LEO CASAGRANDE & another vs. TOWN CLERK OF HARVARD (and a companion case [Note 1] ).

ABRAMS, J. The controversy before the court centers on whether a tract of land fronting on Sawyer Lane, a statutory private way in the town of Harvard, may be divided without planning board approval as a tract of land as to which approval under the Subdivision Control Law is not required. See G. L. c. 41, Sections 81L, 81P. At issue is whether a "statutory private way" [Note 2] is a "public way" or is a "way

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maintained and used as a public way" and therefore a subdivision on such a way may be made without compliance with the requirements of the Subdivision Control Law. G. L. c. 41, Sections 81K-81GG.

The Casagrandes, owners of the land, claim that their plan does not show a subdivision because all parcels have adequate frontage on Sawyer Lane. The Casagrandes assert that Sawyer Lane is a "public way" or is "maintained and used as a public way" and therefore the plan does not include or involve a "subdivision." G. L. c. 41, Sections 81L, 81P. The judge entered judgments for the town clerk (clerk) and for the planning board of Harvard (planning board), ruling that Sawyer Lane was not a public way or used as such, and that approval under the Subdivision Control Law was therefore required. The Casagrandes filed an appeal, which we transferred to this court sua sponte. We affirm the judgments.

The parties submitted a statement of agreed facts and exhibits, which we summarize as follows. The plan which the Casagrandes submitted to the planning board showed division of their land into sixteen lots all fronting on Sawyer Lane. The planning board was requested to endorse the plan "approval under the subdivision control law not required." See G. L. c. 41, Section 81P. The Casagrandes also submitted to the clerk for endorsement two certificates, one stating that Sawyer Lane is a public way, and the other that Sawyer Lane is maintained and used as a public way. See G. L. c. 41, Section 81L, twelfth par., cl. (a); G. L. c. 233, Section 79F.

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The planning board filed with the clerk a letter stating that the plan constituted a subdivision which required approval. The clerk refused to endorse the certificates as requested by the Casagrandes, stating that she had insufficient knowledge to make any determination. The Casagrandes appealed from the decision of the planning board (G. L. c. 41, Section 81BB), and requested declaratory relief and relief in the nature of mandamus against the clerk. [Note 3]

The Casagrandes own the entire length of Sawyer Lane. Sawyer Lane is a narrow way which begins at Sheehan Road in Littleton, a private way. Although a portion of Sawyer Lane in Littleton is paved, Sawyer Lane in Littleton has never been laid out or accepted as a town way or as a statutory private way. Sawyer Lane in Harvard is a dead-end street accessible by vehicle only over Sheehan Road.

The portion of Sawyer Lane shown on the plan submitted to the planning board is composed of sand and gravel. On the plan submitted to the board Sawyer Lane, which services two houses, varies in width from eight to eleven feet and is too narrow for two vehicles to pass without driving on the grass.

For at least fifty years prior to institution of this action, Harvard maintained Sawyer Lane by removing snow, and by gravelling, grading, and removing brush. [Note 4] In the 1930's the towns of Harvard and Littleton jointly widened Sawyer Lane to facilitate snow plowing. In 1945, the selectmen of Harvard, pursuant to authority from the town meeting, officially named Sawyer Lane; and in 1970, Sawyer Lane was included on a "List of Public Roads." The town of Harvard received reimbursement under G. L. c. 81, Section 26, for the cost of maintaining Sawyer Lane. The planning boards of both Harvard and Littleton

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have previously endorsed, as not requiring approval, plans showing division [Note 5] of parcels bordering on Sawyer Lane. On past deeds and plans Sawyer Lane has been consistently referred to as a private way owned by the Casagrandes or their predecessors in title.

The Casagrandes claim that Sawyer Lane is a "public way" or is "maintained and used as a public way." Thus they assert that the plan they submitted was not a "subdivision" subject to regulation under the Subdivision Control Law, G. L. c. 41, Sections 81K-81GG. A "subdivision" is defined as the division of a tract of land into two or more lots. See G. L. c. 41, Section 81L. However, exempted from the definition is a division in which every lot within the tract "has frontage on (a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way ...." G. L. c. 41, Section 81L, twelfth par., cl. (a). [Note 6]

The Casagrandes claim that Sawyer Lane is a public way although it was laid out by the selectmen of Harvard and accepted by the town meeting as a private way pursuant to Rev. Sts. 1836, c. 24, Section 66, et seq., as amended by c. 86 of the Acts of 1842 (now G. L. c. 82, Section 21, 23). The Casagrandes agree that the record title indicates Sawyer Lane is a private way and that statutory private ways are not expressly mentioned in Section 81L, twelfth par., cl. (a).

