RICHARD A. BAKER, JR., v. TOWN OF WEST NEWBURY, WEST NEWBURY PLANNING BOARD, JOHN P. GORMAN, and GORMAN HOMES LLC.

The plaintiff, Richard A. Baker, Jr., filed this action for review in the nature of certiorari pursuant to G. L. c. 249, § 4, challenging the West Newbury Planning Board's (the "Board") endorsement of a plan as Approval Not Required ("ANR") under the subdivision control law pursuant to G. L. c. 41, § 81P, for property located at Middle Street and Archelaus Hill Road in West Newbury (the "Property"). Intervenor-Defendant John P. Gorman owns the Property for which defendant Gorman Homes LLC (collectively, the "Developer") submitted the application for the ANR plan. [Note 1] Baker, an abutter to the Property, alleges in his complaint that access to two of the lots created by the ANR plan is illusory, because existing wetlands along the frontages of both lots and long, steep slopes preclude adequate access from Middle Street.

In accordance with Land Court Standing Order 2-06, the municipal defendants filed the Administrative Record of the Board's proceedings, and the court subsequently allowed the plaintiff's motion to supplement the Administrative Record with a transcript of the Board's March 21, 2017 and May 2, 2017 hearings on this matter. The court held a case management conference on September 6, 2017; subsequently, the Board endorsed a second ANR plan for the Property, submitted by the Developer, which was not appealed. On November 15, 2017, at the hearing on the Developer's Motion to Intervene, the Developer stipulated that it would not go forward with any applications for building permits for the lots in dispute in this case, even as shown on the second ANR plan, except for one lot the parties stipulated was not involved in the present dispute. [Note 2] On January 31, 2018, Baker and the Developer cross-moved for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c). The court held a hearing on the cross-motions on March 28, 2018.

For the reasons set forth below, Baker's motion for judgment on the pleadings is ALLOWED, the Developer's cross-motion for judgment on the pleadings is DENIED, and judgment will enter annulling the Board's endorsement of the ANR plan for the Property.

FACTS

Accepting, for the purposes of these Mass. R. Civ. P. 12(c), motions for judgment on the pleadings, the well-pleaded facts in the Complaint, along with the documents referred to in the Complaint, and the facts shown in the Administrative Record filed by the Board, the court finds the following facts:

The Lots

1. On June 15, 2016, the Developer acquired the Property, which consisted of two contiguous lots, identified as Lot 20 on Assessors Map R-22 and located on Middle Street in West Newbury, and Lot 74 on Assessors Map R-15, located on Archelaus Hill Road.

2. Baker owns and resides at 288 Middle Street, which, except for its frontage on Middle Street, is surrounded on its remaining three sides by the Property.

3. On March 13, 2017, the Developer submitted an ANR plan, prepared by Cammett Engineering, dated March 10, 2017, (later dated and revised through March 21, 2017, and resubmitted to the Board on April 26, 2017) (the "Plan") for the Property to the Board for endorsement. [Note 3] The Plan shows four lots to be carved out of the two existing lots. Lots 1 and 2 on the Plan front on Archelaus Hill Road and do not abut Baker's property. [Note 4] Lot 3 fronts on both Archelaus Hill Road and Middle Street, and abuts the northern and western boundaries of Baker's property. Lot 4 fronts on Middle Street and abuts the southern boundary of Baker's property.

4. The Property is located in the Residential B zoning district under the West Newbury Zoning Bylaw (the "Bylaw"), which requires a minimum 200 feet of frontage. According to the Plan, Lots 1 and 2 each have 200.05 feet of frontage on Archelaus Hill Road, Lot 3 has 153.71 feet of frontage on Archelaus Hill Road and 392.06 feet of frontage on Middle Street, and Lot 4 has 205 feet of frontage on Middle Street.

5. The Middle Street frontages for Lots 3 and 4 are encumbered by wetlands that begin at the street line of Middle Street and run the entire length of the frontages. The wetlands on Lot 3 run to a depth into the lot of approximately 30 to 40 feet near Lot 3's southern border with Baker's property and then heading north gradually increase to a depth into the lot of approximately 200 feet at Lot 3's northern boundary line. The wetlands on Lot 4 are more extensive at the frontage and cover the width of Lot 4 from Middle Street to a depth into the lot of approximately 200 feet.

The Bylaw

6. Section 6.A.9 of the Bylaw provides:

"Frontage must provide access to the lot from the right of way counted for frontage unless otherwise approved by the Planning Board on a Definitive Plan submitted in accord with Chapter 41, General Laws or approved by the Planning Board in the same manner as a Definitive Plan. When a lot or lots has a minimum required frontage pursuant to the West Newbury Zoning Bylaw (or relief from such) on a street and there are no physical impediments for a vehicle to physically pass over the legal frontage on the lot, the Planning Board may determine that there is adequate access. A valid Order of Conditions pursuant to MGL Ch. 131 from the Conservation Commission allowing the crossing of a wetland to access a lot is sufficient for the Board to make this finding."

