 4] By-law § 07.04. Thus, the lot must first have sufficient frontage on a public way for the Deep Lot Provisions to apply at all. The By-law defines [f]rontage, in relevant part, as the [l]ine of property on a street or a public way. By-law § 02.23 (emphasis added). While frontage is defined generally in the By-law to apply to two types of ways, a street or a public way, [Note 5] division under the Deep Lot Provisions is allowed only when that lot fronts on a public way.
Again, the drafters of the Deep Lot Provisions chose the more specific term, public way, over a more general term or reference (e.g., the drafters could have simply said where a lot has sufficient frontage . . .). The drafters also did not mention any of the other types of ways defined in the By- law, like street or road, let alone the types of ways described in the Subdivision Control Law, Section 81L. I must give effect to the intentions of the drafters apparent from these choices, and thus conclude that the term public way excludes, or refers to something distinct from, these other unmentioned types of ways.
Plaintiffs final argument concerning the intent of the By-law seeks to elevate the comments and actions (or lack thereof) of the Planning Board above the governing language of the By-law itself, and must accordingly be rejected. Specifically, Plaintiff avers that the Planning Boards 2011 response to Plaintiffs submission of a preliminary layout plan demonstrated that the Planning Board recognized Rogers Farm Road to qualify as a public way under the Deep Lot Provisions because the Planning Board failed to mention that the preliminary layout plan would be denied because the Premises did not front on a public way. Additionally, Plaintiff avers that when the Planning Board voted in 2014 not to endorse either of the submitted Form A Plans, in part, because the lots did not front on a public road, this evidenced the Planning Boards recognition that the term public way in the Deep Lot Provisions is actually broader than the definition supplied by cases like Fenn.
On the first issue raised by Plaintiff, it is well-settled that a municipal authority generally cannot be estopped by its prior comments and actions. See OBlenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555 , 558 (1986). This principle carries even more force where, as here, the Planning Board did not actually make a comment or take any affirmative action that could form the basis of an estoppel. Plaintiff accuses the Planning Board of not stating a ground for its opinion that the preliminary layout plan failed to meet the requirements of the Deep Lots Provisions; not that the Planning Board stated something affirmative (e.g., that the preliminary layout plan would qualify under the Deep Lot Provisions) that it now attempts to retract. Thus there was no sentiment of approval expressed by the Planning Board for Plaintiff to detrimentally rely upon. [Note 6]
Moreover, the Planning Board took no affirmative action to deny Plaintiffs plan at that time because Plaintiff had merely submitted its preliminary layout plan to the Planning Board for the Planning Boards initial review . . . before [Plaintiff] proceed[s] with a more formal application. Plaintiff has marshaled no case law to support a principle that the Planning Board must advance all of the potential reasons for its initial opinion that the proposal did not comply with the By-law, lest it later be estopped from interposing any previously unmentioned reasons once the application is eventually submitted. Under these circumstances, I cannot find that the Planning Boards failure to state that the plan did not meet the public way requirement of the Deep Lot Provisions, is itself evidence of an intent to embrace a broader meaning of the term public way that would encompass Rogers Farm Road.
On the second issue raised by Plaintiff, the August 6, 2014 Planning Board meeting minutes are hearsay and thus are not competent to prove the truth of the matter asserted that is, that the members of the Planning Board actually stated and decided that the endorsements would not be made to the two proposals because . . . the lots did not front on a public road. Nevertheless, even if the statement was before me as proper evidence, I find no import in a single reference to public road, as opposed to public way. [Note 7] Most importantly, this semantic dispute between Plaintiff and the Planning Board has no bearing on ascertaining the intent of the drafters of the Deep Lot Provisions. As discussed above, the intent of the drafters is amply evidenced in the choice to use the term public way to the exclusion of other terms and in the context of granting additional subdivision rights to landowners under a limited set of circumstances and anything the Planning Board or Plaintiff would have to say to the contrary is irrelevant.
Finally, even if Plaintiff is correct that some ambiguity exists in the use of the term public way, the court must look upon the interpretation advanced by the Planning Board with some deference and weight. Wendys Old-Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009); Livoli v. Zoning Bd. of Appeals of Soutborough, 42 Mass. App. Ct. 921 , 923 (1997); see also Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999) ([A]lthough interpretation of the by-law is in the last analysis a judicial function, deference is owed to a local zoning boards home grown knowledge about the history and purpose of its towns zoning.). Here, the Planning Board merely interprets the term public way to have the usual and accepted meaning found in case law, such as Fenn. Such an interpretation is well-nigh beyond reproach, and it appears that interpretation is deserving of the courts deference.
