PAUL LePERE v. SALISBURY PLANNING BOARD and HELEN HOLDER, GINA PARK, DON EGAN, LOU MASIELLO, JOHN DOGGET and GIL MEDEIROS, as they are Members and Alternative Member of said Board.

Plaintiff Paul LePere (LePere), pursuant to G.L. c. 41, § 81BB, appealed the Town of Salisbury Planning Board's (the Board) denial of his request for endorsement of an approval-not-required (ANR) plan that sought to divide land at 107 Folly Mill Road in Salisbury, Massachusetts (the Locus). LePere contends that G.L. c. 41, § 81P, requires endorsement of the plan and seeks a determination that the denial exceeds the jurisdiction and/or authority of the Board. The Locus shown on the ANR plan is part of a larger property that straddles the Massachusetts-New Hampshire state line. The Locus is entirely in Massachusetts; the remaining land is entirely in New Hampshire. The Board found it appropriate to consider that the ANR plan would result in the New Hampshire parcel, not included in the plan, becoming landlocked, and denied endorsement based upon public safety and access concerns. LePere has moved for summary judgment. For the reasons set forth below, Plaintiff's Motion for Summary Judgment is allowed.

Procedural History

On August 15, 2017, LePere filed his Complaint naming as defendants the Board and John Dogget, Don Egan, Helen Holder, Lou Masiello, Gina Park, as members of the Board, and Gil Medeiros, as alternative member of the Board. The Complaint contained two counts: (I) G.L. c. 41, §81P, Requires Endorsement of the Plan; and (II) Jurisdiction of the Board was Exceeded. A case management conference was held on September 19, 2017.

The Plaintiff's Motion for Summary Judgment, Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment, Affidavit of Adam J. Costa, Esq., Statement of Material Facts (Pl.'s Facts), and Appendix were filed on April 2, 2018. The Defendants' Opposition to Plaintiff's Motion for Summary Judgment, Memorandum of Law in Support of Defendants' Opposition to Plaintiff's Motion for Summary Judgment, Affidavit of Melissa P. McCarthy, Esq., Statement of Material Facts included with a Statement of Additional Material Facts (Defs.' Facts), and Appendix (Defs.' App.) were filed on April 30, 2018. On May 16, 2018, the Reply to Defendants' Opposition to Plaintiff's Motion for Summary Judgment and Defendants' Additional Material Facts with Responses Thereto (Pl.'s Resp.) were filed. On May 22, 2018, the Plaintiff's Motion for Summary Judgment was heard and taken under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

The following facts are undisputed or admitted for the purpose of summary judgment.

1. Sandra Thurlow (Thurlow) is the owner-of-record of a large parcel consisting of land in Salisbury, Massachusetts and Seabrook, New Hampshire, by a deed dated March 7, 2011, and recorded with the Southern Essex District Registry of Deeds at Book 30306, Page 4395. Pl.'s Facts ¶ 3; Defs.' Facts ¶ 3; Defs.' App. Exh. C.

2. The Locus consists of the portion of this parcel located in Salisbury, with frontage on Folly Mill Road. The remainder of the parcel is located in Seabrook, New Hampshire (the Seabrook lot). On the Seabrook lot is a single family home that can only be accessed from Folly Mill Road through an "Existing Gravel Driveway" located on the Locus, in Salisbury. Pl.'s Facts ¶ 5; Defs.' Facts ¶¶ 5, 18; Pl.'s Resp. ¶ 18; Defs.' App. Exhs. C, H.

