ANNE C. HARRIS and FRANK DEIULIS, as TRUSTEES of WILSON POND REALTY TRUST v. KENNETH WARD, as BUILDING INSPECTOR of the TOWN OF ROWLEY, and NATHANIEL N. DUMMER, et al., as they are MEMBERS of the BOARD OF APPEALS for the TOWN OF ROWLEY.

Plaintiffs Anne C. Harris and Frank DeIulis, as Trustees of the Wilson Pond Realty Trust (Plaintiffs), initiated this action on February 14, 2000. They appeal, pursuant to G. L. c. 40A, § 17, two decisions (Decisions) of the Town of Rowley Board of Appeals (Board), whose members are Defendants. The decisions upheld the Building Inspector's determination that two lots owned by Plaintiffs do not have legal frontage and therefore are not buildable (Permit Denials). Plaintiffs proposed to build single-family dwellings, one on each of the two lots located a way referred to as Meetinghouse Road, but had not yet prepared plans for construction on the lots. The Board upheld the Permit Denials on the basis that both lots lacked legal frontage, and required a variance. This appeal followed. [Note 1]

On May 8, 2015, this court conducted a view of Plaintiffs' property and the ways surrounding the property - specifically Meetinghouse Road and Ellsworth Road, from Wilson Pond Lane to Leslie Road - in the presence of counsel and the parties' expert witnesses. Two days of trial followed on May 13 and 14, 2015. Testifying for Plaintiffs were Attorney Edward A. Acton; Donald I. Desmond, Jr., a professional land surveyor; Charles E. Wear III, a licensed civil engineer and certified soil evaluator; Anne Harris; Frank DeIulis; and his nephew, Patrick DeIulis. Testifying for Defendants were James C. Broderick, the Town's Fire Chief; Ronald Keefe, a foreman in the Town's Highway Department; and Patrick Snow, the Town's Highway Surveyor. Fifty-eight exhibits, some with multiple parts, were entered in evidence. [Note 2]

At the conclusion of trial, the parties agreed to engage in conciliation discussions facilitated by the Hon. Howard P. Speicher, and he conducted several sessions with the parties in an attempt to help them reach consensus. Despite their diligent efforts, the parties were unable to reach a settlement. During this process, the court granted the parties extensions for the filing of post-trial briefs, with a final deadline of January 25, 2017, after they reported that they had reached an impasse. Only Defendants filed a post-trial brief.

The facts set forth below include the parties' stipulated facts from their final joint pre-trial memorandum, facts established at trial through credible testimony and documentary evidence, and the reasonable inferences drawn therefrom, all informed by the court's observations at the view.

Facts

1. Plaintiffs own two lots (Plaintiffs' Lots or Lots) located on a way known as Meetinghouse Road, also known as Ellsworth Road in Rowley. The Lots are shown on Assessor's Map 6 of 1999 as Lot (a/k/a Block) 5, which is approximately five acres in area, and as a Lot comprised of Lots 7 and 8 (a/k/a Block) which is approximately 11.58 Acres.

2. Recorded deeds and plans for land in the area of the Lots refer to Meetinghouse Road variously as Meeting House Road, Old Meetinghouse Road, New Meetinghouse Road and Meetinghouse Lane. The eastern end of the way abutting the Lots connects to Leslie Road, a public way, frequently referred to as Ellsworth Road. The western end of the way abutting the Lots connects with Wilson Pond Lane, also a public way, via a section of Ellsworth Road. [Note 3]

3. The Lots were included in land Plaintiffs acquired in 1987. That acquisition also included land which later became the Wilson Pond Subdivision, and three lots that abut Ellsworth Road: Lots 41-12, 41-13, and 40B. The Wilson Pond Subdivision was approved by the Rowley Planning Board on March 15, 1989. Wilson Pond Lane was installed after 1989. By the time of trial, it was a public way.