The Board's March 21, 2017 Meeting

7. On March 21, 2017, the Developer's application for endorsement of the Plan appeared on the Board's meeting agenda. Representatives from Cammett Engineering ("Cammett"), retained by the Developer, presented the Plan to the Board.

8. The Board expressed concern about the need for wetlands crossings to access Lots 3 and 4 from Middle Street, and also noted the challenging slopes on Lot 3, which would make access difficult. [Note 5] Emily Fredette of Cammet admitted that some slopes on Lot 3 exceed 20%. [Note 6] Bob Smith of Cammett acknowledged that to cross the wetlands areas ". . . we have to show the [West Newbury] Conservation Commission (the "Commission") that we can. Yes. And that [the Commission] we haven't gone before yet." [Note 7]

9. Members of the Board repeatedly expressed reluctance to endorse the Plan without knowing whether the Commission would require the Developer to access Lots 3 and 4 from a different location. [Note 8] Referencing the Bylaw, Board member Murphey stated, "[a]nd I think we should follow our guidelines in the Zoning Bylaw that says we get that opinion." [Note 9]

10. The Board suggested that the Developer obtain an order of conditions from the Commission before proceeding in front of the Board. [Note 10] John Gorman, who attended the meeting, strongly disagreed that he was required to seek any relief from the Commission, stating "I don't have to go to the ConCom." [Note 11]

11. Baker addressed the Board and expressed his opinion that based on the topography of Lot 3, building a driveway would be impossible, and that only an all-wheel drive vehicle would be able to traverse the slopes. Baker also noted the wetlands on Lots 3 and 4, and stated his belief that the Board should not endorse the Plan because the frontage is illusory.

12. The Board repeatedly expressed doubt as to the adequate access to Lots 3 and 4 from Middle Street, whether due to the existence of wetlands or extreme topography, and emphasized that the Developer needed to prove the existence of adequate access to Lots 3 and 4 from Middle Street. The Developer then informed the Board that it desired to withdraw the Plan without prejudice. The Board voted to allow the withdrawal.

Subsequent Proceedings

13. In a letter addressed to the Board and dated April 12, 2017, Commission agent Jay Smith informed the Board that he reviewed the Developer's plan and that as to Lot 3, "[t]he construction of a driveway to provide access to buildable upland on lot 3 is feasible." Regarding Lot 4, Smith wrote that "[i]t is questionable as to whether the Con Com would approve Lot 4 with access from Middle Street. The Massachusetts Wetlands Protection Act allows access to any upland over a wetland only if there is no other practical alternative." Smith further provided that disturbance of wetlands requires a notice of intent to be filed and approved by both the Commission and the Massachusetts Department of Environmental Protection ("DEP"), and that the Commission would "review[] the entire lots for access through uplands rather than having wetlands crossings."

14. Smith's letter included an attachment of the Executive Office of Energy and Environmental Affairs' Wetlands Policy 88-2: Access Roadways, an interpretation of the limited project provisions of 310 Code Mass. Regs. § 10.53(3), and which provides in relevant part:

"The issuing authority is not required to give approval of all projects filed under the provision, but should examine the facts and determine whether the project qualifies as a limited project.

. . .

1) A project satisfies the general requirements of a limited project roadway, if the issuing authority determines no reasonable alternative means of access from a public way to uplands of the same owner is available.

. . .

2) Even if the general requirements of the regulation are met as described in paragraph 1 above, the issuing authority may deny limited project status for certain work."

15. On April 24, 2017, Planning Administrator Leah Zambernardi sent a memorandum to the Commission stating that the Board "seeks feedback from the Conservation Commission on the practicality of a wetlands crossing from Middle Street to the buildable portion of proposed Lot 4." Zambernardi attached to the memorandum a copy of the Plan and a copy of Jay Smith's April 12, 2017 letter.

16. On April 26, 2017, the Developer resubmitted its application for the Plan, with supplemental materials including an Existing Conditions plan for the Property and a "Sketch of Driveway Access to Buildable Upland for the Property," dated April 25, 2017 (the "Sketch Plan"). The purpose of submitting the Sketch Plan was to demonstrate to the Board the method proposed by the Developer to access each of Lots 3 and 4 and to demonstrate the feasibility of the proposed access to each lot.

