Introduction
At issue in this case is whether a way depicted as "Pingree Road" on a constructively endorsed ANR plan [Note 1] should now be put on Georgetown's Official Map. [Note 2] This matters for this reason. In cities and towns with Official Maps, no newly created lots may be developed unless they are in an approved subdivision or located on a road on the Official Map. See G.L.c.41, §81E. Mr. Tolman has land on "Pingree Road" which he has divided into four lots and now wants to develop. He does not want to go through the subdivision approval process, nor does he believe he is required to do so. Instead, he says, the constructive endorsement of his ANR plan requires the Town to put "Pingree Road" on its map and thus allow his proposed development to go forward. The relevant facts are undisputed and, accordingly, Mr. Tolman has moved for partial summary judgment on this issue. The Town, its Planning Board, and its officials are opposed.
Resolving the motion is a matter of statutory construction, with statutes that both parties concede are not a model of clarity in this situation. They can be harmonized, however, with a "common sense" approach, and I do so. See Cape Cod Shellfish & Seafood Co., Inc. v. City of Boston, 86 Mass. App. Ct. 651 , 658 (2014). Using this and other principles of construction, for the reasons set forth below, I rule as follows.
ANR Plans
When construing statutes, context is critical. As aptly noted in W.W. Wilde Co., Inc. v. Bd. of Assessors of Holliston, 84 Mass. App. Ct. 102 (2013), "[w]e do not construe a statute's words in isolation or apart from the legal context in which they appear. The meaning of language is inherently contextual." 84 Mass. App. Ct. at 104 (internal citations and quotations omitted). It is thus helpful to begin with a brief explanation of the context in which this case arises - subdivision approval, ANR plans, the "endorsement" of ANR plans, and the "constructive" endorsement of those plans.
The creation of new residential building lots is governed by the subdivision control law, G.L. c.41, §81B et seq. One of its principal purposes - and the guiding principle here - is "to ensure that all newly created lots have adequate access by ways that will be safe and convenient for travel, because residents' safety, convenience, and welfare depend critically on that factor." Barry v. Planning Bd. of Belchertown, 96 Mass. App. Ct. 314 , 317 (2019) (internal citations and quotations omitted); see G.L. c.41, §81M. New lots are created by subdividing old ones, and such subdivisions require approval from the local planning board which generally has detailed requirements for roadways. See G.L. c.41, §§81L, 81O.
But "[a] plan does not require planning board approval, however, if it does not show a 'subdivision' [as that term is defined in §81L]; in that event the plan is entitled to an endorsement 'approval under the subdivision control law not required,' frequently referred to as an 'ANR' endorsement. G.L. c.41, §81P." Barry, 96 Mass. App. Ct. at 317 (emphasis added, citations omitted). Such an endorsement requires the planning board to find that every proposed lot has frontage on a way that meets any one of the following three criteria: (1) the way is "a public way" or "a way which the [town clerk] certifies is maintained and used as a public way," (2) the way "is shown on a plan theretofore approved and endorsed in accordance with the subdivision control law," or (3) the way was "in existence when the subdivision control law became effective . . . having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic . . . and for the installation of municipal services to serve such land and the buildings . . . thereon." See G.L. c.41, §81L (definition of "subdivision", clauses (a), (b), and (c)); Barry, 96 Mass. App. at 317. By requiring this finding before ANR endorsement can be given, "the vital access [the subdivision control law requires] is reasonably guaranteed in another manner." Barry, 96 Mass. App. at 317 (internal citations and quotations omitted).
A planning board must act promptly when presented with a proposed ANR plan. Under G.L. c. 41, §81P, ANR plans are constructively endorsed if the board fails to act on them or fails to notify the applicant and clerk of its action within twenty-one days of the plan's submission. The ANR plan at the center of this case was constructively endorsed. Thus, the roadway it shows on which its lots front - "Pingree Road", in the section shown on the plan - has never affirmatively been found by the board to be compliant with the requirements for ANR endorsement. It has been "endorsed" only through the board's negligence.