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They contend, however, that these facts are not decisive because our prior cases have held statutory private ways to be public ways in substance. See Butchers' Slaughtering & Melting Ass'n v. Boston, 139 Mass. 290, 291 (1885); Davis v. Smith, 130 Mass. 113, 114 (1881); Denham v. County Comm'rs of Bristol, 108 Mass. 202, 204-205 (1871). They also rely on Flagg v. Flagg, 16 Gray 175, 180 (1860), where we held that the public has a right to pass over a statutory private way. Thus, the Casagrandes conclude that statutory private ways are included in the term "public ways." We disagree.

The Legislature created statutory private ways and has, by various statutes, continued to differentiate between statutory private ways and public ways. See, e.g., G. L. c. 41, Sections 74-77; G. L. c. 82, Sections 21-24; G. L. c. 84, Sections 1, 6, 12-14; G. L. c. 85, Sections 3A-3B. See also St. 1975, c. 551, as appearing in St. 1977, c. 693, Section 2 (G. L. c. 40, Section 6N). The Legislature presumably knew of the existing statutes. See Mathewson v. Contributory Retirement Appeal Bd., 335 Mass. 610, 614 (1957). We think the fact that the Legislature chose not to include statutory private ways in Section 81L, twelfth par., cl. (a), is fatal to this aspect of the plaintiffs' claim.

Further, the clear expression of legislative intent in the Subdivision Control Law appears to negate any argument that the failure to include statutory private ways in cl. (a) of Section 81L, twelfth par., was inadvertent or accidental. In G. L. c. 41, Section 81M, planning boards must administer that law with due regard for adequate access to all lots "by ways that will be safe and convenient for travel; for lessening congestion in such ways and in the adjacent public ways; for reducing danger to life and limb in the operation of motor vehicles; for securing safety in the case of fire, flood, panic and other emergencies ...." G. L. c. 41, Section 81M, as amended through St. 1969, c. 884, Section 2.

Sawyer Lane is composed of sand and gravel, and is not wide enough to accomodate two vehicles simultaneously. clearly, Sawyer Lane would not provide safe and convenient

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access to sixteen additional dwellings, and is not adequate for securing safety in case of fire, flood, panic, or other emergencies as required by the Subdivision Control Law. G. L. c. 41, Section 81M.

From a reading of Section 81L and Section 81M it appears that the Legislature did not intend the words "public way" to include statutory private ways. Rather it appears that exemptions or exceptions under cl. (a) of Section 81L, twelfth par., would be limited to public ways or ways maintained and used as public ways so that the standards of Section 81M would be met by most tracts of land qualifying under cl. (a).

Moreover, land use restrictions have been interpreted to effectuate the goal of providing adequate access to new housing developments in other jurisdictions. In Trottier v. Lebanon, 117 N.H. 148, 150 (1977), the court interpreted a zoning ordinance requiring frontage "along the nearest street." The court interpreted "street" to mean an access route suitable for travel because the evident purpose of the provision was to provide access for police and fire departments, as well as other agencies charged with protecting the public peace, safety, and welfare. See also Noble v. Township Comm. of Mendham, 91 N.J. Super. 111, 117-120 (1966). We find this approach persuasive, and conclude that there was no legislative intent to include statutory private ways in Section 81L, twelfth par., cl. (a).

The Casagrandes argue that even if Sawyer Lane is not a "public way," it is "maintained and used as a public way." They argue that the clerk is required, on the basis of the public records, to certify that Sawyer Lane is maintained and used as a public way.

The exemption relied on by the Casagrandes applies only if the way is both maintained and used as a public way. There was some evidence that Sawyer Lane had been maintained by the town of Harvard. However, the Casagrandes did not produce any evidence that Sawyer Lane is actually used as a public way or that Sawyer Lane was maintained as a public way. See G. L. c. 40, Sections 6C, 6D (town may remove ice and snow from private ways open

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to public use). In the absence of such evidence, we cannot say that the clerk was required to certify Sawyer Lane as a way "maintained and used" as a public way.

Since we find that a statutory private way is not as a matter of law a "public way" under the Subdivision Control Law, a development on a statutory private way requires planning board approval under G. L. c. 41, Section 81L, twelfth par., cl. (a), unless it is both maintained and used as a public way.

Judgments affirmed.