JAMES V. MOROSE and JANET L. MOROSE v. PAUL G. FITCH, KAREN FITCH, WILLIAM PRENTISS, JOHN FARMER, MARGARET ZILINSKY, JAMES SEARS, CHARLES SMITH, and NATHANIEL J. SPEARS

One of the unique features of the Massachusetts Subdivision Control Law, G.L. c. 41, §§81K, et seq., is that certain divisions of land into smaller lots do not meet the definition of a "subdivision" and thus do not require a formal application to and approval of the municipality's planning board. If a division of land creates lots that have adequate frontage on an existing way, it is not a subdivision, and a plan showing such a division may be endorsed by the planning board as "approval not required under the Subdivision Control Law" and recorded at the registry - the so-called "ANR plan." G.L. c. 41, §§81L, 81P. Paul G. Fitch and Karen Fitch (the Fitches) sought and obtained the Town of Danvers Planning Board's approval of endorsement of an ANR plan dividing their property into two lots. James V. Morose and Janet L. Morose (the Moroses) abut one of the new lots. The Moroses have brought a separate action against the Fitches claiming title by adverse possession over a portion of one of the new lots on the ANR plan. In this action, the Moroses have challenged the Planning Board's decision to endorse the ANR plan. The Fitches have brought a motion for judgment on the pleadings. Because the Moroses lack standing to challenge the ANR plan and, in any event, there is substantial evidence in the record to support the Planning Board's decision, the motion for judgment on the pleadings will be allowed.

Procedural History

The Moroses filed their Verified Complaint (Compl.) on January 25, 2019. The case management conference was held on February 12, 2019. During the conference, the Motion to Consolidate was denied. On March 1, 2019, the Affidavit Certifying Administrative Record and the Index of Administrative Record were filed, together comprising the administrative record (AR).

The Plaintiffs' Motion to Supplement Administrative Record was filed on March 8, 2019. On March 27, 2019, the Plaintiffs' Memorandum in Support of Motion to Supplement Administrative Record was filed. On March 29, 2019, pursuant to Land Court Rule 6, the Court allowed the Plaintiffs' Motion to Supplement Administrative Record without a hearing, and the plaintiffs' supplemental administrative record (SAR) was admitted.

The Moroses filed Plaintiffs' Motion for Judgment on the Pleadings and Plaintiffs' Memorandum in Support of Motion for Judgment on the Pleadings on May 2, 2019. On May 15, 2019, the Fitches filed Defendants' Motion to Dismiss the Certiorari Petition and Defendants' Cross Motion for Judgment on the Pleadings, as well as Defendants' Memorandum of Law on its Motion to Dismiss the Certiorari Petition and Defendants' Cross Motion for Judgment on the Pleadings. On May 20, 2019, the Moroses filed Plaintiffs' Reply to the Defendants' Motion to Dismiss and Sur-Reply to Defendants' motion for Judgment on the Pleadings.

A hearing on the Motion for Judgment on the Pleadings was held and taken under advisement on June 17, 2019. On June 24, 2019, the Fitches filed Defendants' Motion to Allow Written Statement in the Judge's Absolute Discretion. The Defendants' Motion to Allow Written Statement in the Judge's Absolute Discretion was allowed on June 26, 2019.

Standard of Review

Judicial review of an endorsement of an ANR plan pursuant to G.L. c. 41, §81P, "is in the nature of certiorari." Stefanick v. Planning Bd. of Uxbridge, 39 Mass. App. Ct. 418 , 424 (1995); see Murphy v. Planning Bd. of Hopkinton, 70 Mass. App. Ct. 385 , 389 (2007). Thus, this action is governed by the certiorari statute, G.L. c. 249, §4. The Land court has subject matter jurisdiction of this case because it pertains to "arises under or involves the subdivision control law." G.L. c. 249, §4.

An action for certiorari review is brought to review final decisions by quasi-judicial agencies 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." Id. In 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. Conversation Comm'n of Blackstone, 41 Mass. App. Ct. 681 , 684 (1996), quoting Commissioner of Revenue v. Lawrence, 379 Mass. 205 , 208 (1979). Thus, the review is not de novo, but instead is limited "to the record of the administrative proceedings below." Mello Const., Inc. v. Division of Capital Asset Mgmt., 84 Mass. App. Ct. 625 , 631 (2013). The scope and standard of this review depends on "the nature of the action sought to be reviewed." Black Rose, Inc. v. City of Boston, 433 Mass. 501 , 503 (2001), quoting Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37 , 49 (1977).

Undisputed Facts

1. The Moroses reside at and are the owners of record at 20 Hardy Street, Danvers, Massachusetts. (Compl. ¶¶ 1-2).

2. The Fitches reside at 3830 Hobaw Drive, Myrtle Beach, South Carolina and are the owners 17 Florence Street and 22 Hardy Street (MAP 25, LOTS 68 & 77), Danvers, Massachusetts (together, the property). (Compl. ¶¶ 3-4).