A Town's "Official Map," and the Significance of Georgetown's Map In This Case
In cities and towns with Official Maps, no newly created lots may be developed unless they are in an approved subdivision or located on a road on the Official Map. G.L.c.41, §81E. Georgetown has such a map. Thus, unless Mr. Tolman goes through the subdivision approval process and receives such approval - a process he contends he need not undertake - he can only develop his lots if the road they front on is placed on the map. That road can only be placed on the map "[a]fter a plan bearing an endorsement of approval or accompanied by a certificate as provided in the subdivision control law has been recorded." G.L. c.41, §81E.
Mr. Tolman's plan did not receive "an endorsement of approval," only a certificate of constructive endorsement. The questions the partial summary judgment motion thus presents are these. (1) Is a certificate by the Town Clerk of the constructive endorsement of an ANR plan a "certificate as provided in the subdivision control law" for purposes of G.L. c. 41 §81E? (2) If so, is the Town then required by G.L. c. 41 §81E to amend its official map to include "Pingree Road" in the section shown on Mr. Tolman's ANR plan? [Note 3] And (3), before doing so (or, alternatively, after adding the road to the map but before allowing it to be opened for actual use), may the road be required to meet reasonable width, grading, surfacing, and drainage conditions placed on it by the planning board? [Note 4]
The material facts relevant to these questions are undisputed, and they may thus be answered as a matter of law. See Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976). For the reasons, set forth below, I find and rule as follows.
Facts
The Tolman property is in Georgetown. On May 7, 1984, the Town Meeting voted to adopt a map on file in the office of the Planning Board entitled "1984 Official Map of Georgetown." This version of the map did not include Pingree Road. [Note 5]
As the Town acknowledges, not every road then in existence was included on that map, as evidenced by amendments made at Town Meeting in 2011. Those amendments were made to "add to and show on said Official map, those private ways that were in existence and used in common by more than two owners at the time the map was first adopted but were inadvertently omitted from the map . . ." [Note 6] One of those amendments added a section of Pingree Road, which was now depicted on the Official Map as a "private way." Mr. Tolman's property is Lots 1-4 on his ANR plan, with "Pingree Road" as shown on that plan fronting each lot and providing its sole
means of access. The parties agree that Pingree Road in the section depicted on the ANR plan does not appear on the Official Map.
Prior to its incorporation in 1838, Georgetown was part of the Town of Rowley. The road Mr. Tolman refers to as Pingree Road was described in the minutes of the March 3, 1800 Rowley town meeting, [Note 7] and multiple versions of the town maps prepared by the Georgetown Planning Board prior to the adoption of the Official Map in 1984 show at least part of Pingree Road. Additionally, a 1934 plan entitled "Dept. of Conservation Plan of Georgetown-Rowley State Forest" shows a portion of Pingree Road labeled as "Marlboro Road," including the section that fronts the Tolman property. The record does not indicate why the road was discussed by the Rowley town meeting in 1800, nor why it was shown on these maps. As shown by its exclusion from Georgetown's Official Map in 1984 and also from the amendments to that map in 2011, the Town did not believe that any of this gave Official Map status to the section of the roadway at issue in this case, or that the condition of this section warranted such placement.
On October 17, 2013 Mr. Tolman applied to the Georgetown Planning Board for endorsement of his 2013 ANR plan showing the division of his land into four lots, all with frontage on "Pingree Road." The Board failed to act on his application within 21 days. Mr. Tolman then timely notified the Town Clerk of this failure, and the ANR plan was thus constructively endorsed pursuant to G.L. c.41, §81P with the Clerk issuing a certificate of constructive endorsement. Mr. Tolman then recorded the certificate and the ANR plan at the Registry. The certificate is captioned Certificate of Town Clerk Janice McGrane Pursuant to G.L. c. 41 §81P, and states that "during the twenty-one days following submission, I received no notice from the Planning Board that any action was taken on said plan, and I accordingly
determine, pursuant to the terms of the abovesaid statute, that the plan does not require approval under the Subdivision Control Law." Certificate of Town Clerk Janice McGrane Pursuant to G.L. c. 41 §81P (Nov. 25, 2013). Clerk McGrane also stamped and signed the ANR plan itself, stating "I, Janice M. McGrane, Town Clerk of the Town of Georgetown, hereby certify that the within Approval Not Required Plan does not require the approval of the Planning Board by reason of the failure of the Planning Board to take action on the Plan within 21 days of the submission of said Plan. Date. Nov. 25, 2013."
