BARBARA L. O'PRAY, individually and as Trustee of the 264A NORTH MAIN STREET REALTY TRUST v. CLARK H. BREWER and TOWN OF COHASSET.

Procedural History

On December 6, 2018, Barbara L. O'Pray (O'Pray) filed her Complaint (Compl.). Clark H. Brewer (Brewer) filed his Response to Petition for Determination (Answer) on January 11, 2019. The Town of Cohasset (the town) filed the Answer of Town of Cohasset on January 18, 2019. O'Pray filed Petitioner, Barbara L. O'Pray's Motion for Summary Judgment; Concise Statement of Material Facts in Support of Petitioner's Motion for Summary Judgment (SOF); and Brief in Support of Petitioner's Motion for Summary Judgment on March 8, 2019. On April 8, 2019, Brewer filed Defendant Clark H. Brewer's Opposition to Plaintiff's Motion for Summary Judgment, Defendant Clark H. Brewer's Opposition to Petitioner's Concise Statement of Material Facts in Support of the Petitioner's Motion for Summary Judgment, and Defendant Clark H. Brewer's Brief in Opposition to Plaintiff's Brief in Support of Plaintiff's Motion for Summary Judgment. Brewer also filed Defendant Clark H. Brewer's Motion for Summary Judgment, Concise Statement of Material Facts in Support of Defendant Clark H. Brewer's Statement of Motion for Summary Judgment, and Brief in Support of Defendant Clark H. Brewer's Motion for Summary Judgment on April 8, 2019.

On April 9, 2019, the town filed the Response of Town of Cohasset to Plaintiff's Motion for Summary Judgment and the Response of Town of Cohasset to Plaintiff's Concise Statement of Material Facts in Support of Petitioner's Motion for Summary Judgment. O'Pray filed Plaintiff's Reply to Defendant Brewer's Opposition to Plaintiff's Concise Statement of Material Facts and Defendant Brewer's Opposition to Plaintiff's Motion for Summary Judgment, Affidavit of Attorney Jeffrey A. De Lisi, Plaintiff's Opposition to Defendant Brewer's Motion for Summary Judgment, and Plaintiff's Brief in Opposition to Defendant Brewer's Motion for Summary Judgment on April 17, 2019. On April 24, 2019, Brewer filed Defendant Brewer's Reply Brief to Plaintiff's Reply to Defendant Brewer's Opposition to Plaintiff's Concise Statement of Material Facts and Defendant Brewer's Opposition to Plaintiff's Motion for Summary Judgment, Defendant Brewer's Reply to Plaintiff's Brief in Opposition to Defendant Brewer's Motion for Summary Judgment, Supplemental Appendix, and Affidavit of Clark H. Brewer. The town filed the Response of Town of Cohasset to Defendant Clark H. Brewer's Motion for Summary Judgment and Response of Town of Cohasset to Defendant Clark H. Brewer's Concise Statement of Material Facts in Support of Defendant Clark H. Brewer's Statement of Motion for Summary Judgment on April 30, 2019.

On May 1, 2019, the court heard the cross-motions for summary judgment and took the motions under advisement. O'Pray filed Petitioner's Supplemental Brief Concerning Recent SJC Case RCA Development v. Zoning Board of Appeals of Brockton on May 8, 2019. On May 13, 2019, Brewer filed Defendant, Clark H. Brewer's Supplemental Brief on Effect of SJC-12619 Decision, RCA v. Brockton. On May 14, O'Pray filed Plaintiff's Motion to Strike "Defendant, Clark H. Brewer's Supplemental Brief on Effect of SJC-12619 Decision, RCA v. Brockton" (Motion to Strike). This Memorandum and Order follows.

Summary Judgment Standard

Where "the pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law," a court may grant summary judgment. Mass. R. Civ. P. 56(c). The court must "make all logically permissible inferences" in the non-movant's favor. Willits v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991).

Facts

The following facts are undisputed:

1. Barbara L. O'Pray (O'Pray) is the Trustee of the 264A North Main Street Realty Trust and the owner of Lot A and Lot C as shown on a plan entitled "Compiled Plan of Land North Main Street, Cohasset, Massachusetts, Prepared for Richard D. Smullen, Scale 80 feet to an inch, November 1, 1972" by Perkins Engineering, Inc., Engineers and Surveyors, 10 Industrial Park Road, Hingham, Massachusetts and recorded with the Norfolk County Registry of Deeds (registry) as Plan No. 997 of 1972 in Plan Book 4888, Page 371 (the ANR plan). A copy of the ANR plan is attached. Compl. ¶ 1 & Exh. 1; Answer ¶ 1.

