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 07.04 (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 Tilbury (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 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 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.
The court has issued a decision (the Decision) as of todays 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 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.; and,
ORDERED and ADJUDGED 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; and
ORDERED and ADJUDGED 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; and,
ORDERED and ADJUDGED that the Planning Boards Motion for Summary Judgment is hereby ALLOWED in all respects.
By the court.
[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 8-N-24 lot line. Lot 2 is east of Lot 1 with 120 feet of frontage on Rogers Farm Road. Lot 2 then follows the original Lot 8-N-24 angled lot line along the east and the new angled lot line for subdivision Lot 1 along the west in a parallelogram shape, before straightening its connection 50 feet before the original Lot 8-N-24 back (north) lot line. This configuration is similar to a preliminary layout plan dated June 28, 2011, and prepared by SITEC, Inc. for Michael Panagakos that Mr. Panagakos submitted to the Planning Board on July 28, 2011 for its initial review. 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 Lot 8-N-24 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 does not reach the back of the original Lot 8-N-24.