Barry v. Planning Bd. of Belchertown

• Decision Date: 29 October 2019
• Docket Number: No. 18-P-723,18-P-723
• Citation: 134 N.E.3d 600,96 Mass.App.Ct. 314
• Court: Appeals Court of Massachusetts
• Parties: Richard G. BARRY & another v. PLANNING BOARD OF BELCHERTOWN & another.

96 Mass.App.Ct. 314

134 N.E.3d 600

Richard G. BARRY & another¹

v.PLANNING BOARD OF BELCHERTOWN & another.²

No. 18-P-723

Appeals Court of Massachusetts, Hampshire..

Argued March 1, 2019

Decided October 29, 2019

Katherine D. Laughman, Boston, for the defendants.

Ryan K. O'Hara, Springfield, for the plaintiffs.

Michael Pill, Northampton, for W.D. Cowls, Inc., amicus curiae, submitted a brief.

Present: Maldonado, McDonough, & Englander, JJ.

ENGLANDER, J.

This case requires us to examine the law regarding so-called "approval not required" (ANR) plans for the division of real estate pursuant to the subdivision control law, G. L. c. 41, §§ 81L and 81P. In particular, we consider whether a 1987 judgment involving the same Belchertown (town) way at issue in this case is entitled to collateral estoppel³ effect offensively, against the town, in connection with a new ANR plan filed for different property by different applicants, almost thirty years later. The motion judge concluded that the 1987 judgment had established that the way -- Munsell Street -- was a "public way," and that, accordingly, the plaintiffs were entitled to ANR approval of their proposed plan, which sought approval for two lots with frontage on Munsell Street. We vacate the judgment, because neither the 1987 judgment nor the evidence of record establish that the portion of Munsell Street at issue is a public way, and because the 1987 judgment -- which required the ANR endorsement of a plan abutting a different portion of Munsell Street -- is not entitled to preclusive effect in this case.

Background. We recite the undisputed facts from the parties' summary judgment materials and the exhibits attached thereto. Munsell Street has existed on the ground since at least the 1800s, although the condition of the way has varied through the years, and Munsell Street's condition currently varies greatly along its length. The street runs westerly, from its beginning at an intersection with Gold Street. In 1990, the town formally accepted the first 2,730 feet of Munsell Street as a public way. Munsell Street is improved up to a point just short of the end of that acceptance. Beyond that point the road becomes a gravel road, which "dwindles" as one moves further west. The motion judge stated that "[t]here is no question that, at some point, Munsell Street becomes impassable to most vehicles, after which it is no more than a remote trail that may meet up with an old path in neighboring Pelham."

This case involves the portion of Munsell Street beyond the termination point of the formal acceptance. On January 23, 2015, Richard G. Barry⁴ (applicant) filed with the planning board of Belchertown (board) an application seeking an ANR endorsement pursuant to G. L. c. 41, § 81P. The accompanying plan showed two lots, lots A and B, each with 140 feet of frontage on Munsell Street.⁵ Lot A fronts on the accepted portion of Munsell Street. Lot B does not; its eastern boundary coincides with the end of the accepted way, so that the entirety of lot B fronts on a portion of Munsell Street that has not been formally accepted.

The board denied the application on the ground that the portion of Munsell Street fronting lot B did not meet the criteria for frontage contained in G. L. c. 41, § 81L. The board further concluded that lot B included land, specifically the portion of Munsell Street that fronts lot B, that had been required to be dedicated to open space as a condition of approval of the neighboring Oasis Drive subdivision. The board's decision also incorporated the opinion of town counsel noting that the portion of Munsell Street fronting lot B "is simply an old dirt/gravel path that is rutted and only passable by four-wheel drive vehicles," and "[t]he Planning Board would therefore be justified in determining that the way does not contain adequate width grade or construction to provide access for new residential development."

On cross motions for summary judgment, a Superior Court judge granted summary judgment to the applicant. The judge reasoned that the 1987 judgment of the Superior Court established that Munsell Street is a public way and, applying principles of issue preclusion, ordered the board to endorse the plan as "Approval under Subdivision Control Law not required." The judge also concluded that because Munsell Street was a public way, it could not have been transformed into "open space" by a condition imposed during subdivision approval. The judge accordingly ordered the entry of a declaratory judgment that the full length of Munsell Street is a public way. The town appeals.