3. Folly Mill Road is a public way. Pl.'s Facts ¶ 7; Defs.' Facts ¶ 7.

4. The only access to the Seabrook lot from Folly Mill Road. Defs.' Facts ¶ 21; Pl.'s Resp. ¶ 21; Defs.' App. Exh. H.

5. A plan entitled "Plan of Land in Salisbury, MA Showing an Approval Not Required Subdivision at 103-105-109 Folly Mill Road," dated June 19, 2017, was prepared for Thurlow by Millenium Engineering, Inc. (Plan). The Plan shows the Locus—the portion of Thurlow's parcel in Salisbury—divided into three lots: Lot 1, Lot 2, and Lot 3. Each lot has frontage on Folly Mill Road. A copy of the Plan is attached as Exhibit A. Pl.'s Facts ¶¶ 1, 6; Def. Facts, ¶¶ 1, 6; Exh. B.

6. The "Existing Gravel Driveway," connecting the Seabrook lot to Folly Mill Road, is shown on the Plan as running through Lot 3. Defs.' Facts ¶ 21; Pl.'s Resp. ¶ 21; Defs.' App. Exh. H.

7. In a letter dated June 30, 2017, Thurlow granted express authorization to LePere to seek, pursuant to G.L. c. 41, § 81P, an ANR endorsement of the Plan. Pl.'s Facts, ¶¶ 2, 6; Defs.' Facts ¶¶ 2, 6; Defs.' App. Exhs. A-C, H.

8. The Locus is a part of the Medium-Density Residential (R-2) zoning district, per the Salisbury Zoning Bylaw (the Bylaw). Section 300-14 of the Bylaw requires 150 feet of minimum frontage in the R-2 district. Pl.'s Facts ¶ 8; Defs.' Facts ¶ 8; Defs.' App. Exh. D.

9. All the lots on the Plan meet the minimum frontage requirement. Lots 1 and 2 have 150.00 feet of frontage along Folly Mill Road. Lot 3 has 259.34 feet of frontage along Folly Mill Road. Pl.'s Facts ¶¶ 9-11; Defs.' Facts ¶¶ 9-11; Defs.' App. Exh. B.

10. All three lots have an area of at least 43,560 square feet or one acre, the minimum lot size in the R-2 zoning district. Pl.'s Facts ¶ 12; Defs.' Facts ¶ 12; Defs.' App. Exhs. B, D.

11. On July 6, 2017 LePere submitted a "Form A" application to the Board seeking ANR endorsement of the Plan (application). Pl.'s Facts ¶¶ 1, 4; Defs.' Facts ¶¶ 1, 4; Defs.' App. Exhs. A-B.

12. At its meeting of July 26, 2017, the Board voted 4-0 not to endorse the Plan as approval not required under the subdivision control law. On July 27, 2017, the Board filed its decision (Denial) finding that the Plan showed a subdivision requiring approval under the subdivision control law on the grounds that a safety issue would arise where endorsement of the plan would cause the Seabrook lot to lose direct access to Folly Mill Road. Defs.' App. Exhs. F, G.

Discussion

LePere appeals the Board's Denial pursuant to G.L. c. 41, § 81BB. The Denial refused ANR endorsement of the Plan dividing the Locus located in Salisbury. The Locus is bounded on the north by the state line between Salisbury and Seabrook, New Hampshire; the Seabrook lot is bounded on the south by the same portion of the state line. The Board found that access from Folly Mill Road to the single family home located on the Seabrook lot will be cut off by the Plan, landlocking the Seabrook lot. LePere contends that G.L. c. 41, § 81P, requires endorsement of the Plan and seeks a determination that the Denial exceeds the jurisdiction and/or authority of the Board. The Board contends that the Denial was a valid exercise of its authority based upon public safety and access concerns. The Board found it was appropriate to consider that the Plan would landlock the home on the Seabrook lot, and denied the Plan based on this lack of access. [Note 1]

A. Jurisdiction

This case turns on whether it was appropriate for the Board to consider how the division of the Locus, located in Massachusetts, would affect the Seabrook lot in New Hampshire. LePere argues that such consideration is inappropriate, because the Seabrook lot is not a part of the Locus, and is divided and separate from the Locus by virtue of the state line. Relying on this court's decision in Hayhurst v. Campbell, 15 LCR 407 (2007), LePere argues that including the Seabrook lot on the Plan would have been inappropriate as the Board does not have jurisdiction over land in New Hampshire and that such jurisdiction cannot be extended by virtue of proximity or commonality of ownership. The Board asserts that it was a valid exercise of its authority to deny the ANR endorsement where the Plan would result in land-locking an adjacent, developed, and occupied parcel.