4. In 1991, Plaintiffs conveyed Lot 41-12, and, in 1992, they conveyed Lot 41-13 (both lots as shown on plans of the Wilson Pond Subdivision). The two lots were conveyed with the benefit of 20-foot easement for passage by foot and vehicle, in common with Plaintiffs and their successor and assigns, over the way shown on the plans as "Ellsworth Road Easements," between Meetinghouse Road and Wilson Pond Lane. Plaintiffs access their undeveloped Lots via the western end of the way abutting them and the portion of Ellsworth Road that connects to Wilson Pond Lane. The eastern end of the way abutting their Lots connects with Leslie Road, a public way, also sometimes referred to as "Ellsworth Road."

5. In June 1999, Plaintiffs applied for two building permits to build single-family homes, one on Lot 5 and one on Lot 7/8. The Building Inspector denied the applications, citing the need for a variance for "Lot Frontage." Plaintiffs appealed to the Board, which voted to deny the requests to override the rejection of the Building Inspector in two decisions filed with the Town Clerk January 26, 2000.

a. With regard to the application for Lot 5 (Case no. A0-08), the Board found "the Applicant has shown no evidence that Meetinghouse Lane (Road) meets the requirements for Frontage under MGL c. 82, a Public Way under MGL Chapter 82, a Town Way under MGL Chapter 82, Section 21, or a Town Way under MGL Chapter 41."

b. With regard to the application for Lot 7/8 (Case no. A0-07), the Board first found "there is inadequate frontage for a house lot on Ellsworth Road" and additionally found, consistent with its finding in Case No. A0-08, "the Applicant has shown no evidence that Meetinghouse Lane (Road) meets the requirements for Frontage under MGL c. 82, a Public Way under MGL Chapter 82, a Town Way under MGL Chapter 82, Section 21, or a Town Way under MGL Chapter 41."

6. Lot 5 is bounded by the Disputed Way for 271 linear feet. Lot 7/8 is bounded by the Disputed Way for at least 150 linear feet. Plaintiffs' Lots are located in the "Outlying District" zoning district, and have been since the Town adopted its zoning bylaw on March 7, 1960 (Bylaw).

7. The current Section 6.1.1(b) of the Bylaw provides that a lot in the Outlying District must have at least sixty-thousand square feet of area and one hundred and fifty feet of "frontage."

8. At the time of Plaintiffs' building applications, Bylaw § 6.4.17 defined "frontage" as "[t]he continuous distance unencumbered by easements or otherwise, measured between the side lot lines at the street line or a way which qualifies for frontage under [G. L. c.] 41, Section 81I." [Note 4]

9. The current Bylaw defines "frontage" as "[t]he continuous distance, unencumbered by easements or otherwise, measured between the side lot lines at the street line on a way that qualifies for frontage under M. G. L. c. 41, § 81L. . . (for purposes of this definition, a common driveway shall not be considered to be an easement or other form of encumbrance)."

Historical Town Actions (Beginning in the 1770s)

10. In 1770, the Rowley Selectmen laid out a way which was accepted at a May 14, 1772 Town Meeting (1772 Way). The 1772 Way, as accepted, is described in the minutes from the May 14, 1772 meeting as one and one-half rods wide at a stake and stones on the "Easterly side of the High Way that leads by Francis Pingrees House about Twenty Rods to the Southward of said House," then by described metes and bounds in a generally easterly direction, and ending at "a Stake and Stones by the High Way and about twenty Rods to the Northward of Line Brook Meeting House." [Note 5]

a. The "High Way that leads by Francis Pingrees House" referenced in the description of the 1772 Way is now known as Newbury Road. The "High Way" that is the terminus of the 1772 Way is now known as Leslie Road. Line Brook Meeting House is also known as Linebrook Meeting House. At the time of the prior 1770 meeting in which the Selectmen laid out the way, the Linebrook Meeting House was located on the westerly side of the road now called Leslie Road.

b. In 1770, the Francis Pingree House was situated on the highway now known as Newbury Road approximately twenty rods north of the western end of the 1772 Way.