Pairing my examination of the applicable cannons of statutory construction and myinferences concerning the intent of the drafters, and applying due deference to the Planning Boards reasonable interpretation, I find that the term public way appearing in the Deep Lot Provisions has the usual and accepted meaning as stated by the Appeals Court in Fenn. [Note 8] Namely, under the Deep Lot Provisions, a way in existence is only a public way if it has become public in character in one of three ways: (1) a laying out by public authority in the manner prescribed by statute; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal, coupled with an express or implied acceptance by the public. Fenn, 7 Mass. App. Ct. at 83-84. The remaining question before the court, then, is whether Rogers Farm Road qualifies as a public way under the definition and criteria set forth in Fenn.
II. Whether Rogers Farm Road is a Public Way
Before addressing the substance of Plaintiffs argument as to whether Rogers Farm Road is or has become a public way by prescription (or any other way described by Fenn), I must first determine whether the argument has been inadequately raised (and thus waived) by Plaintiff, as the Planning Board suggested at the summary judgment hearing. [Note 9] Plaintiffs five-page opposition largely focuses on her statutory construction argument, addressed and rejected supra, but nonetheless raises the public way by prescription argument twice: once in the final paragraph of the Summary of Argument section, and a second time, in the final paragraph of the Argument section. The Panagakos Affidavit submitted with Plaintiffs opposition, moreover, largely focuses on the assertion that Rogers Farm Road is a public way by prescription. [Note 10] As a result it appears that whether Rogers Farm Road is a public way under any of those three methods described in Fenn, including by prescription, is adequately put in issue by the motion and opposition papers before me.
The burden of proving a public way is on Plaintiff in this case. Moncy, 50 Mass. App. Ct. at 716. If it is shown on the summary judgment record that Plaintiff cannot expect to meet that burden at trial, summary judgment may enter against her. Kourouvacilis, 410 Mass. at 716. As discovery has long ago ended, and both Plaintiff and the Planning Board agreed and represented to the court that the issues presented are ripe for resolution, [Note 11] to defeat the Planning Boards instant motion, I expect to see a factual showing sufficient to demonstrate that Plaintiff can meet that burden at trial or that a genuine question of material fact exists on the matter.
Addressing the methods set forth in Fenn, Plaintiff alleges that Rogers Farm Road has become a public way by prescription and provides the Panagakos Affidavit in support. Plaintiff has not alleged that Rogers Farm Road is a public way by either of the other two methods outlined in Fenn, i.e. by a laying out by public authority in the manner prescribed by statute or by a dedication by the owner to public use, permanent and unequivocal, coupled with an express or implied acceptance by the public prior to 1846. Id. at 83-84. The Planning Board asserts that Rogers Farm Road meets none of the Fenn criteria and provides the Conklin Affidavit as evidence. As to the two methods outlined in Fenn that are not related to a public prescriptive rights claim, Plaintiff responds with no evidence byaffidavit or otherwise pursuant to Rule 56(e) to contest the Conklin Affidavit and the Planning Boards contentions. As a result, I find that Rogers Farm Road is not a public way by virtue of either of these other two methods set forth in Fenn, and I move on to address Plaintiffs argument that Rogers Farm Road is a public way by prescription.
It is well settled that the creation of a public way by adverse use depends on a showing of actual public use, general, uninterrupted, continued for [the prescriptive period]. Fenn, 7 Mass. App. Ct. at 84 (quoting Jennings v. Tisbury, 5 Gray 73 , 74 (1855)).
That there was continued use by the public for more than twenty years does not in itself raise a presumption that such use was adverse. To establish such a use the further fact must be proved, or admitted, that the general public used the way as a public right; and that it did must be proved by facts which distinguish the use relied on from a rightful use by those who have permissive right to travel over the private way.
Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487 , 490 (1969) (quoting Bullukian v. Franklin, 248 Mass. 151 , 155 (1924)). [D]etermining whether a public way has been established by prescription over a private way is a matter of considerable general public interest and concern, and the case law erects a high bar to making such a showing. Stone v. Garcia, 15 LCR 640 , 647-48 (2007) (Misc. Case No. 260887) (Piper, J.).
Here, to demonstrate that she can meet her burden or, alternatively, that a genuine question of material fact exists, Plaintiff presents the testimony of Mr. Panagakos, who came into possession of the Premises in 1974 (and owned it until transferring the Premises to the Prospect Street Trust in 1991) and who has continued to visit the property until present.