17. The Sketch Plan depicts a driveway crossing the wetlands and slope running adjacent to the northern boundary line of Lot 4 where it abuts the southern boundary of Baker's property, for approximately 400 feet. For most of its length, the driveway on Lot 4 is depicted with a finish grade from four to six feet above existing grade, supported by retaining walls on both sides of the driveway for about three hundred feet, then transitioning to steep slopes on both sides for about the last one hundred feet at the top of the hill.

18. The Sketch Plan depicts a driveway crossing the wetlands and slope on Lot 3 running along the southern boundary of Lot 3 where it abuts the northern boundary of Baker's property. This driveway and its retaining wall run along the boundary with Baker's property for about 180 feet before turning north into Lot 3. The construction of this driveway requires steep cuts into the existing grade, with the top of the slope cut into the existing terrain along Baker's boundary as much as eight feet above the finish grade of the driveway. The Plan provides no detail as to how the slope created by this cut will be supported or as to how it will be constructed so as not to cause the erosion of Baker's adjacent land at the top of the cut.

The Board's May 2, 2017 Meeting

19. On May 2, 2017, the Board discussed the Developer's resubmitted Plan and again raised the question of adequate access to Lots 3 and 4. The Board had not yet received the letter it requested from the Commission and determined that it would wait until a further Board meeting to discuss the Plan. [Note 12] Before moving on to other matters, the Board briefly questioned whether there is a physical impediment to accessing Lots 3 and 4:

"Mr. Cook: Let me ask you and the other Board members. Is there a physical impediment for a vehicle to physically pass over the legal frontage onto the lot?

. . .

Ms. Bardeen: There's a pretty deep ditch and pretty wet.

. . .

Mr. Cook: I think your front axle may be knee-deep in muck before you got the rear axle over, so maybe that is physical impediment. I don't know. See, I look at this and I think, well, you could probably pass over the line. You might not get very far after you did it.

. . .

Mr. Cook: Yeah. You know, if I look at this again the actual front of the lot here is way off the edge of the pavement, and the wetlands are already there. So you could argue that here you can't even… a vehicle right now couldn't get to the frontage without sinking an axle." [Note 13]

20. In an email to the Board dated May 12, 2017, Zambernardi wrote that Lots 1 and 2 provide alternate access to Lots 3 and 4 and would not require wetlands crossings, and that "[i]n cases like this, the Conservation Commission would likely require that the alternate access be utilized." The email provided Zambernardi's recommendation that "[f]rom a permitting perspective, the Conservation Commission would likely reject access from Middle Street in favor of access from Gorman's property fronting Archelaus Hill Road."

21. In a letter to the Board dated May 15, 2017, the Commission stated, in part:

"We discussed the crossings but cannot give you an opinion as to whether the driveway crossings are feasible until a notice of intent has been filed and a public hearing has been held.

Consistent with the Wetlands Protection Act and D.E.P. regulations, the Commission seeks to first avoid, then to minimize, and then to mitigate impacts on the wetlands. We can tell you that a limited project under 310 CMR 10.53:(3)(e) for construction of a new driveway applies only 'where reasonable alternative means of access from a public way to an upland area of the same owner is unavailable,' and that 'reasonable alternative means 'may include any previously or currently available alternatives such as realignment or reconfiguration of the project' and that the Commission 'may require the applicant to utilize access over an adjacent parcel of land currently or formerly owned by the applicant, or in which the applicant has or can obtain an ownership interest.'

We can also tell you that the Commission has the discretion under the regulations governing bordering vegetated wetlands . . . to allow the loss of up to 5,000 square feet if appropriate replication is provided . . . ."

The Board's May 16, 2017 Meeting

22. On May 16, 2017, the Board held a meeting at which it again discussed the resubmitted Plan. A member of the Board read aloud the May 15, 2017 letter from the Commission at the meeting.

23. Robert Blanchette, a civil engineer employed at Cammett, presented the Board with the Sketch Plan and discussed the potential driveway access to the buildable portions of Lots 3 and 4. Blanchette stated that approximately 3,000 square feet of wetlands would be disturbed on Lot 4, and approximately 800 square feet of wetlands would be disturbed on Lot 3. The disturbance estimates presented by Blanchette are not borne out by the Sketch Plan itself, which shows more than 5,000 feet of disturbance on Lot 4. [Note 14]

24. When asked how the Developer would provide access to Lots 3 and 4 if the Commission required the Developer to find alternate access to those lots, Blanchette responded, "[w]ell, potentially alternate access may be from Archelaus Hill Road." [Note 15]

25. At the meeting, Zambernardi shared the May 12, 2017 pre-meeting report in which she recommended that "[f]rom an engineering perspective, constructing a wetlands crossing on Lot 3 is practical and feasible. From a permitting perspective, the ConCom may likely reject access from Middle Street in favor of access from Gorman's property fronting Archelaus Hill Road." [Note 16]

26. The Board, apparently surmising that the two required wetlands crossings are possible, voted 5-0 to endorse the Plan, and filed its decision with the town clerk on May 17, 2017.