The Planning Board appealed the constructive endorsement to this court, which dismissed the appeal. Georgetown Planning Bd. v. Georgetown Planning Bd. and James Tolman, 2014 WL 3555971 (Mass. Land Ct., Jul. 17, 2014). No appeal from that dismissal was taken. The constructive endorsement is thus final.
The building inspector has refused to issue building permits for the Tolman lots because they do not front on a road depicted on the Town's Official Map. This is Mr. Tolman's lawsuit to have "Pingree Road" put on that Map, at least in the section shown on his ANR plan, to meet that objection.
Discussion
A G.L. c.41, §81P Certificate of Constructive Endorsement of an ANR Plan by the Town Clerk is a "Certificate as Provided in the Subdivision Control Law" Within the Meaning of G.L. c. 41 §81E
The Official Map statute is G.L. c.41, §81E, which provides:
Each city or town having a planning board established under section eighty-one A may, by action of its city council or town meeting adopt an official map, prepared under the direction of such planning board and showing the public ways and parks therein as theretofore laid out and established by law and the private ways then existing and used in common by more than two owners. Such official map is hereby declared to be established to conserve and promote the public health, safety and general welfare. Upon the adoption of such a map, and upon any change therein or addition thereto made as hereinafter provided, the city or town clerk shall forthwith file with the appropriate registry of deeds a certificate of such action and a copy of such map as adopted or as changed or added to. A copy of such official map or any change thereto, shall be furnished to the department of housing and community development. After a plan bearing an endorsement of approval or accompanied by a certificate as provided in the subdivision control law has been recorded, the ways shown on said plan shall be and become a part of the official map.
G.L. c.41, §81E (emphasis added). The statute then continues with the consequences of not being on the Official Map:
No public water supply or sewer or other municipal utility or improvement shall be constructed in any public or private way in any city or town having an official map elsewhere than in a subdivision approved under the subdivision control law, unless such way has been placed on or made part of such map. [And] No permit for the erection of any building elsewhere than in a subdivision approved under the subdivision control law in any city or town having an official map shall be issued unless a way giving access to the lot upon which such proposed building is to stand has been placed on or made a part of such map; provided, that an applicant for a building permit which has been denied under this section shall have the same remedy as a person whose application for a building permit has been denied under section eighty-one Y of this chapter.
If such law is not in effect in any city or town adopting an official map, such city or town shall forthwith provide a board of appeals in the manner set forth in section eighty-one Z, which shall have jurisdiction over appeals under this section in the same manner as provided in sections eighty-one Y to eighty-one AA.
G.L. c.41, §81E (cont'd) (emphasis added).
Georgetown has an Official Map. Thus, if Mr. Tolman elects not to seek subdivision approval for his lots, he cannot develop them unless "Pingree Road", in the section fronting those lots, is placed on the Official Map "by a certificate as provided in the subdivision control law." A certificate from the Town Clerk that an ANR plan has been constructively endorsed by the planning board is such a certificate.
First, it is certainly a "certificate." The ANR statute, G.L. c.41, §81P expressly says so, in the following plain words.
If the board fails to act upon a plan submitted under this section or fails to notify the clerk of the city or town and the person submitting the plan of its action within twenty-one days after its submission, it shall be deemed to have determined that approval under the subdivision control law is not required, and it shall forthwith make such endorsement on said plan, and on its failure to do so forthwith the city or town clerk shall issue a certificate to the same effect. The plan bearing such endorsement or the plan and such certificate, as the case may be, shall be delivered by the planning board, or in the case of the certificate, by the city or town clerk, to the person submitting such plan.