Unfortunately, even drawing all inferences in favor of Plaintiff, the Panagakos Affidavit is insufficient to show either that a genuine question of material fact exists or that Plaintiff would be able to carry her burden to prove that Rogers Farm Road is or has become a public way by prescription. First, the testimonyof Mr. Panagakos demonstrates onlysporadic and unverified use of Rogers Farm Road by the public. See Rivers v. Warwick, 37 Mass. App. Ct. 593 , 597 (1994). Mr. Panagakos does not specify with what frequency he has visited the property and made his observations, besides stating that it was routinely. Even if the court infers a frequent routine, say daily or weekly, Mr. Panagakos supplies no further details and makes no distinction between vehicular use by or related to the abutting property owners (which would be entirely consistent with Rogers Farm Road being a private way), and vehicular use by the general public for purposes other than those related to the abutting properties. Plaintiff thus fails to distinguish the use relied on from a rightful use by those who have permissive right to travel over the private way. Boxborough, 356 Mass. at 490 (internal quotation marks omitted).
Exacerbating this deficiency, it is onlyon Mr. Panagakoss belief [Note 12] that the public has used Rogers Farm Road to get from Oak Hill Avenue Extension to Edgartown Road. [Note 13] No details are provided to substantiate his belief (or differentiate the vehicular traffic he has observed as public traffic, rather than private) other than that Mr. Panagakos has done this himself. Of course, his own use of Rogers Farm Road during his ownership of the Premises is entirely consistent with it being a private way, and cannot form the basis of a public prescription claim. Even after he sold the property to the Prospect Street Trust, he served as a Trustee thereof until at least July 24, 2014, and it is clear from his own affidavit that Mr. Panagakos has remained involved in the Prospect Street Trusts activities with regard to the property. Thus his use of Rogers Farm Road (likely as an invitee of the Prospect Street Trust) after the date he conveyed the property, is also consistent with Rogers Farm Road being a private way. Even were these points not an obstacle, a single individuals sporadic use of the way on occasion would not be sufficient to demonstrate continuous, uninterrupted, public use of the way. Even if Plaintiff could establish that members of the public actually used Rogers Farm Road in an uninterrupted and continuous manner for at least twenty years (which it appears Plaintiff cannot do), the record is entirely devoid of evidence and Mr. Panagakos is incapable of filling that void that the public did so under a public claim of right, rather than pursuant to permission or with invitation from those holding the private right. See Boxborough, 356 Mass. at 490 (citing Bullukian, 248 Mass. at 155). [Note 14]
Finally, the presence of the fire hydrant and public water line (which again, is only alleged to exist on Mr. Panagakoss belief) is not sufficient evidence to show that Rogers Farm Road is a public, rather than private, way. In Fenn, the Court of Appeals held that the presence of municipal street and traffic signs cannot be regarded as evidence sufficient to show that a way has become public by prescription, because such a recognition would have the practical effect of permitting municipal officials to establish public ways by acts other than those specified in the statutes governing the laying out of public ways. Fenn, 7 Mass. App. Ct. at 86. The same is readily said of the presence of a fire hydrant and public water line to service it. Fire hydrants are generally installed to protect the safety of surrounding properties and their occupants from fire hazards. To allow the town to gain prescriptive rights over an otherwise private way by virtue of the installation of necessary fire protective measures would be an unreasonable result, and would improperly permit municipal officials to establish public ways by acts other than those specified in the statutes governing the laying out of public ways. Id.
As a result of the foregoing analysis, I find that Plaintiff has not raised sufficient facts to demonstrate a genuine dispute that Rogers Farm Road is or has become a public waybyprescription. I further find that the factual evidence mustered by Plaintiff is insufficient to sustain Plaintiffs burden to demonstrate that Rogers Farm Road is a public way by prescription. Consequently, the Planning Board is entitled to summary judgment on this issue.
Per the foregoing discussion, I find that the term public way as used in the Deep Lot Provisions of the By-law has the usual and accepted meaning as stated by the Appeals Court in Fenn, 7 Mass. App. Ct. at 83-84. Namely, under the Deep Lot Provisions, a way in existence is only a public way if it has become public in character in one of three ways: (1) a laying out by public authority in the manner prescribed by statute; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal, coupled with an express or implied acceptance by the public. Id. I find that Rogers Farm Road is not a public way by virtue of a laying out by public authority in the manner prescribed by statute, or by a dedication by the owner to public use, permanent and unequivocal, coupled with an express or implied acceptance by the public prior to 1846. Id. I further find that Plaintiff has not raised sufficient facts to demonstrate a genuine dispute that Rogers Farm Road is or has become a public way by prescription. Finally, I find that the factual evidence mustered by Plaintiff is insufficient to sustain Plaintiffs burden to demonstrate that Rogers Farm Road is a public way by prescription. Accordingly, the Planning Boards Motion for Summary Judgment is hereby ALLOWED in all respects.