27. On July 6, 2017, Baker timely filed the instant action seeking certiorari review of the Board's endorsement of the Plan.

DISCUSSION

Standard of Review

An action for certiorari review is brought to "correct errors in proceedings which are not according to the course of common law, and which proceedings are not otherwise reviewable by motion or by appeal." G. L. c. 249, § 4. In a certiorari review, the court is limited to correcting "substantial errors of law apparent on the record adversely affecting material rights." FIC Homes of Blackstone, Inc. v. Conservation Comm'n of Blackstone, 41 Mass. App. Ct. 681 , 684 (1996). Therefore, the review is not de novo, but instead is "limited to what is contained in the record of the proceedings below." Police Comm'r of Boston v. Robinson, 47 Mass. App. Ct. 767 , 770 (1999). Furthermore, the standard of review is based on the "nature of the action sought to be reviewed." Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37 , 49 (1977). A local board may not act for reasons that are "'extraneous to the prescriptions of the regulatory scheme, but are related, rather, to an ad hoc agenda.'" Fieldstone Meadows Dev. Corp. v. Conservation Comm'n of Andover, 62 Mass. App. Ct. 265 , 267 (2004), quoting Fafard v. Conservation Comm'n of Reading, 41 Mass. App. Ct. 565 , 568 (1996). When a planning board has acted in such a manner with respect to a plan sought to be endorsed pursuant to G. L. c. 41, § 81P, the plaintiff seeking to annul the board's endorsement may seek "correction of an error 'in proceedings which are not according to the course of the common law' and are not 'otherwise reviewable by motion or by appeal.'" Stefanick v. Planning Bd. of Uxbridge, 39 Mass. App. Ct. 418 , 424 (1995), quoting G. L. c. 249, § 4.

The Subdivision Control Law

General Laws c. 41, § 81P, provides that anyone who plans to divide property in a city or town where the subdivision control law is in effect and "believes that his plan does not require approval under the subdivision control law, may submit his plan to the planning board . . . and, if the board finds that the plan does not require such approval, it shall forthwith, without a public hearing, endorse thereon . . . the words "approval under the subdivision control law not required . . . . Such endorsement shall not be withheld unless such plan shows a subdivision." Section 81L, the definitional section of the subdivision control law, "expressly excepts from the term 'subdivision' a division of a tract of land into two or more lots if "every lot within the tract so divided has frontage on … a public way" and the frontage is sufficient under the controlling town by-law." Corcoran v. Planning Bd. of Sudbury, 406 Mass. 248 , 249 (1989). The subdivision control law provides an avenue of appeal for persons aggrieved by a board's decision concerning a definitive plan, which is set forth in § 81BB. Likewise, § 81P dictates that a party that believes it is entitled to an endorsement of an ANR plan may appeal a board's denial utilizing the appeal process set forth in § 81BB. See Stefanick v. Planning Bd. of Uxbridge, supra, 39 Mass. App. Ct. at 420-421. "If, however, the planning board determines that a plan does not disclose a subdivision and makes a § 81P endorsement on the plan, there are no provisions for notice to interested persons, a hearing (indeed, the statute provides that the planning board shall act without a public hearing), or for any filing of the board's action with the town or city clerk." Id. at 421-422. As such, review of a § 81P endorsement must be brought as an action for certiorari review pursuant to G. L. c. 249, § 4. Id. at 424, rev. denied 422 Mass. 1104 (1996).

Standing

The Developer has challenged Baker's standing to seek certiorari review of the Board's ANR endorsement.

