Rettig v. Planning Bd. of Rowley

• Decision Date: 05 April 1955
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Heinz RETTIG and another, v. PLANNING BOARD OF ROWLEY.

Page 104

126 N.E.2d 104

332 Mass. 476

Heinz RETTIG and another, v. PLANNING BOARD OF ROWLEY.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 7, 1955.

Decided April 5, 1955.

James T. Connolly, Newburyport, for plaintiff.

Bernard J. Lojko, Town Counsel, Newburyport, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and WILLIAMS, JJ.

WILKINS, Justice.

The plaintiffs are landowners in Rowley. They submitted to the defendant planning board a plan of a portion of their land entitled 'Rowley Hills Section E' for a determination by the board that approval under the subdivision control law was not required, and, after a determination by the board that in its opinion the plan required approval, brought this bill in equity by way of appeal. G.L.(Ter.Ed.) c. 41, §§ 81P, 81 BB, as appearing in St.1953, c. 674, § 7. The Superior Court entered a final decree that the plan does not require such approval, and the board appealed to this court.

The facts appear in the findings of the judge and in the plan, which is certified to us as an exhibit. The judge heard the case on a statement of agreed facts and took a view. The land shown on the plan and other adjacent property were owned by one Fenno from 1909 until her death in 1952. The plaintiffs purchased from her estate, and intend to divide their land into lots and to sell to individuals. The four ways shown on the plan were constructed many years before the subdivision control law became effective in Rowley in 1951, and were in existence and in use for vehicular traffic by Fenno, her tenants, guests and servants as a means of access to the premises shown on the plan and to other portions of her real estate. Although others had had rights to use these ways prior to 1909, after Fenno became the owner only she and those claiming under her could use them. In 1951 the public had no such right. Fenno Drive, 18 to 25 feet wide, is a well constructed road, suitable for vehicular traffic, equivalent in width and general physical condition to Kittery Avenue, a public way, with which it connects, except that the latter has a hard top surface and Fenno Drive has a gravel surface. Mansion Drive, running off Fenno Drive in a westerly direction, is twenty feet wide and similar in construction to Fenno Drive and suitable for vehicular traffic. Bowlery Drive, leading off Mansion Drive in a northerly direction, is a rough country road, 14 feet wide, and is traversable by vehicular traffic, though broken and sunken in spots on the day of the view owing to heavy rainfall. Orchard Drive, 10 feet wide, leading off Bowlery Drive in an easterly direction, indicates usage as a roadway for vehicular traffic, but is in a poor state of repair. The outlines of a roadway and ruts are visible. The roadway was impassable on the day of the view owing to heavy rainfall.

The judge ruled that the plan does not require the approval of the planning board under the subdivision control law, G.L. (Ter.Ed.) c. 41, §§ 81K-81GG, as appearing in St.1953, c. 674, § 7, 'inasmuch as the ways in question, namely, Fenno Drive, Mansion Drive, Bowlery Drive and Orchard Drive, were all existing and adequate for access for vehicular traffic to the lots shown on said plan when the subdivision control law became effective in said Rowley.'

The procedure in the Superior Court is prescribed in § 81BB, which is in part: 'Any person * * * aggrieved * * * by any decision of a planning board concerning a plan of a subdivision * * * may appeal to the superior court sitting in equity for the county in which the land concerned is situated * * *. The court shall hear all pertinent evidence and determine the facts, and upon the facts so determined, shall annul such decision if found to exceed the authority of such board, or make such other decree as justice and equity may require. The foregoing remedy shall be exclusive, but the parties shall have all rights of appeal and exceptions as in other equity cases.' This language is substantially similar to that of G.L. (Ter.Ed.) c. 40, § 30, as appearing in St.1933, c. 269, § 1, as amended, relative to appeals from decisions of local boards of appeal, and to that of St.1924, c. 488, § 19, as appearing in St.1941, c. 373, § 18, concerning appeals under the zoning law of Boston, both of which we have had recent occasion to consider. Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 116 N.E.2d 570; Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 120 N.E.2d 916; Cefalo v. Board of Appeal of Boston, 332 Mass. ----, 124 N.E.2d 247; Sheehan v. Board of Appeals of Saugus, 332 Mass. ----, 124 N.E.2d 253. The duty of the judge was to conduct a hearing de novo and on the facts he should find to rule upon the validity of the determination of the planning board. The course followed was procedurally correct.

The basic provision of the subdivision control law is found in G.L. (Ter.Ed.) c. 41, § 81O, as appearing in...