In Hayhurst, and the trial decision in that action which preceded it, see 13 LCR 250 , the defendants' lot lacked the necessary frontage and lot width to qualify as a buildable lot in the Town of Dracut Massachusetts, owing to the fact that a significant portion of the parcel was situated in New Hampshire and that land outside of Massachusetts was not considered for the purposes of zoning compliance. Hayhurst, 15 LCR at 408-410. Throughout that action two variances granting relief for lot frontage and lot width were upheld by this court, in part because the hardship created by the unique shape of the property—a result of the location of the state boundary line—was determined not to have been self-created. Id. at 411-412. This court accepted that "[t]he creation of the oddly shaped parcel of land…was based on the location of the state boundary line rather than an arbitrary decision to split the property along such lines and resulted in two separate jurisdictions having control over the parcels." Id. at 411. While in Hayhurst the court was considering the validity of variances, the municipality's lack of jurisdiction over the portions of the subject land which was situated in New Hampshire was central to its decision.

Similar to Hayhurst, the land at issue in this action is situated along the state boundary line between Salisbury, Massachusetts and Seabrook, New Hampshire. This boundary was not created simply by a line delineation on the Plan, but established by the state line. The Town of Salisbury, and its planning board, do not have jurisdiction over land located outside its municipality, and do not have jurisdiction over land outside the Commonwealth of Massachusetts.

The cases cited by the Board address situations where a municipal boundary divides a parcel of land, creating an interjurisdictional issue, in which both municipalities involved have a direct interest in the development of the land. These cases are inapposite. They concern municipal boundaries, where this case deals with a state boundary. See Lapenas v. Zoning Bd. of Appeals of Brockton, 352 Mass. 530 (1967) (land split by the Brockton-Abington boundary line); Chelmsford v. Byne, 6 Mass. App. Ct. 848 (1978) (land split by the Chelmsford-Lowell boundary line); Burlington Sand & Gravel, Inc. v. Harvard, 26 Mass. App. Ct. 436 (1988) (land split by the Boxborough-Harvard boundary line).

The relevant provisions of the subdivision control law confirm that the Board could only consider the land within Salisbury. The submission and approval of plans not subject to subdivision control law are governed by G.L. c. 41, § 81P, which reads in relevant part:

Any person wishing to cause to be recorded a plan of land situated in a city or town in which the subdivision control law is in effect…may submit his plan to the planning board of such city or town …and if the board finds that the plan does not require such approval, it shall… endorse [the plan]…'approval under the subdivision control law not required.'

Id. (emphasis supplied).

Section 81P first establishes that the land subject to an ANR plan must be situated within the boundaries of a "city or town." Id. Second, it requires that the planning board considering an ANR endorsement of that plan must be the "planning board of such city or town," i.e., the city or town where the land is located. Id. Section 81P limits a planning board's authority to land within their "city or town," and gives it no authority to regulate land outside its borders. It also confines a plan that can be considered for an ANR endorsement by a planning board to land within the bounds of a single "city or town."

Here, the Plan concerns land located within the Town of Salisbury. Although the land shown on the Plan is a part of a larger parcel, extending over the state boundary line into Seabrook, New Hampshire, the Board is limited by the language of § 81P to considering the land subject to the Plan which lies within the Town of Salisbury's boundary lines.