G.L. c.41, §81P (emphasis added). When the legislature makes word choices, it is deemed to have done so deliberately. See Martha's Vineyard Land Bank Comm'n v. Bd. of Assessors of W. Tisbury, 62 Mass. App. Ct. 25 , 2728 (2004) ("Where the language of a statute is clear and unambiguous, it is conclusive as to the legislative intent, and the courts enforce the statute according to its plain wording. . . . When a statute speaks with clarity to an issue, judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished. We need not look beyond the words of the statute itself in such a case.") (internal citations and quotations omitted).
Second, it is a "certificate as provided in the subdivision control law." That law is G.L. c.41, §81B et seq., and §81P is an integral part of the statutory scheme. See Barry, 96 Mass. App. Ct. at 317-318 (explaining how ANR endorsements relate to the approval process: "where our statute relieves certain divisions of land of regulation and approval by a planning board ('approval . . . not required'), it is because the vital access is reasonably guaranteed in another manner.") (internal citations and quotations omitted).
Third, because it is the same word in the same statutory scheme ("certificate" in §81P [constructive endorsement] and "certificate" in §81E [Official Map]), it has the same meaning in both. When the legislature makes a word choice, it is deemed to have done so both deliberately and consistently, particularly where (as here) the statutes being interpreted are within the same statutory scheme. See Commonwealth v. Williamson, 462 Mass. 676 , 681 (2012) ("When the meaning of any particular section or clause of a statute is questioned, it is proper, no doubt, to look into the other parts of the statute. Statutes should be read as a whole to produce an internal consistency.") (internal citations and quotations omitted). See also, W.A. Wilde Co., Inc. v. Bd. of Assessors of Holliston, 84 Mass. App. Ct. 102 , 104 (2013) ("We do not construe a statute's words in isolation or apart from the legal context within which they appear. The meaning of language is inherently contextual.") (internal citations and quotations omitted).
Fourth, pursuant to G.L. c. 41 §81E, "[a]fter a plan bearing an endorsement of approval or accompanied by a certificate as provided in the subdivision control law has been recorded, the ways shown on said plan shall be and become a part of the official map" (emphasis added). By §81P, a certificate of constructive endorsement has the same legal effect as an affirmative endorsement by the board.
Fifth, if there was any doubt, it is put to rest by G.L. c. 41 §81L, which provides definitions for terms used in the subdivision control laws. As defined in §81L:
"Certified by [or endorsed by] a planning board", as applied to a plan or other instrument required or authorized by the subdivision control law to be recorded, shall mean, bearing a certification or endorsement signed by a majority of the members of a planning board, or by its chairman or clerk or any other person authorized by it to certify or endorse its approval . . .
(emphasis added). A certificate by the town clerk, authorized by §81P to certify that an ANR plan has been constructively endorsed by the planning board, falls squarely within this definition.
With the Caveat Discussed Below, Because the Constructive Endorsement is a "Certificate," G.L. c. 41, §81E Requires the Town to Amend its Official Town Map to Show Pingree Road in the Section Shown on the ANR Plan
The constructively endorsed and correspondingly certified ANR plan shows a section of "Pingree Road." The inquiry now turns to whether the Town is thus required to put that section on its Official Town Map.
I begin with a basic point. Mr. Tolman's ANR plan labels that section of "Pingree Road" as "Public-Variable Width." By itself, an ANR plan, whether affirmatively or constructively endorsed, cannot make a road public. Any such status can only come in one of the following three ways, and must be affirmatively proved: "(1) a laying out by public authority in the manner prescribed by statute (see G.L. c. 84, §§1-32); (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal, coupled with an express or implied acceptance by the public." Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979) (internal citations omitted). None of this is shown in the summary judgment record, so the road is at best a private one. [Note 8] As previously noted, ANR status can be found on two other grounds, both applicable to private ways: (1) the way "is shown on a plan theretofore approved and endorsed in accordance with the subdivision control law," or (2) the way was "in existence when the subdivision control law became effective . . . having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic . . . and for the installation of municipal services to serve such land and the buildings . . . thereon." See G.L. c.41, §81L (definition of "subdivision," clauses (b) & (c)). But, as discussed more fully below, in this context of "constructive" endorsement and a town's Official Map, no binding finding has been made that the roadway meets those tests either.