Judgment to enter accordingly.
[Note 1] Each Form A Plan was prepared by SITEC, Inc. of Dartmouth, Massachusetts for Prospect Street Trust, Michael Panagakos, Trustee, and dated July 24, 2014.
The first scheme for division depicts Lot 1 and Lot 2 in a side-by-side configuration fronting along Rogers Farm Road (hereinafter, the side-by-side scheme). Lot 1 is west of Lot 2 with 30 feet of frontage on Rogers Farm Road. Lot 1 then enlarges in a triangular shape to a 100 foot width before straightening its east side lot line 50 feet before the back (north) original lot line. Lot 2 is east of Lot 1 with 120 feet of frontage on Rogers Farm Road. Lot 2 then follows the original angled lot line along the east and the new angled lot line for Lot 1 along the west in a parallelogram shape, before straightening its connection 50 feet before the original back (north) lot line. This configuration is substantially similar to a preliminary layout plan dated June 28, 2011, and prepared by SITEC, Inc. for Michael Panagakos that Mr. Panagakos submitted for initial review to the Planning Board on July 28, 2011. See infra.
The second scheme for division depicts a front and rear configuration (hereinafter, the front-and-rear scheme). Lot 1 is a rear lot situated northeast of and behind Lot 2 in a triangular shape, with an access path 30 feet in width snaking around the perimeter of the original north and west lot lines, along the back (north) and west side of Lot 2, and connecting to Rogers Farm Road with 30 feet of frontage thereon. Lot 2, which is shaped like an uneven pentagon, has 120 feet of frontage on Rogers Farm Road, but due to the access path connecting to Lot 1 behind it, Lot 2 no longer reaches the back of original Lot 8-N-24.
[Note 2] The preliminary layout plan prepared by SITEC, Inc. and dated June 28, 2011 is substantially similar to the side-by-side scheme for division, dated July 24, 2014, ultimately submitted to the Planning Board with Plaintiffs application for endorsement. See supra note 1.
[Note 3] Section 07 is entitled General Regulations.
[Note 4] It is also abundantly clear from this language that the Planning Board is imbued with full discretion on whether to endorse or approve subdivisions under the Deep Lot Provisions of the By-law, even when a proposed subdivision plan meets all of the requirements of the Deep Lot Provisions. Compare By-law Sec, 07.04 (. . . the Planning Board may endorse* or approve* a plan creating such rear lots and accesses . . . . (emphasis added)) with G.L. c. 41 § 81P (...if the board finds that the plan does not require such approval, it shall forthwith, without a public hearing, endorse . . . . (emphasis added)).
[Note 5] As noted by the Planning Board, the fact that the By-law refers to, and indeed distinguishes between, a street and a public way, shows that the terms have distinct meanings in the By-law. In fact, street is a defined term meaning, [a]n established way in public use that provides adequate public safety access. By-law § 02.73. It follows then, that an interpretation of public way that would also fully subsume the meaning of street, or vice versa, would violate the cannon of statutory construction that no term or provision should be interpreted to render any other term or provision as mere surplusage. See, e.g., Providence & Worcester RR Co. v. Energy Facilities Siting Bd., 453 Mass. 135 , 145 (2009).
In any event, Plaintiff advances no argument that Rogers Farm Road would qualify as a street under the By-law because it is an established way in public use that provides adequate public safety access, nor does it appear that such argument would change the analysis of the legal question presented by this motion.
[Note 6] It does not escape the courts notice that it is strange that the Planning Boards 2011 response to Plaintiff did not provide this more simple grounds for denial that Rogers Farm Road did not front on a public way as required by the Deep Lot Provisions. However, it may be that the Planning Board had not inquired of the Town Clerk whether or not Rogers Farm Road was a public way at the time it reviewed what was only then Plaintiffs preliminary layout plan. Whatever the reason may be, as discussed infra, Plaintiff has cited no authority specifying that a planning board will be bound by its failure to provide an additional reason to deny endorsement, particularly where it is imbued with full discretion to deny endorsement even when a proposal meets all of the requirements of the Deep Lot Provisions, see supra note 4.
[Note 7] The Planning Board alleges that this reference is a scriveners error, and the context supports that allegation. In two prior references to Plaintiff's proposals, the minutes indicate that the Planning Board members used the term public way.
[Note 8] Because I reach this conclusion, I need not address Plaintiffs argument that Rogers Farm Road qualifies as 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 buildings erected or to be erected thereon under Subdivision Control Law. G.L. c. 41 §81L, ¶12(c).