11. On November 11, 1773, the Town voted to pay "Mr. Amos Jewett . . . in part for the pay for the road the Town laid out through his land and for fencing out said road," and to pay "Francis Pingree four pound ten shilling in full for the Damages of the aforesaid road going through his land." [Note 6]

12. On August 3, 1774, The Town voted for "the present Select-men of the Town . . . to settle with Rev. George Leslie respecting a way the Town laid out on his land." [Note 7] On September 22, 1774, the Town voted to pay, "to the Rev. George Leslie for land for a way and fence . . . " On November 24, 1777, the Town voted to pay Jeremiah Ellsworth . . . for "land for a Road and fence in Linebrook." [Note 8]

13. Based on the title documents in evidence and the documents relating to the historical town actions referenced above, the section of Ellsworth Road located between Meetinghouse Road and Wilson Pond Lane was not laid out by the Town of Rowley.

14. In 1828, the Linebrook Meeting House was moved from Rowley to the Town of Ipswich.

a. Article 2, approved at the November 3, 1828 Town Meeting, provides:

that so much of the road named in said article, as is situate between the road which passes by the house of Moses Pingry, and the Southeasterly corner of Daniel Ellsworth farm, (said corner is [blank] distant, westerly from the easterly end of the road) be discontinued as a town road, reserving however the right of a private way over the same ground where said road now lies, for the accommodation of those persons who may have occasion to use the same in going to their lands or for other purposes, and the said road is discontinued on this further condition, viz, that those persons to whom the said road may revert, and their heirs and assigns, shall, on including the said road or any part thereof within their adjoining enclosures, or shall in any way fence up and enclose the said road, forever after or so long as they keep the same enclosed, be holden to make, keep and maintain good and convenient gates or bars at each and every place where a fence may be placed across said road or way.

15. The ways known as Ellsworth Road and Meetinghouse Road, and the way abutting Plaintiffs' Lots (the Disputed Way) existed before the Town adopted the Subdivision Control Law in 1952.

16. The Rowley Planning Board approved a subdivision plan entitled "Definitive Plan Leslie Terrace Subdivision, Plan of Land in Rowley, Mass." dated October 19, 1974, recorded in Plan Book 134, Plan 57 (Ex. 11A). In 1983, the Planning Board further approved a plan titled "Definitive Plan of Land of Leslie Terrace Subdivision in Rowley," revised February 1, 1983, and recorded in Plan Book 177, Plan 32 (Ex. 11B). A "Covenant and Agreement for Leslie Terrace Subdivision" also dated February 1, 1983, between the Planning Board and the developers of the Leslie Terrace Subdivision, John and Judy Aucella, dated February 1, 1983, provides the following: "[r]oadway not to be constructed; limited access to four lots from Ellsworth Road (not an accepted street)."

17. On August 12, 1993, the Town Zoning Board determined, on an appeal of a decision by the Building Inspector regarding Lot 37-2 within the Leslie Terrace Subdivision, that access to that lot via Ellsworth Road and a deeded easement satisfied the frontage requirements of the Bylaw. [Note 9]

18. In a letter to the Town Clerk dated September 21, 1995, Plaintiffs' counsel stated he represented a party interested in the purchase of land located off a way known as Ellsworth Road. He requested, "[p]ursuant to [G. L. c. 233, § 79F] . . . that you send me your written certification of whether that portion of the way known as Ellsworth Road running from Leslie Road toward Wilson Pond, and adjacent to Lots 5 and 8 as shown on Rowley Assessor's Map 6, is a Public Way." The Town Clerk responded in a letter dated September 26, 1995: "[i]n response to your letter of September 21, 1995, Ellsworth Road is a public right of way under Chapter 81, being a dirt way of .37 miles."

19. A Road Inventory Printout of the Massachusetts Highway Department, revised January 1998, classifies Ellsworth Road as a 0.78 mile-long single lane "Town Accepted Road," beginning and ending on Leslie Road, on level terrain with a twenty-foot right of way, pavement eight feet wide of gravel or stone, used for two-way traffic in "deficient" condition. [Note 10] The same inventory classifies Meetinghouse Lane as a 0.15 mile-long single lane "Town Accepted" dead end road, beginning at Ellsworth Road, on level terrain with a twenty-foot right of way, pavement eight feet wide of gravel or stone, used for two-way traffic in "deficient" condition.