"The requisite elements for availability of certiorari are (1) a judicial or quasi judicial proceeding; (2) a lack of all other reasonably adequate remedies; and (3) a substantial injury or injustice arising from the proceeding under review." Cumberland Farms, Inc. v. Planning Bd. of Bourne, 56 Mass. App. Ct. 605 , 607 (2002), quoting Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79 , 83 (1968). As to the third element, the injury alleged must be "to a protected legal interest," Friedman v. Conservation Comm'n of Edgartown, 62 Mass. App. Ct. 539 , 543 (2004); and it must be substantial in nature, and more than speculative. See Ginther v. Commissioner of Ins., 427 Mass. 319 , 323 (1998) ("Injuries that are speculative, remote, and indirect are insufficient to confer standing. Not every person whose interests might conceivably be adversely affected is entitled to [judicial] review." (citation omitted)); Murray v. Justices of Second Dist. Court of Eastern Middlesex, 389 Mass. 508 , 511 (1983) (in certiorari action "court will exercise its discretion to correct only those errors which have resulted in manifest injustice to the plaintiff"); Fiske v. Selectmen of Hopkinton, 354 Mass. 269 (1968) (petitioners lacked standing for certiorari review where allegations of substantial injury speculative); Pickford v. Lynn, 98 Mass. 491 (1868) (certiorari petition is "addressed to the sound discretion of the court; and, even when formal errors exist, the writ will be refused if no wrong or substantial injury is occasioned thereby to the petitioner"); Police Dep't of Fall River v. Commissioners of Civil Serv., 5 Mass. App. Ct. 896 (1977) (certiorari complaint properly dismissed where it failed to allege errors of law substantially harming plaintiff's rights). "From an early day it has been an established principle in this Commonwealth that only persons who have themselves suffered, or who are in danger of suffering, legal harm can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of the government." Perella v. Massachusetts Turnpike Auth., 55 Mass. App. Ct. 537 , 539 (2002), quoting Tax Equity Alliance for Mass. v. Commissioner of Rev., 423 Mass. 708 , 715 (1996). "It is the general rule that resort cannot be had to certiorari unless the action of the tribunal of which review is sought has resulted in substantial injury or manifest injustice to the petitioner." Fiske v. Selectmen of Hopkinton, 354 Mass. 269 , 271 (1968). Where, as here, the petitioner seeking annulment of the decision of a local tribunal is an abutter to the land that was the subject of an approval, "requirements for abutters seeking to establish and retain standing are formidable." Friedman v. Conservation Comm'n of Edgartown, supra, 62 Mass. App. Ct. at 544.

Baker argues that as an abutter to Lots 3 and 4 he has a rebuttable presumption of standing to challenge the ANR endorsement. In support of that contention, Baker cites a line of cases analyzing the aggrieved person status applicable to G. L. c. 40A, § 17 zoning appeals. He also claims aggrieved person status equivalent to that of persons aggrieved by the approval of a definitive subdivision plan, relying on Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 (2009), and Rattner v. Planning Bd. of W. Tisbury, 45 Mass. App. Ct. 8 (1998).

In Rattner, the plaintiff appealed the approval of a subdivision plan pursuant to G. L. c. 41, § 81BB. Rattner, supra at 9. The Appeals Court, noting that few cases defined "aggrieved person" under the subdivision control law, looked to zoning law cases for guidance and determined that the plaintiff had the same rebuttable presumption of standing granted to abutters in G. L. c. 40A, § 17 appeals. Id. at 10. Likewise, in Krafchuk, plaintiffs abutting land that was the subject of a definitive subdivision plan appealed the planning board's approval pursuant to § 81BB. 453 Mass. at 518. Determining that the plaintiffs had standing, the SJC held that "[a]butters entitled to notice of planning board hearings, pursuant to G. L. c. 41, § 81T, enjoy a rebuttable presumption that they are persons aggrieved." 453 Mass. at 522. In reaching that determination the SJC, noting the similarities in purpose between G. L. c. 40A, and the subdivision control law, was "guided in our determination of the meaning of "person aggrieved" in the context of the subdivision control law by our case law involving zoning, i.e., appeals pursuant to G. L. c. 40A, § 17." Krafchuk v. Planning Bd. of Ipswich, supra, 453 Mass. at 522 n.12, citing Rattner v. Planning Bd. of W. Tisbury, supra, 45 Mass. App. Ct. at 10.

That there is a rebuttable presumption for certain parties appealing pursuant to § 81BB, akin to that in G. L. c. 40A, § 17A appeals, does not lead to the result that challengers of an ANR endorsement are entitled to the same rebuttable presumption, where G. L. c. 41, § 81P, contains no provision for notice to "parties in interest." If a board reviewing a plan pursuant to § 81P determines that approval is not required, it is to endorse the plan "without a public hearing." G. L. c. 41, § 81P. The recognition of persons aggrieved in the two statutory schemes is tied to the entitlement of notice. This does not leave persons who believe they have suffered an injury through an ANR endorsement without an avenue for judicial review; it simply means that persons challenging a § 81P endorsement are not entitled to a rebuttable presumption of standing and must make the requisite showing of substantial harm or manifest injustice under the third element of an action for certiorari review pursuant to G. L. c. 249, § 4, without the benefit of a presumption. See Stefanick v. Planning Bd. of Uxbridge, supra, 39 Mass. App. Ct. at 424 (challenge to § 81P endorsement to be brought pursuant to G. L. c. 249, § 4).