3. By a deed dated December 28, 2000, Claudio Gabriele granted all of his right, title and interest in 22 Hardy Street to Paul Fitch. This deed was recorded at Essex South District Registry of Deeds on August 21, 2018, in Book 36952, page 112. (AR DAN000005).

4. Under the Town of Danvers Zoning Bylaws, Table 2 - Table of Dimensional Requirements - Residential, lots in R-1 zoning districts need a minimum frontage of at least 80 feet and a minimum lot area of 10,000 square feet. (AR DAN000060).

5. On March 12, 2015, the Town of Danvers Assistant Town Clerk certified that "Hardy Street was accepted as a public way in the Town of Danvers on March 29, 1880." (AR DAN000014).

6. On or about April 10, 2015, the Fitches submitted a Form A Application for Endorsement of Approval Not Required Plan for 17 Florence Street and 22 Hardy Street, Danvers, Massachusetts (2015 ANR plan). (AR DAN 000059).

7. The 2015 ANR Plan created a division of the property into Lot 1, Lot 2, and Lot 3. (AR DAN 000059).

8. In a June 2, 2015, opinion letter, counsel for the Town expressed concern that there was not a showing that Hardy Street in fact existed on the ground to the extent necessary to establish minimum frontage. (AR DAN000059-62).

9. On June 12, 2015, the Board declined to endorse the Fitches' application for approval of the 2015 ANR plan. (SAR Ex. B).

10. On November 12, 2018, the Fitches filed an application with the Board for its endorsement of a plan of land in Danvers pursuant to M.G.L. c. 41, §81P, an approval-not-required (2018 ANR plan). A copy of the final version of the 2018 ANR plan is attached. (AR DAN000003, DAN000007-12, DAN000055).

11. The 2018 ANR Plan proposed to redraw the existing lot lines of the property. It reduces 17 Florence Street from 31,603 square feet to 15,003 square feet, maintaining the original frontage of 17 Florence Street. It eliminates a lot line between 17 Florence Street and 22 Hardy Street to combine the remaining land of the northern half of 17 Florence Street with all of 22 Hardy Street, thus creating a new Lot 2 consisting of 22,532 square feet (Lot 2). Lot 2 is shown has having 187.933 feet of frontage on Hardy Street. (AR DAN000002-3, DAN000007-12).

12. In a letter to Paul Fitch dated December 12, 2018, Brett Gonsalves, the Director of Operations of the Town Department of Public Works, stated that "Hardy Street is an accepted Town road that is completely maintained by the Town of Danvers. Maintenance includes snow removal, refuse & recycling collection, road repairs and maintenance along with Water, Sewer and electric utilities." (AR DAN000075).

13. On December 19, 2018, the Fire Prevention Officer of the Town's Fire Department stated that the "Fire Department has no comments to submit for" the 2018 ANR plan. (AR DAN000027).

14. On January 2, 2019, Richard Maloney of the Town's Inspectional Services stated that "Inspectional Services has no issue/objection to the ANR request." (AR DAN000023).

15. Shortly before the January 8, 2019, Planning Board meeting, David Fields, Director of Planning & Economic Development for the Town, sent the Planning Board a memorandum stating, in part, that the lots shown on the 2018 ANR plan fronted on public ways and that "vital access to these lots and any buildable portion of these lots is met." Fields recommended that the Planning Board endorse the 2018 ANR as approval not required under the Subdivision Control Law. (AR DAN000003-4).

16. At the January 8, 2019, Planning Board meeting, the Moroses presented a memorandum to support their assertion that only a portion of Lot 2, 28.9 feet, is on a public way. The Moroses argued that is insufficient for the purposes of an endorsement of the 2018 ANR plan. (AR DAN 000044-45, SAR Ex. A).

17. The Board refused to consider the Moroses' memorandum at the hearing. (AR DAN000045).

18. On January 8, 2019, the Board voted to endorse the 2018 ANR plan (decision). (AR DAN000024, DAN000043-45).

19. Ownership of a portion of Lot 2 - part of the former 22 Hardy Street - is currently the subject of an adverse possession claim by the Moroses in a related case pending in this Court entitled James and Janet Morose v. Paul and Karen Fitch, Land Court CA No. 2017-MISC-00680 (the adverse possession case).