A second point is also basic. As previously discussed, whatever Mr. Tolman's entitlement, it does not go beyond the section of "Pingree Road" shown on his ANR plan. See n.3, supra.
Mr. Tolman argues that, with the certificate of constructive endorsement of his ANR plan now recorded, §81E automatically entitles him to the placement of his section of "Pingree Road" on the town's Official Map, while the Town contends that a completely self-executing application would contradict the foundational requirement of official maps. Both are correct, although not in the way each argues. This is because an §81P constructive endorsement with a corresponding certificate is an §81E certificate, but Official Map status requires that a roadway meet reasonable requirements before it can be opened for use. See G.L.c. 41, §§81M & 81G.
As an initial matter, because the constructive endorsement is a "certificate," §81E requires the Town to amend its Official Map to show "Pingree Road" in the section shown on the ANR plan. This is clear from the statutory language. Under the familiar rules of statutory interpretation, a statute:
must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated. Courts must ascertain the intent of a statute from all its parts and from the subject matter to which it relates, and must interpret the statute as to render the legislation effective, consonant with sound reason and common sense.
Ret. Bd. of Somerville v. Buonomo, 467 Mass. 662 , 668 (2014) (internal citations and quotations omitted). §81E speaks plainly. After a plan accompanied by a certificate of approval has been recorded, "the ways shown on said plan shall be and become part of the official map." (emphasis added). The use of the word shall shows the legislative intent to require a compulsory action. See Black's Law Dictionary (11th ed. 2019), which defines shall as "[h]as a duty to; more broadly, is required to," and characterizes the usage as "the mandatory sense that drafters typically intend and that courts typically uphold." [Note 9] See also Kupperstein v. Planning Bd. of Cohasset, 66 Mass. App. Ct. 905 , 905 (2006) (finding use of the word "shall" in G. L. c. 41, §81P makes action of the municipal clerk mechanical and landowner's entitlement to certificate mandatory when ANR plan constructively approved).
But placement on the Official Map through constructive endorsement does not mean that the road shown can automatically be opened for use, and certainly not a private road such as this. An example makes this clear. Think of a situation where the road shown on the ANR plan is nothing more than a rutted, muddy, deeply pitted pathway, little more than a deer-track wide. Surely a planning board's neglect cannot make this acceptable for use. See Ball v. Planning Bd. of Leverett, 58 Mass. App. Ct. 513 , 517 (2003) (discussing roadway access that is "illusory in fact" and affirming denial of ANR endorsement for such a public road). The ANR statute is part of the overall subdivision control law, and "[a] principal purpose of [that] law is to ensure that all newly created lots have adequate access by ways that will be safe and convenient for travel, because residents' safety, convenience, and welfare depend critically on that factor." Barry, 96 Mass. App. Ct. at 317 (emphasis added, internal citations and quotations omitted); Ball, 58 Mass. App. Ct. at 517 ("We have consistently construed the exemptions from subdivision control that are set forth in clauses (a), (b) and (c) of [G.L. c. 41,] §81L, twelfth par., in light of the purposes of the subdivision control generally as those are set forth in G.L. c.41, §81M.") (citations omitted). See also U.S. Bank Trust N.A. v. Johnson, 96 Mass. App. Ct. 291 , 294 (2019) (statutes to be read "as a whole to produce an internal consistency," with the objective of discerning "the intent of the Legislature, based on the words used and the evident purpose for which the statute was enacted.") (internal citations and quotations omitted); DiGiacomo v. Metropolitan Property & Casualty Ins. Co, 66 Mass. App. Ct. 343 , 346 (2006) ("Courts must ascertain the intent of a statute from all its parts and from the subject matter to which it relates, and must interpret the statute so as to render the legislation effective, consonant with sound reason and common sense."); Ferrante v. Bd. of Appeals of Northampton, 345 Mass. 158 , 162-163 (1962) ("The governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and the ordinance. The public has an interest in zoning that cannot thus be set at naught.") (internal citations and quotations omitted); Cullen v. Bldg. Inspector of N. Attleborough, 353 Mass. 671 , 675 (1968) ("The right of the public to have the zoning by-law properly enforced cannot be forfeited by the action of its officers.") (citing Ferrante); Girard v. Bd. of Appeals of Easton, 14 Mass. App. Ct. 334 , 338 (1982) (noting that "zoning relief granted constructively is not beyond review . . . [w]ere it otherwise, a board of appeals could, through non-action, put flagrantly unlawful zoning relief beyond review."). The question then becomes, what type of review can be made and what conditions can be placed on the roadway before it goes on the Official Map or, alternatively, is placed on the Map but prohibited from opening for use until those conditions are met.