Notwithstanding the formidable hurdles faced by an abutter seeking to establish his standing, Baker's claim of aggrievement is supported by material in the Administrative Record. Baker identifies two grounds for his claims of aggrievement. He claims that the construction of the proposed driveways will direct storm water runoff onto his property in inordinate amounts, thereby causing damage to his property, and he claims that the proposed driveway and home construction on the adjacent lots will affect wildlife in a way that will cause injury on his property.

Specifically, Baker's first claim of aggrievement is that the construction of the driveway on Lot 4 as proposed by the Developer on the Sketch Plan will create a barrier to the natural flowage of water that will result in ponding of water on his property. This claim is amply supported by the Administrative Record. The Sketch Plan shows a driveway proposed abutting or within just a few feet of Baker's property line for a distance of over 400 feet. For about the first three hundred feet, 280 feet of that distance through delineated wetlands, the driveway is proposed to be four to six feet above existing grade, supported by a retaining wall directly adjacent to Baker's property boundary. For the final 100 feet, the retaining wall would transition to a steep slope. [Note 17] As the existing slope in the vicinity of the boundary between the two properties, as depicted by the two-foot contours on the Sketch Plan, runs toward the southeast, that is, away from Baker's property and toward the Developer's Lot 4, the newly introduced retaining wall, serving, in effect, as a dam, will keep water on Baker's property that would otherwise run down the slope onto Lot 4. [Note 18] Furthermore, the slope supporting the higher elevations of the driveway will direct additional runoff toward Baker's property. The Developer did not rebut this evidence in the record with any evidence of provisions made or to be made for the mitigation of storm water runoff that would be redirected onto Baker's property by the construction of the retaining wall supporting the raised driveway.

Notwithstanding that the Developer must obtain approval from the Conservation Commission, in the form of two orders of conditions, in order to build the proposed driveways, and that such approval may well be denied, the claimed aggrievement is neither speculative nor hypothetical. The Developer proposed the driveways as shown on the Sketch Plan to demonstrate to the Board how he would address the Board's concerns that the frontage for the two lots was illusory and that the lots were not truly accessible from their frontage. He must live with his proposed solution, and would be estopped from claiming that his proposed solution cannot provide the basis of the plaintiff's standing because it is either speculative or hypothetical to suggest that the plaintiff would be harmed by what the Developer has said he will build to access his lots. Compare Sweenie v. A. L. Prime Energy Consultants, Inc., 451 Mass. 539 , 543 (2008) (standing could not be based on speculation that new fuel storage tanks might leak in the future); Bristol County Water Authority v. Swansea Planning Bd., 14 LCR 561 (2006) (Piper, J.) (plaintiff had no standing to challenge ANR endorsement where, unlike the present case, there was not yet any proposal to construct any structures on the ANR lots).

The second claimed ground of aggrievement articulated by Baker is that construction on Lots 3 and 4 will disturb wildlife on those lots, displacing animals so as to cause them to disturb the uses on Baker's property. Unlike Baker's claims with respect to water problems that will be caused by the construction of the driveways, the wildlife-related claims are not supported by evidence in the Administrative Record or by other competent evidence, and are in any event entirely speculative, even assuming that the Developer will ultimately obtain orders of conditions and building permits for construction on the two lots. See Sweenie v. A. L. Prime Energy Consultants, Inc., supra.

Merits

Having determined that Baker has standing to assert his certiorari claim, the court now must determine whether the Board's decision was based on "substantial errors of law apparent on the record . . . ." FIC Homes of Blackstone, Inc. v. Conservation Comm'n of Blackstone, supra, 41 Mass. App. Ct. at 684. Baker contends that the access from Middle Street to Lots 3 and 4 is illusory based on the presence of wetlands extending from Middle Street into each lot. He argues that it was error for the Board to endorse the Plan where the Developer did not obtain an order of conditions from the Commission allowing the construction of driveways through the wetlands, despite the Bylaw provision in Section 6.A.9 that the Board can determine adequate access exists if an order of conditions has issued allowing a wetlands crossing.

The purpose of the subdivision control law is to "protect[] the safety, convenience and welfare" of residents through regulation of "the laying out and construction of ways in subdivisions providing access to the several lots therein." G. L. c. 41, § 81M. A planning board's power under the subdivision control law is "exercised with due regard for the provision of adequate access to all of the lots in a subdivision by ways that will be safe and convenient for travel." Id. "[T]he frontage exemption of § 81L should be interpreted in light of the over-all purpose of the subdivision control law." Corcoran v. Planning Bd. of Sudbury, supra, 406 Mass. at 250, citing Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 , 807 (1978). An ANR endorsement is appropriate only if "the vital access is reasonably guaranteed." Gifford v. Planning Bd. of Nantucket, supra. "Distinct physical impediments to threshold access or extreme lot configurations" will render access illusory. Corcoran v. Planning Bd. of Sudbury, supra at 251.