Discussion. The focus of the applicant's summary judgment motion was not that Munsell Street in front of lot B actually meets the § 81L criteria for adequate frontage, but rather that the board is collaterally estopped from denying that Munsell Street meets the criteria of § 81L. The principal question before us, therefore, is whether the 1987 judgment precludes the town from refusing to grant ANR approval for lots fronting on the applicable portion of Munsell Street. Before diving into the details of the 1987 litigation, and the other relevant history of property development along Munsell Street, it will be helpful to have the legal framework in mind.⁶

A. Legal principles applicable to ANR endorsements. A principal purpose of the subdivision control law is to ensure that all newly created lots have adequate access "by ways that will be safe and convenient for travel," G. L. c. 41, § 81M, because residents' "safety, convenience, and welfare depend critically on that factor." Palitz v. Zoning Bd. of Appeals of Tisbury, 470 Mass. 795, 803, 26 N.E.3d 175 (2015), quoting Gifford v. Planning Bd. of Nantucket, 376 Mass. 801, 807, 383 N.E.2d 1123 (1978). To that end, c. 41 requires that any plan showing a "subdivision" of property must be approved by the local planning board. G. L. c. 41, §§ 81L, 81O. A plan does not require planning board approval, however, if it does not show a "subdivision"; 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. See Ninety Six, LLC v. Wareham Fire Dist., 92 Mass. App. Ct. 750, 753, 94 N.E.3d 397 (2018). See also Palitz, supra at 796, 26 N.E.3d 175.

The statutory term "subdivision" is defined in § 81L in the negative -- by setting forth what is not a subdivision. Under § 81L, a plan does not show a "subdivision" if after division, every proposed lot (1) has the required frontage (2) on a way that meets any one of three criteria, each of which is relevant to our analysis herein: (a) the way is "a public way" or "a way which the [town clerk] certifies is maintained and used as a public way" (clause a); or (b) the way is "shown on a plan theretofore approved and endorsed in accordance with the subdivision control law" (clause b); or (c) 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" (clause c). G. L. c. 41, § 81L. We have said before that "[w]here 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." Palitz, 470 Mass. at 803, 26 N.E.3d 175, quoting Gifford, 376 Mass. at 807, 383 N.E.2d 1123.

As indicated, the decision at issue was based upon the judge's conclusion that Munsell Street was previously adjudicated to be a public way, and thus satisfied clause a of § 81L. There are specific legal criteria for establishing a "public way," however, as not every way open to the public is a "public way." W.D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct. 18, 19, 385 N.E.2d 521 (1979) ("[T]here can be private ways, which are defined ways for travel, not laid out by public authority or dedicated to public use, that are wholly the subject of private ownership, which are open to public use ..." [quotations and citation omitted] ). Under our cases there are three means by which a way may qualify as a public way: "(1) a laying out by public authority in the manner prescribed by statute ...; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use ... coupled with ... acceptance by the public." Moncy v. Planning Bd. of Scituate, 50 Mass. App. Ct. 715, 716, 741 N.E.2d 82 (2001), quoting Fenn v. Middleborough, 7 Mass. App. Ct. 80, 83-84, 386 N.E.2d 740 (1979). "If a road has never been dedicated and accepted, laid out by public authority, or established by prescription, such a road is private." W.D. Cowls, Inc., supra.

B. The Pharmer litigation and development on Munsell Street. It is not disputed that the portion of Munsell Street beginning at Gold Road and ending at the westerly end of lot A is a public way, lawfully accepted by the town in 1990. The portion beyond lot A (including the frontage for lot B), however, was not formally accepted in 1990, and stands on different footing. The applicants contended below that the board is bound by factual and legal issues decided in Pharmer v. Belchertown, Superior Ct., No. 82-098 (July 21, 1987), and is estopped from denying that Munsell Street satisfies the requirements of § 81L. The applicant also points to a 1975 Land Court confirmation proceeding (without registration) wherein the confirmed plan identified Munsell Street as a public way. For its part, the town contends that issue preclusion is inappropriate, at least in part based upon changed circumstances arising from the 2007 Oasis Drive subdivision approval -- because the Oasis Drive approval was conditioned upon the portion of Munsell Street west of the accepted way (including the portion fronting lot B) being...