Shea v. Board of Appeals of Lexington

• Decision Date: 23 November 1993
• Docket Number: No. 92-P-273,92-P-273
• Citation: 622 N.E.2d 1382,35 Mass.App.Ct. 519
• Parties: John H. SHEA, trustee 1 , v. BOARD OF APPEALS OF LEXINGTON.
• Court: Appeals Court of Massachusetts

Page 1382

622 N.E.2d 1382

35 Mass.App.Ct. 519

John H. SHEA, trustee ¹, v. BOARD OF APPEALS OF LEXINGTON.

No. 92-P-273.

Appeals Court of Massachusetts Middlesex.

Argued March 24, 1993.

Decided Nov. 23, 1993.

J. Owen Todd, Boston, for plaintiff.

Arthur P. Kreiger, Cambridge, for defendant.

Before ARMSTRONG, BROWN and PORADA, JJ.

ARMSTRONG, Justice.

In 1913, before any of the events on which the plaintiff's appeal is predicated and before subdivision control was adopted in Lexington, the land on which the plaintiff's lot is situated was shown on a subdivision plan filed by one Wilbur and recorded in the Middlesex (South) registry of deeds. The plan depicted Rockville Avenue as an east-west street, running from Philip Road on the west to Swan Lane on the east and intersected by William Avenue (shown on later plans as Davis Road). Four adjacent lots shown on that plan (67, 68, 69, and 70), located at the southeast corner of the intersection and fronting on Rockville Avenue, were conveyed to the plaintiff by deed in 1978. In 1978, the plaintiff submitted a plan to the planning board showing lots 67 and most of 68 combined as a new lot 1 and the remainder of lot 68 and all of lots 69 and 70 combined as a new lot 2. Lots 1 and 2 were shown as having frontage on Rockville Avenue of, respectively, 122.2 feet and 125 feet. The plan was endorsed as not requiring approval under the Subdivision Control Law. See G.L. c. 41, § 81P. In 1991 the plaintiff, having apparently conveyed the corner lot, lot 1, with a house to one Heitman, was granted registration of lot 2 by decree of the Land Court.

In 1980 the plaintiff applied for a building permit for lot 2. This was denied by the building commissioner on the ground that the portion of Rockville Avenue on which the lot fronted was not considered to be a street. The board of appeals affirmed the denial, rejecting the argument by plaintiff's counsel that the planning board's endorsement of "approval not required," with no indication on the plan that lot 2 lacked the requisite frontage (125 feet) on a street to be a buildable lot under the zoning by-law, should bind the town for zoning purposes, at least as to the lot's having frontage on a street. In the Superior Court, the plaintiff sought and obtained a partial summary judgment declaring that "Rockville Avenue is a way approved pursuant to [the] Subdivision Control Law by operation of [G.L. c. 41, § 81FF]." This was not a final judgment, not carrying the finding prescribed by Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), and the judge who undertook to complete the case in effect reversed the partial summary judgment and affirmed the decision of the board. The plaintiff appealed.

It is uncontested that Rockville Avenue is a paved road with houses in the section that runs from Swan Lane west to the plaintiff's lot line, including the first ten feet in front of his lot. The paving stops at that point, and Rockville Avenue becomes a path, some fifteen feet in width, wooded on both sides, with boulders and ledge outcroppings, descending at an increasingly steep slope (starting at eight and one-half percent, reaching thirteen and one-half percent at the plaintiff's west lot line, and reaching nineteen and one-half percent thereafter) to the Davis Road intersection. The relatively short portion of Rockville Avenue from Davis Road west to Philip Road is paved and sidewalked. Plainly the short unpaved section of Rockville Avenue that borders the plaintiff's lot and lot 1 is not suitable in fact for vehicular travel, except perhaps by four-wheel drive, all-terrain vehicles during nonwinter months.

The Lexington zoning by-law requires frontage on a "street." The by-law definition of "street" tracks the wording of G.L. c. 41, § 81L, defining "subdivision" to exclude divisions which show every resulting lot to have the requisite frontage for buildability on (a) a public way, (b) a way shown on a previously approved subdivision plan, or (c) a way that predates subdivision control that has, in the planning board's opinion, width, grades, and construction suitable and adequate for vehicular traffic and the installation of utilities.

The plaintiff's argument centers on (b): his contention is that his 125 plus ² feet of frontage on Rockville Avenue is frontage on a "street," as required by the Lexington zoning by-law, because Rockville Avenue has the status of a way shown on an approved subdivision plan. To be sure (as he recognizes), the planning board has never in fact approved a plan incorporating the portion of Rockville Avenue east of Davis Road (G.L. c. 41, § 81U), but it has, on two occasions, endorsed such plans as not requiring approval under the Subdivision Control Law (G.L. c. 41, § 81P). ³ His argument is that, under § 81FF, when he obtained registration of his lot, shown as bounded by Rockville Avenue, his plan became "for the purposes of the subdivision control law [one] deemed to be, and ... invested with all the rights and privileges of, a plan approved pursuant to said law." ⁴

The operation of that sentence is not altogether clear, because the court is required under § 81FF to verify only that a plan of subdivision either has been approved by the planning board "or would otherwise be entitled ... to be recorded in the registry of deeds." A plan endorsed "approval not required" under § 81P is entitled to recordation under the first paragraph of § 81X. If, as the plaintiff argues, registration elevates a § 81P endorsement to the level of a § 81U approval, it is clear from the express language of § 81FF that it does so only "for the purposes of the subdivision control law." At most, then, a registration under § 81FF, like a § 81P endorsement, gives the lots shown on the plan no standing as lawful lots under a zoning code. See Smalley v. Planning Bd. of Harwich, 10 Mass.App.Ct. 599, 603, 410 N.E.2d 1219 (1980), and cases cited; Arrigo v. Planning Bd. of Franklin, 12 Mass.App.Ct. 802, 807, 429 N.E.2d 355 (1981); Corrigan v. Board of Appeals of Brewster, 35 Mass.App.Ct. 514, 622 N.E.2d 1379 (1993). Even for purposes of the Subdivision Control Law, a planning board acts "properly [in] deny[ing] an 81P endorsement because of inadequate access, despite technical compliance with frontage requirements, where access is nonexistent for the purposes set out in § 81M." Perry v. Planning Bd. of Nantucket, 15 Mass.App.Ct. 144, 153, 444 N.E.2d 389 (1983) (plan showing frontage on two paper ways, one an unconstructed "public way," the other shown on a Land Court plan but not constructed on the ground).

Not only for the good of the homeowner, but also for the safety of the public, a town can insist that homes not be built on lots lacking...