Case law provides examples of physical impediments to accessing a lot from a public way that will render access illusory. In Poulos v. Planning Bd. of Braintree, 413 Mass. 359 , 359- 360 (1992), the plaintiff submitted a plan to the planning board seeking an ANR endorsement to divide his property into twelve lots. A guardrail installed by the State Department of Public Works ("DPW") ran along the frontage of eight of the lots due to a steep, downward slope located between the public way and portions of the plaintiff's property. Id. at 360-361. The plaintiff received an order of conditions from the Braintree conservation commission to fill the property to regrade the slope, after which the DPW (this was a county road) could remove the guardrail. Id. The planning board denied the plaintiff's ANR plan, on the basis of "lack of definition of proper access." Id. The SJC concluded that, reading §§ 81L & 81M together, the plaintiff was not entitled to ANR endorsement "in the absence of present adequate access from the public way to each of the plaintiff's lots." (emphasis in original) Id. at 362. See also McCarthy v. Planning Bd. of Edgartown, 381 Mass. 86 , 87-88 (1980) (access not adequate where lots had requisite frontage but regulation of Martha's Vineyard Commission only allowed vehicular access at 1,000-foot intervals); Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144 , 151 (1983) (where lots fronted on paper street adequate access nonexistent); Hrenchuk v. Planning Bd. of Walpole, 8 Mass. App. Ct. 949 (1979) (no adequate access where lots fronted on interstate highway and vehicles could not access highway from lots).

The existence of wetlands at the street line prohibiting present adequate access is likewise a physical impediment rendering access illusory. In Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394 (2000), eight of twelve lots on an ANR plan had wetlands at the front of the lot at the approach from the street. Although the plaintiff's engineer admitted at trial that it would be an "environmental disaster" to approach the lots from the street, the engineer said that access from the street was "theoretically possible." Id. at 400. The Appeals Court determined that the planning board acted within its authority in denying endorsement of the ANR plan because no way of access existed on the ground. Id. at 400. The Appeals Court distinguished the case from Corcoran, where the wetlands were interior to the lot and "did not present a physical barrier that rendered access to the three lots in question illusory." Gates v. Planning Bd. of Dighton, supra at 400, citing Corcoran v. Planning Bd. of Sudbury, supra, 406 Mass. at 251.

Turning to the case before the court, the Bylaw requires 200 feet of frontage on a public way in the Residential B district, and there is no dispute that Lots 3 and 4 each have the requisite lineal frontage on Middle Street. The issue is whether there is adequate access from Middle Street onto each lot. The Plan depicts wetlands on both lots that begin at the street and extend into the lots. As such, a vehicle cannot drive from Middle Street onto the lots absent approved wetlands crossings. The wetlands on the Developer's lots are distinctly different from interior wetlands, where present adequate access to a lot exists, but wetlands elsewhere on the lot affect the ability to build. See Corcoran v. Planning Bd. of Sudbury, supra, 406 Mass. at 251 (access not illusory where wetlands interior and not physical impediment to threshold access). The wetlands on Lots 3 and 4, present along the entire frontage of each lot from the street and extending well into the lots, serve as a physical impediment to vehicular access.

It is apparent that the meaning of "adequate access" was a point of contention with the Board. [Note 19] Section 6.A.9 of the Bylaw provides:

"Frontage must provide access to the lot from the right of way counted for frontage unless otherwise approved by the Planning Board on a Definitive Plan submitted in accord with Chapter 41, General Laws or approved by the Planning Board in the same manner as a Definitive Plan. When a lot or lots has a minimum required frontage pursuant to the West Newbury Zoning Bylaw (or relief from such) on a street and there are no physical impediments for a vehicle to physically pass over the legal frontage onto the lot, the Planning Board may determine that there is adequate access. A valid Order of Conditions pursuant to MGL Ch. 131 from the Conservation Commission allowing the crossing of a wetland to access a lot is sufficient for the Board to make this finding." (emphasis added).

At the first public meeting, the Board strongly suggested that the Developer seek an order of conditions from the Commission. [Note 20] The Board subsequently abandoned that position and sought the opinion of the Commission, after which the Board engaged in speculation as to whether the Commission would issue an order of conditions whenever the Developer saw fit to apply for such an order. The Commission explicitly stated in its letter to the Board that the Developer had not filed anything with the Commission and that it "cannot give [the Board] an opinion as to whether the driveway crossings are feasible until a notice of intent has been filed and a public hearing has been held." The letter proceeded to explain that the Commission "has the discretion . . . to allow the loss of up to 5,000 square feet" of wetlands (emphasis added). Further, both the Commission's letter and Commission Agent Smith's letter stated that any review would include seeking alternative means of access to the upland areas of the lots to avoid wetlands disturbance, and that such alternative means "may require the applicant to utilize access over an adjacent parcel of land currently or formerly owned by the applicant, or in which the applicant has, or can obtain, an ownership interest."