2. On November 1, 1972 the ANR plan was endorsed by three members of the Cohasset Planning Board (the board) as "Approval Under the Subdivision Control Law Not Required." SOF ¶ 2.

3. At the time of the endorsement of the ANR plan, the Cohasset Zoning Bylaws (bylaw) required lots to have frontage for a distance of 50 feet. SOF ¶ 5.

4. No party appealed the above-mentioned endorsement of the ANR plan. SOF ¶ 3.

Discussion

In municipalities that have accepted the Subdivision Control Law, no person may make a subdivision of land without the approval of the subdivision plan by the municipality's planning board. G.L. c. 41, § 81O. Certain divisions of land are excluded from the definition of "subdivision" and thus do not require approval by the planning board. G.L. c. 41, § 81L; see RCA Dev., Inc. v. Zoning Bd. of Appeals of Brockton, 482 Mass. 156 , 159 (2019). An owner may record a plan showing such a division of land that does not constitute a subdivision only if the planning board determines that the plan does not require approval under the Subdivision Control Law and endorses the plan to that effect. G.L. c. 41, § 81P. [Note 1]

Section 81L provides for three exceptions where a division of land into two or more lots will not constitute a subdivision. The first two of these exceptions are not applicable here. Under the final exception, a division of land into two or more lots shall not constitute a subdivision if each lot has frontage on:

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.

G.L. c. 41, § 81L. The length of the frontage must also satisfy the municipality's zoning requirements. Id.

Here, the board endorsed the ANR plan in 1972 as approval not required. At the time of this endorsement, the bylaw required 50 feet of frontage. The board did not provide an explanation of why approval was not required. [Note 2] However, because the board found approval not to be required, they necessarily found that: (1) each lot had "frontage on a way in existence when the subdivision control law became effective" in Cohasset; (2) this way had, "in the opinion of the . . . 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 . . . or served" by the way and for the installation of municipal services; and (3) each lot had at least 50 feet of frontage on such way. Id; see School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70 , 81 (1982) ("It is axiomatic in statutory construction that the word 'shall' is an imperative…."). Thus, no genuine issue of material fact exists as to these issues.

Brewer challenges the validity of the ANR plan's endorsement, calling into question whether the plan really shows a way given that the way seems to be entirely within the bounds of the lots. While his arguments may have merit, his challenge, coming years after the endorsement, is untimely. See Stefanick v. Planning Bd. of Uxbridge, 39 Mass. App. Ct. 418 , 424 (1995) (sixty-day limitations period applies to challenge of plan endorsement under § 81P). The ANR plan is final.

O'Pray is therefore entitled to a declaration as to the ANR plan. She seeks a series of declarations regarding the plan, including declarations that the private way shown on the plan "may be utilized in determining zoning frontage and other dimensional zoning criteria under" the bylaw, that lots A, B, and C shown on the ANR plan each have at least 50 feet of legally sufficient frontage on the private way, that the private way is a "street" under the definitions section of the bylaw, and that a single-family dwelling may be constructed on lot A under the bylaw. The only declaration that can be made on this record is that the ANR plan is final and that the board found that on November 1, 1972, lots A, B, and C on the plan each had at least 50 feet of frontage on a way in existence when the subdivision control law became effective in Cohasset that had 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 or served by the way and for the installation of municipal services. The other declarations requested by O'Pray require reliance on evidence not in the record or the drawing of inferences in her favor that are not permitted on a motion for summary judgment. [Note 3]

Conclusion

For the foregoing reasons, O'Pray's motion for summary judgment is ALLOWED IN PART and DENIED IN PART and Brewer's motion for summary judgment is DENIED. Judgment shall enter declaring that (a) the ANR plan is final and (b) the board found that on November 1, 1972, lots A, B, and C on the ANR plan each had at least 50 feet of frontage on a way in existence when the subdivision control law became effective in Cohasset that had 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 or served by the way, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon.

SO ORDERED

exhibit 1