There are occasions when land can be regulated across municipal or state lines. For example, when a subdivision plan extends between two municipalities, some zoning schemes empower municipalities to enforce their land-use controls on portions of a subdivision situated outside the municipality's boarder. See 8 Rohan, Zoning and Land Use Controls § 45.01[3] (2017) (Zoning & Land Use Controls). "[I]n the absence of special extraterritorial zoning authorization, municipal land use enactments are restricted to the territorial boundaries of the particular jurisdiction." 3 Zoning & Land Use Controls § 20.01[1]. Similarly, when a subdivision plan extends between two states, interstate compacts may be created to "provide for planning and regulation of land use for areas where land containing significant natural resources crosses over jurisdictional boundary lines." 1 Salkin, American Law of Zoning § 3:1 (5th ed. 2017). In the absence of an interstate compact, one state cannot regulate the land in another state. Id.

Here, the commonly owned land is divided by the state boundary line, with the land subject to the Plan located solely in Salisbury, Massachusetts. There is no interstate compact between Massachusetts and New Hampshire to regulate and develop this land (at least, not any in the record). Therefore, the Board is restricted to the territorial boundaries of its jurisdiction, and cannot regulate the land within its boundary based on the land outside of its perimeters. The Town of Salisbury has not been given express authorization to regulate or control the activity on the Seabrook lot and is not permitted by law to make the determination that it did in denying endorsement of the Plan. Only the authorities of Seabrook or the State of New Hampshire may regulate and make decisions concerning the Seabrook lot. In effect, the Town of Salisbury is attempting to regulate land in the state of New Hampshire in the absence of an interstate compact, which it cannot do.

B. Merits of Denying ANR Endorsement

As discussed, § 81P provides:

Any person wishing to cause to be recorded a plan of land situated in a city or town in which the subdivision control law is in effect, who believes that his plan does not require approval under...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 or cause to be endorsed thereon by a person authorized by it the words 'approval under the subdivision control law not required.' … Such endorsement shall not be withheld unless such plan shows a subdivision.

Id.

General Laws c. 41, § 81L, defines a subdivision as "the division of a tract of land into two or more lots." A division of land is excluded from the definition of a subdivision "if, at the time when it is made, every lot within the tract so divided has frontage on (a) a public way... of at least such distance as is then required by zoning or other ordinance or by-law... for erection of a building on such lot..." Id. Section 81L defines a lot as "an area of land in one ownership, with definite boundaries, used, or available for use, as the site of one or more buildings." Id. LePere is correct that the state boundary line is a definite boundary, separating the Locus from the Seabrook lot. Section 81P limits the Board's consideration of the Plan. The lots on the Plan each have sufficient frontage on Folly Mill Road, a public way. No other considerations are contemplated by § 81P. The Plan does not show a subdivision as defined by the exception in § 81L, and it must be endorsed. "G.L. c. 41, § 81P is intended to give planning boards the power to endorse, or not endorse, plans based on the presence or lack of a subdivision on the lot presented to the board on the plan. That is all of the power the statute gives to the board." Baggia v. Town of Rockland Planning Board, 16 LCR 633 , 634 (2008); see Bisson v. Planning Bd. of Dover, 43 Mass. App. Ct. 504 , 507-508 (1997); Hamilton v. Planning Bd. of Beverly, 35 Mass. App. Ct. 386 , 389 (1993).

The Board argues that although the Seabrook lot is not within the Plan, it is appropriate to consider the impact of the Plan on the Seabrook lot. The Board maintains that it is not attempting to regulate the Seabrook lot, but is concerned that the Plan will result in a fourth landlocked parcel. While the literal frontage requirement may be met, the Board argues that the Plan "subverts the purposes and goals of the Subdivision Control Act" because practical access to the Seabrook lot will be cut off and in cases of emergency Massachusetts public officials will be unable to respond. LePere points out that the Board cites to no case or other authority justifying a denial of ANR endorsement based on its effect on land in another state. LePere also states that it is incorrect for the Board to refer to the Seabrook lot as a fourth parcel as the Plan only creates three parcels: Lot 1, Lot 2, and Lot 3, all situated in Massachusetts.