How then are constructive endorsement and mandatory placement on the Official Map to be harmonized to avoid the clearly absurd result of my example? These are not uncharted waters, and the site plan approval process provides guidance. There, once "the specific area and use criteria stated in the by-law are satisfied, the [planning] board [does] not have discretionary power to deny . . . approval, but instead [is] limited to imposing reasonable terms and conditions on the proposed use." Prudential Ins. Co. v. Bd. of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281-282 (1986). "In short, the planning board is confined to 'regulation of a use, rather than its prohibition.'" Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17 , 20 n.4 (1995) (citing Prudential Ins.). The application of that guidance to this situation is straightforward and logical. A constructively-endorsed roadway must be placed on the Official Map, but the planning board may place "reasonable terms and conditions" on the roadway before it can be used.
In fact, this exact process as applicable to roadways on Official Maps is set forth in G.L. c. 41, §81G. In relevant part, it provides:
After a city or town has adopted an official map under section eighty-one E, no person shall open a way for public use, except as provided in the subdivision control law, unless the location of such way is in accordance with such official map as it then appears, or has been approved by the planning board under the provisions of this section, and in either case, the grading, surfacing and drainage of such way has been approved by such board.
G.L. c. 41, §81G (emphasis added). In short, no such roadway can be opened unless and until the planning board has reviewed and approved the grading, surfacing and drainage of the way.
On its face, §81G is applicable only to public ways. But "public" as used in this provision has a broader meaning, and must have such a broader meaning to harmonize the various statutory provisions in a "common sense" way to avoid the absurd result in my example. [Note 10] See Ball, 58 Mass. App. Ct. at 517 (exemptions from subdivision control construed in light of purposes set forth in G.L. c.41, §81M). Thus, "public" as used in §81G must be interpreted as used by the public, and that means police, fire, and delivery vehicles, among others. See Reeve v. Godfrey, 2016 WL 3688392 (Mass. Land Ct., Jul. 12, 2016), aff'd 92 Mass. App. Ct. 1116 , 2017 WL 5760300 (Rule 1:28 Mem. & Order, Nov. 29, 2017) (zoning provision applicable even to highly private road because road was "generally open to governmental agencies or the public," even if infrequently used by them). In short, §81G and the role it gives the planning board in assuring adequate grading, surfacing, and drainage covers every road used to serve residences. Any other interpretation would be contrary to the overall purpose and intent of the subdivision control law. See G.L. c. 41, §81M.
Conclusion
For the foregoing reasons, I ALLOW Mr. Tolman's motion for partial summary judgment to this extent. The way depicted as "Pingree Road" on the constructively endorsed ANR Plan must be placed on the Town's Official Map as a private road in the location and for the length depicted on that Plan, but it cannot be opened for use unless and until the planning board has reviewed it and it has complied with whatever reasonable conditions the board places on its width, grading, surfacing, and drainage.
SO ORDERED.
JAMES TOLMAN v. JOSEPH BONAVITA, DOUGLAS DAWES, GARY FOWLER, STEVEN SADLER, and CHARLES DURNEY as members of the Town of Georgetown Board of Selectmen; the TOWN OF GEORGETOWN; LES GAUDIN as Building Inspector and Zoning Enforcement Officer of the Town of Georgetown; COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF CONSERVATION & RECREATION; BRADLEY PALMER STATE PARK; LEONARD LEASING LTD.; ROBERT MITCHELL; THERESA MITCHELL; and SUE FREIHOFER