Perry v. Planning Bd. of Nantucket

• Decision Date: 17 January 1983
• Parties: Lindsey R. PERRY v. PLANNING BOARD OF NANTUCKET (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 389

444 N.E.2d 389

15 Mass.App.Ct. 144

Lindsey R. PERRY v. PLANNING BOARD OF NANTUCKET (and a companion case

¹

).

Appeals Court of Massachusetts,

Nantucket.

Argued Nov. 3, 1982.

Decided Jan. 17, 1983.

Charles A. Goglia, Jr., Town Counsel, Wellesley, for defendant.

Theodore L. Tillotson, Boston (Paul Killeen, Sherburne, Powers & Needham, Boston, with him), for plaintiff.

Before BROWN, GREANEY and DREBEN, JJ.

GREANEY, Justice.

These are appeals by the planning board of the town of Nantucket (board) from judgments of the Superior Court (G.L. c. 41, § 81BB) annulling the board's decisions refusing endorsements under G.L. c. 41, § 81P, ² as appearing in St.1963, c. 363, § 1, that "approval under the subdivision control law [was] not required" (an 81P endorsement) in two cases involving plans submitted by the plaintiff, Lindsey R. Perry. ³ The judgments ordered the board to place an 81P endorsement on each plan.

The cases were decided on a "Statement of Agreed Facts," incorporating various exhibits from which we draw this summary. The plan in the first case (figure 1) was submitted to the board by Perry on or about July 13, 1981, and shows the proposed division of a tract into two lots (748 and 749).

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The Nantucket zoning by-law requires that each buildable lot in the relevant district have frontage of at least seventy-five feet on a way. Both lot 748 and 749 meet that requirement along Oakland Street, a way which has appeared on town plans at least since 1927. By an order of taking registered with the Land Court in 1962, the county commissioners of Nantucket took "an easement ... for the purposes of a public highway" in the land designated as Oakland Street. Despite its depiction on town plans, and the taking of the easement, Oakland Street has not been constructed on the ground. In denying Perry an 81P endorsement, the board decided that the plan constituted a subdivision because "the lots do not have frontage on a way as defined in [G.L. c. 41, s] 81L of the Subdivision Control Act."

The plan in the second case (figure 2) was submitted by Perry to the board on or about July 27, 1981, and shows a single triangular shaped lot (750), which has more than seventy-five feet of frontage along each of Oakland Street, Wyoming Avenue, and Midland

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Avenue. Oakland Street is the public way previously described. Wyoming Avenue is a "paper street" which, although shown on a Land Court plan, has not been constructed on the ground. By the 1962 order of taking referred to previously, the county took an easement for highway purposes in the land designated as Midland Avenue and, according to the stipulated facts, there is "an existing street or way located on the ground within the location of Midland Avenue." In denying an 81P endorsement, the board decided that this plan also depicted a subdivision because lot 750 lacked "frontage on a way described in [s] 81L of the Act." A composite of the lots and ways shown on the plans (which were filed with the board for action at different meetings) is shown in figure 3.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

After considering these facts and the exhibits, and after taking a view, the judge ruled that the proposed lots had "adequate access to public ways." She concluded that the board could not deny an 81P endorsement to either plan because, in its opinion, the public ways upon which the lots front are inadequate for the needs of vehicular traffic or the installation of municipal services. This conclusion represented a ruling of law that frontage of the proposed lots on a public way alone is sufficient to require an 81P endorsement without regard to whether the way has been built at all, or if it does exist, whether the way provides adequate access to the lots.

1. A "subdivision" for purposes of the subdivision control law, G.L. c. 41, §§ 81K-81GG, is defined as "the division of a tract of land into two or more lots ...." G.L. c. 41, § 81L, as amended through St.1979, c. 534. A division is excluded from the definition of a subdivision by G.L. c. 41, § 81L, twelfth par., cl. (a), if "at the time when [the division] is made, every lot within the tract so divided has frontage on ... a public way ...." The question for decision is what is intended by the term "public way" in this exclusion.