Other Lots on Meetinghouse Road/Ellsworth Road

20. Lot 6 is located between Lot 5 and Lot 7/8. Frontage and access for Lot 6 is on a way known as Meetinghouse Road (a/k/a Ellsworth Road.) On August 7, 1997, the Board found, on an appeal of a decision by the Building Inspector regarding Lot 6, that the lot "meets the frontage requirements of Section 6.4.17 of the Rowley Zoning Bylaw in that it meets the frontage requirements of [G. L. c. 41, § 81L], being

'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 [Board] sufficient width, suitable grades and adequate construction to provide for vehicular traffic in relation to the proposed use of the land . . . .'"

* * * * *

The court reviews an appeal of a zoning board of appeals decision de novo. Pursuant to G. L. c. 40A, §17, the "court shall hear all the evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require." This involves a "'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G. L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) ("[i]n exercising its power of review, the court must find the facts de novo and give no weight to those the board has found."). After finding the facts de novo, the court's "function on appeal" is "to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purpose of the zoning law." Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court, however, gives deference to the local board's decision and may only overturn a decision if it is "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970), citing Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969); Britton, 59 Mass. App. Ct. at 72. If the court determines the facts support any rational basis to affirm the board's decision, the decision must stand. Gulf Oil Corp., 355 Mass. 275 .

I. The Board's Decision Was Not Arbitrary or Capricious, Nor Was It Legally Untenable

The Board affirmed the Building Inspector's denial of Plaintiffs' applications for the building permits based on its determination that the lots in question lacked frontage, as that term is defined in the Bylaw. Under the Bylaw, a way which qualifies for frontage under the Subdivision Control Law also qualifies for frontage for zoning purposes.

General Laws c. 41, § 81L defines ways that qualify for frontage within the meaning of the Subdivision Control Law as one or more of the following:

"(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."

Because the Board found the way abutting Plaintiffs' Lots satisfied none of the above criteria, it upheld the Building Inspector's denials. This determination was not arbitrary or capricious, nor was it legally untenable.

a. The Relevant Section of Meetinghouse Road is Not A Public Way

The first approved category of way under G. L. c. 41, § 81L is a public way, or way that a city or town clerk certifies is maintained and used as a public way. Plaintiffs, as the parties contending a particular way is public, carry the burden of proof. Rivers v. Town of Warwick, 37 Mass. App. Ct. 593 , 595 (1994). A way becomes public 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 . . . coupled with . . . acceptance by the public." Moncy v. Planning Bd. of Scituate, 50 Mass. App. Ct. 715 , 716 (2001); Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83–84 (1979).

Plaintiffs claim the relevant section of Meetinghouse Road, or the Disputed Way, became public through a laying out. They contend the Disputed Way is part of the 1772 Way. Several historical Town documents were entered in evidence, including minutes of town meetings held in 1771 and 1772. [Note 11] Specifically, Plaintiffs point to a May 14, 1772 Town Meeting in which they allege part of the Disputed Way was accepted as a public way. The minutes of that meeting read, in relevant part, "[t]he return of a Way as laid out by the Selectmen for the year 1770, which Way consisted of two parts . . . The first part of said Way was not accepted. The second part of said Way by a Vote was accepted and ordered to be recorded . . . ." A metes and bounds description of the accepted section followed.

This metes and bounds description, however, does not match the metes and bounds descriptions in the several plans admitted in evidence, particularly the plan to which Plaintiffs directed most of their testimony, and on which they rely. The Plan, titled "Title Insurance Plan of Land in Rowley, Prepared for Wilson Pond Realty Trust," is dated November 6, 1987, and was prepared by Hancock Survey Associates (Insurance Plan). [Note 12] Plaintiffs' expert created a "working plan" in which he overlaid the location of the 1772 Way on the surveyed location of the existing way from Newbury Road to Leslie Road. He did not include the metes and bounds calls he used to locate the 1772 Way, but used computer software and incorporated his own adjustments to produce, in his opinion, the appropriate overlay. He admitted he did not know whether the layout calculations for the 1772 Way were based on true north or magnetic north, and his opinion did not take into account the possible discrepancies that would have been apparent had that information been considered. Coupled with the fact that none of the monuments referenced in the description of the 1772 were found on the ground, this court was not persuaded that the current location of the Disputed Way is within the layout of the1772 Way.

