JANE MAGAN ASKEW, Trustee of the Prospect Street Trust vs. DANIEL SEIDMAN, JEFFREY THOMPSON, CHERYL DOBLE, BENJAMIN ROBINSON and L. ANTHONY PEAK, all as members of the Planning Board for the Town of Tisbury.

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”). Plaintiff’s Form A Plans depicted two schemes for dividing land shown as parcel 8-N-24 on the Tisbury Assessor’s records and located at 92 Roger’s Farm Road in Tisbury, Massachusetts (the “Premises”) into two buildable lots. [Note 1]

Plaintiff’s 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 Board’s denial is in excess of the Planning Board’s authority in that the Form A Plans meet the requirements of Section 07.04 (the “Deep Lot Provisions”) of the Town of Tisbury’s Zoning By-law (“By-law”); and 2) the Planning Board’s 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 Tilbury (“Conklin Affidavit”). On July 3, 2015, Plaintiff filed an opposition to the Planning Board’s Motion for Summary Judgment, a supporting memorandum, a response to the Planning Board’s statement of facts and a statement of additional facts, and a supporting affidavit of Michael W. Panagakos, the owner of the Premises from 1974 to 1991 (“Panagakos Affidavit”) and at one point, the Trustee of the Prospect Street Trust. On July 27, 2015, the Planning Board filed its reply memorandum in support of its Motion for Summary Judgment, together with a response to Plaintiff’s 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.

The court has issued a decision (the “Decision”) as of today’s date. In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED 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 v. Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979). 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.; and,

ORDERED and ADJUDGED that Roger’s 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.; and,

ORDERED and ADJUDGED that Plaintiff has not raised sufficient facts to demonstrate a genuine dispute that Roger’s Farm Road is or has become a public way by prescription; and

ORDERED and ADJUDGED that the factual evidence mustered by Plaintiff is insufficient to sustain Plaintiff’s burden to demonstrate that Roger’s Farm Road is a public way by prescription; and,

ORDERED and ADJUDGED that the Planning Board’s Motion for Summary Judgment is hereby ALLOWED in all respects.

By the court.