The Legislature provided, in G.L. c. 82, §§ 1-16, for the layout and establishment of highways within municipalities by county commissioners. In the ordinary case, the commissioners create the way by "laying it out" (i.e. fixing the way's termini, prescribing its boundaries, establishing it as a public easement of travel, and making any necessary land takings, see Charlestown Branch R.R. Co. v. County Commrs. of Middlesex, 7 Met. 78, 84 [1843]; Fuller v. Mayor and Aldermen of Springfield, 123 Mass. 289 291 [1877]; Leahy v. Street Commrs. of Boston, 209 Mass. 316, 317, 95 N.E. 834 [1911] ), and by having the way built on the ground according to the directions and timetable set out in the commissioners' return under G.L. c. 82, § 8. When the way is completed, the municipality is required, among other things, to repair and maintain it, and the municipality becomes liable for damages caused by defects. See G.L. c. 84, §§ 1, 15 and 22. There is little doubt that the various statutes regulating the establishment and maintenance of public ways are designed to ensure safe and efficient access to the dwellings and buildings on abutting lands.

The Legislature presumably knew of the existing body of statutory law pertaining to public ways when it enacted the exemption from subdivision control contained in G.L. c. 41, § 81L, twelfth par., cl. (a). See generally Mathewson v. Contributory Retirement Appeal Bd., 335 Mass. 610, 614, 141 N.E.2d 522 (1957). Cf. Casagrande v. Town Clerk of Harvard, 377 Mass. 703, 707, 387 N.E.2d 571 (1979). The exemptions from subdivision control contained in § 81L, twelfth par., are important components of the subdivision control law which itself creates a "comprehensive statutory scheme," see Constanza & Bertolino, Inc. v. Planning Bd. of No. Reading, 360 Mass. 677, 679, 277 N.E.2d 511 (1971); Cassani v. Planning Bd. of Hull, 1 Mass.App. 451, 458, 300 N.E.2d 746 (1973); Nantucket Land Council, Inc. v. Planning Bd. of Nantucket, 5 Mass.App. 206, 208, 361 N.E.2d 937 (1977), and which includes among its express purposes the protection of the "safety, convenience and welfare of the inhabitants of the cities and towns" by means of regulation of "the laying out and construction of ways in subdivisions providing access to the several lots therein ...." G.L. c. 41, § 81M, as amended through St. 1969, c. 884, § 2. We note that the Legislature has provided, consistent with these goals, that planning boards are to administer the law "with due regard for the provision of adequate access to all of the lots in a subdivision 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; ... [and] for securing adequate provision for ... fire, police, and other similar municipal equipment ...." Ibid. We note further that the exclusions set out in § 81L, twelfth par., which excuse a plan from subdivision approval, ⁴ thereby providing a basis for an 81P endorsement, do so with reference to specific objective criteria apparently chosen by the Legislature for the quality of access they normally provide. See Gifford v. Planning Bd. of Nantucket, 376 Mass. 801, 807, 383 N.E.2d 1123 (1978). See also Smalley v. Planning Bd. of Harwich, 10 Mass.App. 599, --- and n. 5, ---, 410 N.E.2d 1219 (1980). We conclude that whatever status might be acquired by ways as "public ways" for purposes of other statutes by virtue of their having been "laid out," see generally Fenn v. Middleborough, 7 Mass.App. 80, 83-84, 386 N.E.2d 740 (1979), such ways will not satisfy the requirements of the "public way" exemption in § 81L, twelfth par., cl. (a), of the subdivision control law, unless they in fact exist on the ground in a form which satisfies the previously quoted goals of § 81M.

Decisions which discuss the purposes of §§ 81L, 81M, and 81P, support this conclusion. It has been "emphasized repeatedly that a principal object of the law is to ensure efficient vehicular access to each lot in a subdivision, for safety, convenience, and welfare depend critically on that factor." Gifford v. Planning Bd. of Nantucket, 376 Mass. 801, 807, 383 N.E.2d 1123 (1978), and cases cited. In Gifford, the "frontage on a public way" exclusion in § 81L, twelfth par., cl. (a), was construed and applied in light of the purposes set out in § 81M, to deny an 81P endorsement to a plan showing division of a parcel into forty-six lots which met the frontage requirements of the Nantucket zoning by-law, but which left "the main portions of some of the lots practically inaccessible from their respective borders on a public way." ⁵ 376 Mass. at 808-809, 383 N.E.2d 1123. The Gifford court (at 807) explained the theory underlying an 81P endorsement in these terms: "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. The guaranty is expressed in §§ 81L and 81P of the statute in terms of a requirement of sufficient frontage for each lot on a public way. In the ordinary case, lots having such a frontage are fully accessible, and as the developer does not contemplate the construction of additional access routes, there is no need for supervision by the planning board on that score." The Supreme Judicial Court has also recognized...