Discussion

The Fitches challenge the Moroses' standing to seek certiorari review of the Planning Board's decision to endorse the 2018 ANR plan. A certiorari action is available only if (1) there was a judicial or quasi-judicial proceeding; (2) the plaintiffs lack all other reasonably adequate remedies; and (3) the plaintiffs have suffered a substantial injury or injustice from the proceeding under review. Cumberland Farms, Inc. v. Planning Bd. of Bourne, 56 Mass. App. Ct. 605 , 607 (2002). The Moroses have satisfied the first two elements. See Stefanick, 39 Mass. App. Ct. at 424; Baker v. Town of West Newbury, 26 LCR 430 , 433-434 (2018). The Fitches argue that the Moroses cannot meet the third element because they have not suffered any harm or injustice from the endorsement of the 2018 ANR plan.

The Moroses have no presumption of standing as abutters to Lot 2. Id. at 434. To establish their standing, the Moroses must allege a substantial injury that arises as the direct result of the decision to endorse the 2018 ANR plan. The injury must be to their personal interest, rather than to the public, and must fall within the area of concern of the statute or regulatory scheme under which the injurious action has occurred. Ginther v. Commissioner of Ins., 427 Mass. 319 , 322-323 (1998); Friedman v. Conservation Comm'n of Edgartown, 62 Mass. App. Ct. 539 , 545 (2004); see Enos v. Secretary of Envtl. Affairs, 432 Mass. 132 , 134-136 (2000); Fiske v. Selectmen of Hopkinton, 354 Mass. 269 , 271 (1968); Baker, 26 LCR at 434.

The Moroses identify two bases for injury to their personal interests. First, they say they are harmed because the 2018 ANR plan failed to show their fence and garage as encroaching on the portion of Lot 2 that is the former 22 Hardy Street. Second, they argue that they are uniquely harmed by the inclusion in Lot 2 of the land over which they claim title by adverse possession in the adverse possession case. Neither of these is an injury to a personal interest falling within the area of concern of G.L. c. 41, §81P, that directly resulted from the decision to endorse the 2018 ANR plan. The purpose of §81P is to make clear to registers of deeds that a plan showing a division of lots may be recorded without any approval by the town's planning board under the Subdivision Control Law. Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 , 602 (1980). Such a plan may be endorsed so long as the new lots all have adequate frontage on a public way, a way shown on an approved subdivision plan, or a way in existence at the time of the adoption of the Subdivision Control Law by the municipality that provides for adequate access. G.L c. 41, §§81L, 81P (plan showing lots on such ways is not a subdivision requiring planning board approval and may be so endorsed by the planning board). Thus, the availability of sufficient vehicular access to the newly created lots is "the pivotal criterion for a board's making an ANR decision." Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394 , 396 (2000). In other words, the goal of §§81L and 81P is to ensure that the lots shown on the ANR plan have adequate access. Ball v. Planning Bd. of Leverett, 58 Mass. App. Ct. 513 , 517 (2003).

Neither of the Moroses' purported injuries is connected to or arises from the access to Lot 2. Rather, they claim to be harmed because the 2018 ANR plan does not show the encroachments that form the basis for their claims in the adverse possession case. The alleged failure of the 2018 ANR plan to show those encroachments does not affect the adverse possession case and has nothing to do with whether the 2018 ANR plan shows that Lot 2 has adequate frontage. The Moroses have not shown a harm to their personal interest that falls within the area of concern of §§81L and 81P, the statute or regulatory scheme under which the alleged injurious action has occurred. They have no standing to bring this certiorari action, and their claims must be dismissed.

Even assuming, arguendo, that the Moroses have standing, the Planning Board's decision to endorse the 2018 ANR plan would be affirmed. The Moroses challenge the adequacy of the frontage of Lot 2 as shown on the 2018 ANR plan. The standard of review in a certiorari action of this kind is the substantial evidence standard - that is, whether the record shows that the Planning Board had before it such evidence as a reasonable mind might accept as adequate to support its conclusion. Doherty v. Retirement Bd. of Medford, 425 Mass. 130 , 135 (1997). There is substantial evidence in the record that Lot 2 has sufficient frontage on Hardy Street and that Hardy Street is a public way. The issue, as most fully described in Gates, is whether the access to Lot 2 that is shown on the plan is real or illusory. Gates, 48 Mass. App. Ct. at 395-399. As the Gates court described it, there are two categories of access on public ways. "There is the 'could be better but manageable' category and the 'illusory' category. The first category warrants §81P endorsement; the second does not." Id. at 399. The 2018 ANR plan shows that, while not all of Hardy Street is constructed, there is a constructed cul-de-sac that fronts on Lot 2 and provides actual access to the lot. It falls squarely within the "could be better but manageable" category for access. Based on the record, the Planning Board did not commit an error of law in deciding to endorse the 2018 ANR plan.

Conclusion

For the foregoing reasons, the Motion for Judgment on the Pleadings is ALLOWED. Judgment shall enter affirming the Planning Board's decision to endorse the 2018 ANR plan, declaring that the Planning Board may endorse the 2018 ANR plan as "approval not required under the Subdivision Control Law," and dismissing the Verified Complaint with prejudice.

SO ORDERED