Additionally, Defendants point to another evidentiary gap regarding the Disputed Way in support of their argument Plaintiffs have failed to carry their burden. A portion of the 1772 Way was discontinued in 1828, discussed in a "legal meeting" held by the Town on November 3, 1828. [Note 13] It appears that at this meeting the Town voted that "so much of the road named in [Art.2] . . . be discontinued as a town road[.]" While the description of the section of the road to be discontinued tracks a description of a section of the 1772 Way, it is undetermined what section was not discontinued and remained a public way. There was no testimony, and no plans, entered in evidence identifying the location of the discontinued section. Even if the section of the way that was discontinued could be identified, a discontinuance does not signify the remaining portion of the way is automatically deemed a public way. See Rivers, 37 Mass. App.Ct. at 595 (stating that a vote of discontinuance permitted an inference that a road was a public way, but did not compel such inference.)

Plaintiffs use the Disputed Way to access their Property, and other members of the public occasionally use it as well. Plaintiffs claim this use is evidence of the Disputed Way's "acceptance" as a public way by the Town in 1772, [Note 14] and point to deeds and other evidence describing certain boundaries as a "town road." Plaintiff also point to a letter signed by the Rowley Town Clerk, dated September 26, 1995, in which the clerk states "Ellsworth Road is a public right of way under Chapter 81, being a dirt way of .37 miles." [Note 15]

However, none of this evidence is sufficient to prove the Disputed Way is a public way. While "use by the public has some tendency to show acceptance, 'mere use by the public is not sufficient.'" Newburyport Redev. Auth. v. Commonwealth, 9 Mass. App. Ct. 206 , 227 (1979), citing Hayden v. Stone, 112 Mass. 346 , 350 (1873). Also, referencing a boundary as a "town road" does not automatically establish that said road is a public way, or a way that has been accepted by the Town. Rivers, 37 Mass. App. Ct. at 196; see also Fenn, 7 Mass. Ap. Ct. at 85–86. Finally, the September 26th letter from the Town Clerk was not a certification that the Disputed Way was a public way, pursuant to G. L. c. 233, § 79F. [Note 16] Instead, the letter only states that Ellsworth Road is a public right of way, citing to a different and distinct chapter of the General Laws, which deals with state highways, which is inapplicable. Additionally, the Town Clerk does not address directly the portion of Ellsworth Road that constitutes the Disputed Way, as requested by Plaintiffs. In any event, the weight of the evidence leads this court to a different conclusion.

II. The Disputed Way Is Not Shown On A Plan Approved And Endorsed In Accordance With the Subdivision Control Law, And Was Not A Way In Existence When The Subdivision Control Law Became Effective

General Laws c. 41, § 81L provides two other types of ways that qualify for frontage under the Subdivision Control Law: ways shown on a plan approved and endorsed in accordance with the Subdivision Control Law, and ways 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 . . . ." Plaintiffs do not allege – and have produced no evidence – that the Disputed Way falls within either of these two remaining categories, and the court finds that it does not.

Additionally, Defendants argue Town emergency vehicles cannot safely access Plaintiffs' Lots from Leslie Road using the Disputed Way, and that the larger emergency vehicles cannot access it at all. [Note 17] Such conclusion was confirmed by this court's view. If access to a lot is "illusory," a planning board may withhold its "approval not required" endorsement. Ball v. Planning Bd. of Leverett, 58 Mass. App. Ct. 513 , 517 (2003), citing Sturdy v. Planning Bd. of Hingham, 32 Mass. App. Ct. 72 (1992).

Conclusion

Plaintiffs failed to carry their burden of proof that the Disputed Way meets the requirements for frontage under the Bylaw. Accordingly, the Board's affirmance of the Building Inspector's denial of Plaintiffs' building permit applications was not legally untenable, nor was it arbitrary or capricious. The Board's Decision is AFFIRMED, and Plaintiffs' complaint is DISMISSED.

Judgment to enter accordingly.