I do note, however, that Plaintiff has not provided sufficient evidence to raise a genuine fact dispute or to carry her burden to prove that Rogers Farm Road would have met this qualification, even if it applied to the Deep Lot Provisions (which I rule it does not). See Kourouvacilis, 410 Mass. at 716.
Hypothetically, while Plaintiff has adduced sufficient evidence that Rogers Farm Road was a way in existence when the subdivision control law became effective in Tisbury, she has not, as a matter of law, supplied sufficient evidence that Rogers Farm Road has in the opinion of the planning board, sufficient width, suitable grades and adequate construction . . . . G.L. c. 41 §81L, ¶12 (c) (emphasis added). Plaintiff, at the end of fact discovery, supplies the court with no facts or expert opinion regarding the sufficiency of width, suitability of grade, and adequacy of construction of Rogers Farm Road. Thus, were trial to proceed, the court cannot expect to have any basis to determine whether the opinion of the planning board to the contrary would be arbitrary or capricious. The fact dispute Plaintiff attempts to raise is thus not genuine.
[Note 9] The Planning Boards reply brief does not address Plaintiff's prescription argument or the Panagakos Affidavit. The Planning Boards oral argument followed suit, leading the court to inquire of the Planning Board's position and response. The Planning Board suggested that Plaintiff waived the argument, but nonetheless argued that, even if not waived, Plaintiff has not alleged sufficient facts through the Panagakos Affidavit to show that she will be able to carry her burden to prove that Rogers Farm Road is a public way by prescription.
[Note 10] The seventh and final paragraph of the Panagakos Affidavit relates to Mr. Panagakoss submission of the preliminary layout plan to the Planning Board in 2011 and the Planning Boards response. Panagakos Aff. ¶ 7.
[Note 11] By Post-hearing Order dated October 20, 2014, this court set a discovery completion deadline of February 28, 2015. On March 17, 2015, the court held a status conference at which the Planning Boards counsel failed to appear, but Plaintiffs counsel represented that discovery was, in fact, complete. The court issued a fifteen-day nisi order for the Planning Boards counsel to show good cause for his absence. The Planning Boards counsel responded on March 25, 2015 and represented that the parties agreed that this case is ripe for resolution bydispositive motions, and agreed upon a briefing schedule for said motions. See Post-hearing Order, dated April 29, 2015. The court thus set the requested briefing and hearing schedule. Neither the Planning Board nor Plaintiff has asserted that any further discovery is needed.
[Note 12] Rule 56(e) requires that affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein. See Stanton Indus., Inc. v. Columbus Mills, Inc., 4 Mass. App. Ct. 793 (1976). Conclusory statements, general denials, and factual allegations not based on personal knowledge are insufficient toavoid summaryjudgment. Madsen v. Erwin, 395 Mass. 715 , 721 (1985) (quoting Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972)). Moreover, [a]ll affidavits or portions thereof made on information and belief, as opposed to personal knowledge, are to be disregarded in considering a motion for summary judgment. Id. (quoting Shapiro Equip. Corp. v. Morrison & Son Constr. Corp., 369 Mass. 968 , 968 (1976)). Although the Planning Board has not moved to strike portions of the Panagakos Affidavit, these portions that are made upon Mr. Panagakoss information and belief must nonetheless be disregarded by the court.
[Note 13] That Rogers Farm Road connects to two public ways Oak Hill Avenue Extension and Edgartown Road does not resolve whether it is a public way rather than private. Both public and private ways can connect to public ways at their ends. See Fenn, 7 Mass. App. Ct. at 85 & n.3.
[Note 14] In Bullukian, 248 Mass. at 155, a land registration case, Plaintiff business owner appealed a land court decision subjecting a portion of the land he claimed in fee to prescriptive public way rights based on the use of the way as a public road. Of note to the Court was that Plaintiff kept open and unobstructed the private way so that all persons might travel over it in connection with the business of such owner, and that the owner could not have closed the private way to the public (as distinguished from invitees) without inconvenience to himself and his customers. Id. Thus, the Court found it apposite that the Town prove adverse use under claim of right, as distinguished from a use which is permitted. Id. On the facts provided, however, it would be difficult to ascertain whether the person travelling on the way was doing so as a mere traveller under a claim of right, or was one who used it at the invitation or with the permission of the owner. Id. (citing Durgin v. Lowell, 3 Allen 398 ). Mr. Panagakoss observations suffer from the same difficulty observed by the court in Bullukian, and Mr. Panagakos has not demonstrated that he can credibly testify to any such distinction among those traveling on Rogers Farm Road.