The Board cites to Perry v. Planning Board of Nantucket, 15 Mass. App. Ct. 144 (1983), in support of its argument that a board can deny an ANR endorsement because of inadequate access. In Perry, an ANR plan was denied by the Nantucket Planning Board. Id. at 144. Though the lots met the required frontage on Oakland Street, depicted on the town plans, the street had never been constructed on the ground, and the town found that the lots did not have the required frontage within the meaning of the Subdivision Control Law. Id. at 146. The Appeals Court agreed with the planning board's determination, concluding that a public way must exist on the ground to satisfy the goals of G.L. c. 41, § 81M, which provides:

The subdivision control law has been enacted for the purpose of protecting the safety, convenience and welfare of the inhabitants of the cities and towns in which it is... by regulating the laying out and construction of ways in subdivisions providing access to the several lots therein...The powers of a planning board...shall be exercised with due regard for the provision of adequate access to all of the lots in a subdivision...

Perry, 15 Mass. App. Ct. at 151; G.L. c. 41, § 81M.

The Appeals Court interpreted the subdivision control law "in light of the reasoning and conclusion" of the SJC in Gifford v. Planning Board of Nantucket, 376 Mass. 801 (1978), as conditioning an ANR endorsement on the existence of "'(1) frontage on one of the three types of ways specified in G.L .c. 41, § 81L...and (2) a planning board's determination under § 81P that adequate access, as contemplated by § 81M, otherwise exists.'" Perry, 15 Mass. App. Ct. at 152, quoting Hrenchuk v. Planning Bd. of Walpole, 8 Mass. App. Ct. 949 (1979). See also Rettig v. Planning Bd. of Rowley, 332 Mass. 476 (1955); Gallitano v. Board of Survey & Planning of Waltham, 10 Mass. App. Ct. 269 , 273-274 (1980) (interpreting Gifford as "not intended...to broaden the powers of planning boards...it does not create a material issue of fact whenever municipal officials are of the opinion that vehicular access could be better provided for"). After Gifford, where frontage is met but access is nonexistent for the purposes set forth in §81M, an ANR endorsement can be properly denied. Thus in Perry, where frontage was technically complied with on the plan, the lack of adequate access to the lots justified the denial of the plan.

This case is distinguishable from Perry. Unlike in Perry, it is undisputed that Folly Mill Road is a public way constructed on the ground. It is also undisputed that all three lots depicted on the Plan have150 feet of frontage on this public way, as required by the Bylaw. All three lots have direct access to Folly Mill Road. The Board is correct that the rationale behind granting an ANR endorsement is that vital access is reasonably guaranteed. The Board is incorrect, however, in its statement that because access to the Seabrook lot is cut off from Folly Mill Road by the Locus, that the Denial was appropriate. Access to the Seabrook lot is not a valid consideration under the Subdivision Control Law. Section 81P states that an ANR "endorsement shall not be withheld unless such plan shows a subdivision." G.L. c. 41, § 81P. Here, no subdivision is shown. Frontage and access are met for all three lots depicted on the Plan. The Board therefore erred in denying ANR endorsement of the Plan.

The Board may be correct that there is an issue concerning access to the Seabrook lot. However, this is an issue to be dealt with between the private parties involved, the Town of Seabrook, and the state of New Hampshire, not the Town of Salisbury or the courts of Massachusetts. The Board's public safety concerns relating to emergency vehicle access to the Seabrook lot are outside the scope of an ANR endorsement. [Note 2] Again, this matter falls outside the jurisdiction of both the Board and this court. The Board is limited in its inquiry to the Locus existing solely within its jurisdiction. The frontage and access requirements of the Bylaw are met for the Locus, and the Plan does not show a subdivision. The ANR Plan must be endorsed.

Conclusion

For the foregoing reasons, the Plaintiff's Motion for Summary Judgment is hereby ALLOWED. Judgment shall enter annulling the Denial and remanding this matter to the Board with an order to endorse the Plan as approval not required under the subdivision control law.

SO ORDERED

exhibit 1