There is no guarantee that the Developer will receive the requisite order allowing the construction of wetlands crossings to access Lots 3 and 4. Unlike in Poulos, where the plaintiff actually had an order of conditions from the local conservation commission and the SJC determined that it was not enough, here the Developer has not even applied for such an order. The Board's determination that the Commission will "probably" grant a wetlands crossing was based on pure speculation, and this speculation was necessary only because the Board, ignoring the better instincts expressed by its members, acceded to the Developer's incorrect argument that he "was not required" to obtain an order of conditions before the Board could determine that Lots 3 and 4 had real, adequate access over the wetlands encumbering the entire length of frontage for both lots. The Bylaw explicitly requires that the determination whether there is adequate access over wetlands (that are not interior to the lot) is to be demonstrated only by presentation of an order of condition to the Board that has already been issued by the Commission. The Board, after initially indicating that it would adhere to this requirement, ultimately disregarded the requirements imposed on it and the Developer by the Bylaw.

In determining that no order of conditions was necessary to determine whether the Developer could provide adequate access across the wetlands on each lot, the Board misapplied the holding in Corcoran v. Planning Bd. of Sudbury, "[t]hat the use of the wetlands is, or must be, subject to the approval of other public agencies (G. L. c. 131, § 40) does not broaden the scope of the board's powers." 406 Mass. at 251-252. In Corcoran, all of the lots on the ANR plan had the requisite frontage requirements under the local bylaw, and "no physical impediments which affect access from the road to each lot . . . ." Id. at 249. The planning board conceded that the ANR plan met the "literal statutory requirements for an 'ANR' endorsement," but claimed that the wetlands prevented "practical access to buildable sites in the rear . . . ." Id. at 250. The SJC determined that the plaintiffs were entitled to endorsement of their ANR plan because "there is no question that the frontage provides adequate vehicular access to the lots. The presence of wetlands on the lots does not raise a question of access from the public way, but rather the extent to which interior wetlands can be used in connection with structures to be built on the lots." 406 Mass. at 251.

The Board ultimately determined that it could not require the Developer to receive an order of conditions from the Commission prior to applying for an ANR endorsement because the wetlands crossings fell under the jurisdiction of the Commission. However, in Corcoran the plaintiff had threshold access to the lots at issue and the board's denial of the ANR plan was related to interior wetlands at the rear of the lots and how the wetlands impacted the buildable portion of the lots. Id. at 250 (where board improperly focused on "judge's finding that not all of the lots can accommodate both a house and its accompanying septic system on dry areas between road and the wetlands"). In this case, Lots 3 and 4 do not have the threshold access that was present in Corcoran. The wetlands on Lots 3 and 4 are located directly at the frontage and border Middle Street for the entire length of the frontage, preventing adequate access.

"It is not a right of access, but rather actual access, that counts." (emphasis in original) Poulos, supra, 413 Mass. at 362. Here there is neither a right of access nor actual access. The Commission has the discretion to approve or deny the Developer's request for wetlands crossings. The Board received no indication from the Commission as to how it would rule on the Developer's proposed wetlands crossings (nor would a mere indication in a letter be adequate in any event). The Commission's letter unambiguously stated "[w]e cannot give you an opinion as to whether driveway crossings are feasible until a notice of intent has been filed and a public hearing has been held." It is not the province of the Board to speculate whether the Commission will grant a wetlands crossing. The result is that the Developer, absent the requisite order from the Commission, does not have present adequate access from Middle Street to Lots 3 and 4, and in fact, may not get access from Middle Street. It is abundantly clear from the record that the Board thought access to Lot 4 from Middle Street was unlikely, and that the Commission would require access from Archelaus Hill Road. Indeed, the Commission's letter and the submission from Commission agent Smith indicate that the Commission seeks to avoid wetlands crossings and that it considers as part of its review whether alternate means of access exist. This is the very nature of illusory frontage. Because wetlands located along the frontages of Lots 3 and 4 prevent threshold access from Middle Street, and the Developer did not possess an order of conditions from the Commission, as explicitly required by the Bylaw, the Board committed a substantial error of law by endorsing the Plan where the undisputed facts in the Administrative Record show that the Developer could demonstrate neither present physical access to the lots nor the right to cross the wetlands to obtain such access.

CONCLUSION

For the foregoing reasons, the plaintiff's motion for judgment on the pleadings is ALLOWED, and the defendants' cross-motion for judgment on the pleadings is DENIED.

Judgment will enter annulling the Board's endorsement of the Plan.